per se rule in New York

1997Agreeing with the Legislature that this finality interest was "formidable,” and concluding that fairness to defendants would not be unduly compromised by an inquiry into prejudice, we refused to "eviscerate the language of CPL 440.10 (1) (f)” and held that a prejudice standard — not a per se rule — was applicable to Rosario violations raised by postappeal CPL 440.10 motions (People v Jackson, 78 NY2d, at 647 , supra).

1996Accordingly, since the defendant’s direct appeal had not been exhausted when he made his CPL 440.10 motion, the per se error rule is applicable, and the judgment of conviction must be vacated (see, People v Rosario, 9 NY2d 286 ; People v Ranghelle, 69 NY2d 56 ; People v Young, 79 NY2d 365 ; People v Jackson, 78 NY2d 638 ).

2023In other words, "where the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct" ( People v Arnau , 58 NY2d 27, 35 [1982], cert denied 468 US 1217 [1984]; see People v Elder , 173 AD3d at 1345; People v Jordan , 154 AD3d at 1177 ).

2022With respect to the exception at issue on appeal, "where the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct" ( People v Arnau , 58 NY2d 27, 35 [1982], cert denied 468 US 1217 [1984]). "[T]he independent source rule is applicable[ where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure" ( id. at 34).

2015A spouse’s “ability to become self-supporting with respect to some standard of living in no way (1) obviates the need for the court to consider the predivorce standard of living; and (2) certainly does not create a per se bar to lifetime maintenance” (Hartog v Hartog, 85 NY2d 36, 52 [1995] [citation and emphasis omitted]; accord Bean v Bean, 53 AD3d 718, 723 [2008]).

2015A spouse’s “ability to become self-supporting with respect to some standard of living in no way (1) obviates the need for the court to consider the predivorce standard of living; and (2) certainly does not create a per se bar to lifetime maintenance” (Hartog v Hartog, 85 NY2d 36, 52 [1995] [citation and emphasis omitted]; accord Bean v Bean, 53 AD3d 718, 723 [2008]).

2012Even in such cases, however, we have not adopted a per se rule (see McDonald, 68 NY2d at 11 n 5).

1992(People v Alicea, 61 NY2d 23, 30-31 [1983]; People v McDonald, 68 NY2d 1, 11-12 , and n 5 [1986]; People v Winkler, 71 NY2d 592, 597-598 [1988]; Cuyler v Sullivan, 446 US 335, 349-350 [1980], supra.) This "is not quite the per se rule” (Strickland v Washington, supra, at 692; see, United States v Cronic, supra, at 659; Cuyler v Sullivan, supra, at 349-350 ) since the defendant bears a burden of persuasion.

2009The failure to provide safety devices constitutes a per se violation of the statute and subjects owners and contractors to absolute liability, as a matter of law, for any injuries that result from such failure since workers “ ‘are scarcely in a position to protect themselves from accident.’ ” (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985], quoting Koenig v Patrick Constr.

2003The failure to provide such safety devices constitutes a per se violation of the statute and subjects owners and contractors to absolute liability as a matter of law for any injuries that result from such failure (see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521 [1985]).

2025"A violation of the right to an open trial is not subject to harmless error analysis and a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee" ( People v Martin , 16 NY3d at 613 [internal quotation marks omitted]; see People v Muhammad , 40 NY3d at 34-35).

2019The court's error requires reversal of the conviction ( see People v Martin , 16 NY3d 607, 613 [2011] ["violation of the right to an open trial is not subject to harmless error analysis"]; People v Moise , 110 AD3d 49, 53 [1st Dept 2013] ["there is a per se rule of reversal when the right to a public trial is violated, regardless of prejudice"]).

2012Even assuming, arguendo, that there is a “triviality” exception to the per se rule of reversal set forth in Martin (see Gibbons v Savage, 555 F3d 112, 119-121 [2009], cert denied 558 US —, 130 S Ct 61 [2009]), we conclude that neither the duration of the courtroom closure in this case nor the substance of the proceedings taking place during the closure may be characterized as “trivial” (cf. id. at 121).

2012Even assuming, arguendo, that there is a “triviality” exception to the per se rule of reversal set forth in Martin (see Gibbons v Savage, 555 F3d 112, 119-121 [2009], cert denied 558 US —, 130 S Ct 61 [2009]), we conclude that neither the duration of the courtroom closure in this case nor the substance of the proceedings taking place during the closure may be characterized as “trivial” (cf. id. at 121).

2022The Court of Appeals has set forth five factors for evaluating constitutional speedy trial claims, namely: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" ( People v Taranovich , 37 NY2d 442, 445 [1975]).

1981Such a per se rule has repeatedly been rejected (see People v Taranovich, supra, p 445 ; People v Bryant, supra, p 337).

2018The Court has explained that "[a] violation of the right to an open trial is not subject to harmless error analysis and 'a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee' " ( id. at 613 , citing People v Jones , 47 NY2d 409, 417 [1979]).

2011It did not, and that is all this Court needs to decide” (558 US at —, 130 S Ct at 725 ). *613 A violation of the right to an open trial is not subject to harmless error analysis and “a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee” (People v Jones, 47 NY2d 409, 417 [1979]).

2015There is no merit to the defendant’s contention that his entry of a plea of guilty to all counts of the indictment while represented by counsel, despite counsel’s knowledge that the court would impose maximum sentences on each, should be viewed as ineffective assistance of counsel “per se.” No decisional authority recognizes a per se standard in a plea proceeding, and we examine the issue with reference to counsel’s overall performance under both the federal standard (see Strickland v Washington, 466 US 668 [1984]) and the New York standard (see People v Baldi, 54 NY2d 137 [1981]).

1992(See, Powell v Alabama, 287 US 45 [1932]; People v Hilliard, 73 NY2d 584 [1989]; United States v Cronic, supra, at 659-660; Strickland v Washington, supra, at 692.) Such circumstances "are so likely to prejudice the ac cused that the cost of litigating their effect in a particular case is unjustified” (United States v Cronic, supra, at 658; see, People v Felder, supra, at 296) and a per se rule of error applies which allots no burden to the defendant beyond establishing the denial of counsel.

2012Furthermore, the dissent’s suggestion that the defendant’s trial counsel in this case procured a more favorable disposition with regard to his own charges by failing to zealously represent the defendant at trial is unsupported by the record and is manifestly inconsistent with the evidence of meaningful representation afforded by trial counsel, who provided vigorous and competent representation to the defendant at every stage of the proceed ings (see People v Thomas, 201 AD2d 687, 688 [1994]; People v Carney, 179 AD2d 818, 819 [1992]).

1994In any event, the defendant’s claim that this situation warrants application of a per se rule of ineffective assistance of counsel is without merit (see, e.g., People v Carney, 179 AD2d 818 ).

2012Although the dissent is correct that Baker did not create a per se rule against “fees on fees” in all cases (see Posner v S. Paul Posner 1976 Irrevocable Family Trust, 12 AD3d 177, 179 [2004]), an analysis of section 6.8 of the operating agreements and Limited Liability Company Law § 420, under the applicable principles of statutory and contractual interpretation, and in light of the public policy of the State of New York, does not support the award of fees on fees in this case.

2012Sys. . . . created a per se rule against fees on fees.” (Posner v S. Paul Posner 1976 Irrevocable Family Trust, 12 AD3d 177 , 179 [1st Dept 2004].) To the contrary, we have found that “persuasive if not binding authority strongly suggests that statutes creating a right to attorneys’ fees are served by [the] allowance [of fees on fees].” (Kumble v Windsor Plaza Co., 161 AD2d 259, 261 [1st Dept 1990], lv denied 76 NY2d 709 [1990] [finding that a “fee on a fee” was authorized under Real Property Law § 234, the fee-shifting statute in landlord-tenant litigation]; see e.g.

1992(People v Alicea, 61 NY2d 23, 30-31 [1983]; People v McDonald, 68 NY2d 1, 11-12 , and n 5 [1986]; People v Winkler, 71 NY2d 592, 597-598 [1988]; Cuyler v Sullivan, 446 US 335, 349-350 [1980], supra.) This "is not quite the per se rule” (Strickland v Washington, supra, at 692; see, United States v Cronic, supra, at 659; Cuyler v Sullivan, supra, at 349-350 ) since the defendant bears a burden of persuasion.

1992As the Court of Appeals held in People v Winkler ( 71 NY2d 592, 596 ), "fees contingent upon achieving a specific result in a criminal case are wrong * * * [yet] such agreements do not collaterally constitute a per se violation of a criminal defendant’s constitutional right to effective assistance of counsel”.

2025On the other hand, although an EIS is presumptively required for type I actions (see, Matter of Town of Dickinson v. County of Broome , 183 AD2d 1013, 1014 [3d Dept 1992]), it is not a per se requirement ( see Matter of Save the Pine Bush v. Planning Bd. of Town of Guilderland , 217 AD2d 767 [3d Dept 1995]] lv. denied 87 NY2d 803 [1995]) However, if an agency issues a negative declaration, eliminating the need for an EIS, it can only do so after it has "identified the relevant areas of environmental concern," taken "a 'hard look' at them, and "made a 'reasoned elaboration of the basis for its

2025On the other hand, although an EIS is presumptively required for type I actions (see, Matter of Town of Dickinson v. County of Broome , 183 AD2d 1013, 1014 [3d Dept 1992]), it is not a per se requirement ( see Matter of Save the Pine Bush v. Planning Bd. of Town of Guilderland , 217 AD2d 767 [3d Dept 1995]] lv. denied 87 NY2d 803 [1995]) However, if an agency issues a negative declaration, eliminating the need for an EIS, it can only do so after it has "identified the relevant areas of environmental concern," taken "a 'hard look' at them, and "made a 'reasoned elaboration of the basis for its

1992(People v Alicea, 61 NY2d 23, 30-31 [1983]; People v McDonald, 68 NY2d 1, 11-12 , and n 5 [1986]; People v Winkler, 71 NY2d 592, 597-598 [1988]; Cuyler v Sullivan, 446 US 335, 349-350 [1980], supra.) This "is not quite the per se rule” (Strickland v Washington, supra, at 692; see, United States v Cronic, supra, at 659; Cuyler v Sullivan, supra, at 349-350 ) since the defendant bears a burden of persuasion.

1992(People v Alicea, 61 NY2d 23, 30-31 [1983]; People v McDonald, 68 NY2d 1, 11-12 , and n 5 [1986]; People v Winkler, 71 NY2d 592, 597-598 [1988]; Cuyler v Sullivan, 446 US 335, 349-350 [1980], supra.) This "is not quite the per se rule” (Strickland v Washington, supra, at 692; see, United States v Cronic, supra, at 659; Cuyler v Sullivan, supra, at 349-350 ) since the defendant bears a burden of persuasion.

1993Finally, since counsel’s alleged drug addiction and sleeping during trial are not a per se violation of the defendant’s right to effective assistance of counsel (see, People v Tippins, 173 AD2d 512 , cert denied — US —, 112 S Ct 952 ; People v Badia, 159 AD2d 577 ), the defendant was only entitled to a hearing on his motion if he established that the totality of the circumstances of the case showed that counsel failed to provide meaningful representation (see, People v Tippins, supra; People v Badia, supra).

1993Finally, since counsel’s alleged drug addiction and sleeping during trial are not a per se violation of the defendant’s right to effective assistance of counsel (see, People v Tippins, 173 AD2d 512 , cert denied — US —, 112 S Ct 952 ; People v Badia, 159 AD2d 577 ), the defendant was only entitled to a hearing on his motion if he established that the totality of the circumstances of the case showed that counsel failed to provide meaningful representation (see, People v Tippins, supra; People v Badia, supra).

2025On the other hand, although an EIS is presumptively required for type I actions (see, Matter of Town of Dickinson v. County of Broome , 183 AD2d 1013, 1014 [3d Dept 1992]), it is not a per se requirement ( see Matter of Save the Pine Bush v. Planning Bd. of Town of Guilderland , 217 AD2d 767 [3d Dept 1995]] lv. denied 87 NY2d 803 [1995]) However, if an agency issues a negative declaration, eliminating the need for an EIS, it can only do so after it has "identified the relevant areas of environmental concern," taken "a 'hard look' at them, and "made a 'reasoned elaboration of the basis for its

2025On the other hand, although an EIS is presumptively required for type I actions (see, Matter of Town of Dickinson v. County of Broome , 183 AD2d 1013, 1014 [3d Dept 1992]), it is not a per se requirement ( see Matter of Save the Pine Bush v. Planning Bd. of Town of Guilderland , 217 AD2d 767 [3d Dept 1995]] lv. denied 87 NY2d 803 [1995]) However, if an agency issues a negative declaration, eliminating the need for an EIS, it can only do so after it has "identified the relevant areas of environmental concern," taken "a 'hard look' at them, and "made a 'reasoned elaboration of the basis for its

2013Indeed, in People v Konstantinides ( 14 NY3d 1, 13 [2009]), we declined to adopt such a per se rule in a case where a defense attorney was accused of criminal misconduct (witness tampering, bribery and suborning perjury) in relation to a witness in his client’s case.

2012In this regard, while we share our dissenting colleague’s concern that a criminal defendant’s right to the effective assistance of counsel never be compromised by the personal interests of the attorney representing him, we decline to adopt the per se rule advocated by the dissent, which would require reversal absent a showing of any effect which the conflict may have had on the representation, as expressly contrary to clear and established precedent (see People v Konstantinides, 14 NY3d at 14 ; People v Abar, 99 NY2d at 411).