New York State Appellate Division 3rd Judicial Department and its struggle with the best evidence rule

Today I read a schizophrenic case from New York State Supreme Court Appellate Division 3rd Department that correctly applies the best evidence rule - but puts in question prior decisions of the same 3rd Department on the same best evidence rule.

The best evidence rule is the rule of evidence requiring production in court of written document, if certain rights may only be established through written documents, and not through oral description of those documents or of those rights.

The 3rd Department has an interesting and politically tainted history with the best interest rule.

In 2012, New York State Supreme Court Appellate Division 3rd Department refused to vacate the plea of a criminal defendant where the defense counsel never properly appeared in the case by written notarized consent to change counsel, as required by law.

Of course, the defense counsel who screwed the case by obtaining a plea of a legally blind defendant to an A2 felony through stating (twice, on record) that he drove the truck where drugs were found while somebody else did, and received a speeding ticket that was in the record of the case - that legal genius was, "coincidentally"the former Vice-Chair of New York State Commission for Judicial Conduct Stephen Coffey, who sat on that Commission with the 3rd Department Chief Judge Karen Peters and dismissed, together, my complaint against Judge Becker based on misconduct in that same case, without recusal because of personal financial involvement (fee litigation) in that same case.

Whether an attorney is, or is not, attorney of record, is defined in New York only by written documents:

1. notice of appearance,
2. order of assignment of counsel, or, if there was a prior counsel in the case,
3. notarized consent to change counsel, CPLR 321(b).

Coffey had none of that, but, given his cozy position with judges, he obviously did not need to comply with any laws.

And, even though settlements negotiated by attorneys who are not officially attorneys of record, are void in New York, Coffey's plea bargain imposed upon his legally blind client was upheld by Coffey's "buddy court".

4 years later, in 2016, the 3rd Department affirmed the dismissal decision (with sanctions, attorney fees, anti-filing injunction and a threat of criminal prosecution) of a "3R" (#RecusalReentryRetaliation)judge James Tormey.

In that case, Judge Tormey refused to distinguish between two court cases - one in which I was an attorney of record after the judgment was entered, and another - where I was never an attorney of record, and claimed that attorney Jonathan Follender (also a judge in justice court in Town of Denning, Ulster County) was
not expected to know, for purposes of Judiciary Law 487, fraud upon the court, and defamation claim, whether I was or was not an attorney of record in the 2nd case.

In fact, determining that "complicated" issue was a no brainer:

1. I never physically appeared in court in the 2nd case (with a separate index number);
2. was never hired to represent anybody in that case;
3. my supposed clients in that case appeared their pro se;
4. there was no notice of appearance filed by me in that case with the court and
5. I told attorney Follender, orally and in writing, ever so many times, that I was not hired that case and was not representing anybody in that case.

That did not preclude attorney Follender from running his mouth that I am not appearing, did not appear, abandoned my clients etc. - which eventually led to a lawsuit for fraud upon the court and defamation against attorney Follender which was fixed by attorney Follender and the 3R judge Tormey who claimed that:

• attorney Follender had absolute JUDICIAL immunity from suit under Judiciary Law 487 in a case where he acted as a private attorney (a decision that Judge Kevin Dowd immediately refused to apply in my husband's case claiming it is only "dicta"); and
• that it was impossible for attorney Follender to determine whether I was or was not attorney of record, so my lawsuit against him for defamation and fraud upon the court for running his mouth and claiming that I am attorney of record in the case where there was NO BEST EVIDENCE, no written notice of appearance indicating that I was attorney of record in that case.

So, in this case, and especially because Tormey sent the decision over to be used in my disciplinary proceedings, reason, law, as well as the best evidence rule, all disappeared.

But - voila - the best evidence rule now re-appeared in the least expected of all cases, a prisoner discipline case.

On March 16, 2017, in the Matter of Lawrence George Wilson,  the best evidence rule suddenly reappeared, when the same court overturned discipline of a prisoner based on a "mail watch" (procedure where prison officials watched outgoing correspondence of the prisoner)  - because the mail watch could only be established by written permission of the prison's superintendent, and there was no such written permission given to the prisoner or included into the record.

The court rejected transcript of oral testimony of an investigator claiming that there was such permission given, insisting that, if the law requires that mail watch to be established by a written permission, and there is no such thing in the record, discipline based on a procedure not established through that required written document must be annulled.

The best evidence rule, therefore, got resurrected by the 3rd Department - of course, in that case, no criticism of judges, critics of judicial misconduct, attorneys "close to the body" of judges or claims of judicial misconduct or bias were involved.

So, it was safe to apply the law.