How the New York Legislature has created a jurisdictional prohibition for ALL State County judges to preside over trials in criminal felony proceedings

New York State Judiciary Law Section 14 provides:

"Disqualification of judge by reason of interest or consanguinity Judiciary (JUD) CHAPTER 30, ARTICLE 2

§ 14. Disqualification of judge by reason of interest or consanguinity.

A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.

The degree shall be ascertained by ascending from the judge to the common ancestor, descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor.

But no judge of a court of record shall be disqualified in any action, claim, matter, motion or proceeding in which an insurance company is a party or is interested by reason of his being a policy holder therein.

No judge shall be deemed disqualified from passing upon any litigation before him because of his ownership of shares of stock or other securities of a corporate litigant, provided that the parties, by their attorneys, in writing, or in open court upon the record, waive any claim as to disqualification of the judge."

Let's look at the first paragraph of the law once again and closer:

A judge shall not 

• sit as such in, or 
• take any part in the decision of, 
• an action, 
• claim, 
• matter, 
• motion or 
• proceeding 

That is an absolute, jurisdictional prohibition to even participate in multi-judge panels deciding court cases, much less to preside and make decisions as a sole judge.

So, when does that absolute prohibition apply?

sit as such in, or take any part in the decision of, 

• an action, 
• claim, 
• matter, 
• motion or 
• proceeding 

to which the judge is 

• a party, or 
• in which he has been attorney or counsel, or 
• in which he is interested, or 
• if he is related by consanguinity or affinity to any party to the controversy within the sixth degree."

So, if a judge has been "an attorney or counsel" in a certain proceeding, he may not participate in that proceeding as a trial or motion or appellate judge, that is clear, right?

Now, how can a judge become "an attorney or counsel" in a legal proceedings?

One scenario would be that BEFORE BECOMING A JUDGE, the judge, as an attorney, represented a person in the same proceedings which he is not assigned to as a judge.

In such a case the judge must immediately recuse himself.

Another scenario demonstrates that even an Assembly full of lawyers and having, at taxpayer expense, a huge legal department, can produce crazy legislation that upends validity of all criminal felony proceedings and convictions in the state, putting ALL County judges under the absolute prohibition of Judiciary Law Section 14.

New York State Legislature, in its utmost wisdom, armed with taxpayer money and advice from crowds of lawyers, produced this masterpiece of stupidity:

Criminal Procedure Law of the State of New York, (CPL) § 190.25(6): 

“The legal advisors of the grand jury are the court and the district attorney, 

and the grand jury may not seek or receive legal advice from any other source. 

Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes”.

What can possible be wrong about this setup?

Well, a couple of things.

First, New York State Judiciary Law 90(2)(b) provides that giving legal advice constitutes the practice of law.

Second, New York State Constitution Article VI § 20(b)(4) specifically and unambigously prohibits practice of law by County judges:

“A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate's court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not (4) engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties.”

Given the clear and unambiguous prohibition by the New York State Constitution, the New York State Legislature had no authority to not only 

• ALLOW County judges to practice law in being legal advisors of grand juries when grand juries investigate and draft criminal charges in criminal cases,

but also

• to PROHIBIT grand juries ANY OTHER CHOICE OF LEGAL ADVISOR, BUT the County judge OR the prosecutor, OR BOTH, working as a team.

Third (as to the latter prohibition), NOBODY, a physical or a legal person or a government entity may be deprived of a CHOICE of a legal advisor OF THEIR CHOICE, WHO THEY TRUST.

The New York Legislature has managed to violate this simple rule, too, by PROHIBITING the grand jury to use/trust any other legal advisors but the judge (who, by the State Constitution, may not give legal advice) and the prosecutor.

And fourth, let's consider Judiciary Law 14 together with Criminal Procedure Law 190.25(6).

Under Judiciary Law 14, a judge SHALL NOT (absolute prohibition) participate in court proceedings where he was "an attorney or counsel".

Under Criminal Procedure Law 190.25(6) the judge MUST be an attorney or counsel for the grand jury - and an exclusive one, together with the prosecutor, too - even though the judge is PROHIBITED to be a legal advisor to anybody by the State Constitution.

Let us draw a parallel with a civil case.

Let's consider a document that starts a civil lawsuit in the State of New York - a "complaint".

The complaint is drafted by attorney/legal advisor for the Plaintiff.

Imagine if that attorney who have drafted the Plaintiff's initial pleading giving the court jurisdiction (complaint) then becomes a judge who rules over the case.  Impossible, obviously violates Judiciary Law 14 - and the U.S. Constitution, 14th Amendment Due Process Clause (the right to an impartial judge) on top of that.

Now let's go back to the grand jury proceedings in a felony case.  The grand jury also produces an initial document suing the defendant in the criminal case, upon which the court bases its jurisdiction for the criminal felony proceedings.

Similarly to the civil case, the legal advisor drafts that document.  Who is the legal advisor?  The team of the judge and the prosecutor.  

After the judge creates the indictment AS A LEGAL ADVISOR of the grand jury (which is prohibited by the State Constitution, but mandated by the State Legislature in CPL 190.25(6)), the judge then presides over the felony case in the trial (which is prohibited by the State Legislature in Judiciary Law 14).

I am not even talking about a judge forming a team in giving that unconstitutional legal advise with the prosecution and then pretending that the judge is neutral and impartial presiding over prosecution of the document the judge created in ex parte communications with the prosecutor - which is a violation of both judicial and prosecutorial codes of conduct.

Yet, since there is a point in all grand jury proceedings in the State of New York when the prosecution BLENDS/MERGES with the judge - in giving legal advice to the grand jury while creating the first pleading in the case, the jurisdictional pleading, the accusatory instrument - the judge may not later on disattach himself from the prosecution and pretend that NOW the judge is separate and distinct from the prosecutor and is now somehow neutral - the judge can't unring the bell, he HAS MERGED with the prosecutor in creating the accusatory instrument, it cannot be undone, it VOIDS THE WHOLE CASE, making the whole proceedings, including the conviction, JURISDICTIONALLY DEFECTIVE, and thus null and void.

The U.S. Supreme Court has ruled just 5 years ago that proceedings and their results are void where even ONE out of MANY judges in the presiding panel was also prosecutor in the same case.

In New York, the trial judge BLENDS with the prosecutor in all felony cases as a matter of legislative mandate!  Thank you, New York State Legislature, for the mess!

I am not even talking about the fact that, under the agency law the lawyer/legal advisor of the party is considered "to stand in the shoes of the principal" and "to be the voice of the principal".

The principal (client) in this case is - the GRAND JURY.

So, in ALL felony proceedings in New York state THERE IS NO JUDGE!  The judge has disappeared/ has been eliminated by blending the judge with 

• co-legal advisor/prosecutor  AND 
• the client/ the grand jury.

But, that's not all yet!

A legal advisor owes the DUTY OF LOYALTY to its client - the GRAND JURY in this case.  Owing the duty of loyalty to the client, the grand jury, that has created the accusatory instrument, how can the judge then pretend neutrality in presiding over the same case as a judge?

It is the same as advising a civil plaintiff what to put into a civil lawsuit/complaint - and then preside over it as a judge.

A PROFOUND MESS.

I wonder when this mess will be addressed by a civil rights action in federal court challenging constitutionality of New York CPL 190.25(6) that has disqualified ALL criminal court judges in felony proceedings by making them (in violation of the State Constitution, on the one hand, and of the defendant's 14th Amendment Due Process right to a fair and impartial judge, on the other hand) exclusive (with prosecutors) legal advisors of the grand juries in creating indictments - or by a writ of prohibition from a criminal case to the Appellate Division, since the prohibition of Judiciary Law 14 is of jurisdictional nature.

Of course, courts will then face a very sticky dilemma - 

• to agree that the New York Legislature has messed up big time (which is visible plainly from the texts of statutes and the New York State Constitution cited above) and thus invalidate ALL felony convictions in the State from the time CPL 190.25(6) has been enacted,

Or, as it usually happens, 

• to refuse to look the law in the face and try to tiptoe around the topic with some word-gymnastics that judges and lawyers are so capable of doing - up until the point when it will blow into everybody's faces when there will be mass challenges of that "law".

Anyway, the issue of disqualification of all County judges in all felony proceedings in New York due to a head-on collision of state statutes is out in the open, and ripe for the taking for the challengers.

On the improper use by criminal prosecutors of sealed juvenile adjudications in criminal proceedings in New York

New York State Family Court Act § 381.2, entitled "Use of records in other courts," provides:

"1. Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or his interests in any other court.

"2. Notwithstanding the provisions of subdivision one, another court, in imposing sentence upon an adult after conviction may receive and consider the records and information on file with the family court, unless such records and information have been sealed pursuant to section 375.1."

Here is how a New York appellate court applied this statutory prohibition to use juvenile delinquency adjudications IN ANY OTHER COURT:

" Family Court Act § 381.2 is clear on its face and provides that neither the fact that a person was before the Family Court in a juvenile delinquency proceeding for a hearing, nor any confession, admission, or statement made by such a person to the Family Court, or to any officer thereof in any stage of that proceeding, is admissible in any other court (see Family Ct Act § 381.2 [1]). 

AND

"Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation" (McKinney's Cons Laws of NY, Book 1, Statutes § 76). The above-cited language of the Family Court Act is unambiguous and makes clear "that the Legislature has sought to protect young persons who have violated the criminal statutes of this State from acquiring the stigma that accompanies a criminal conviction".

AND

As noted above, the sole statutory exception to the confidentiality provisions of Family Court Act § 381.2 permits consideration of records and information relating to a juvenile delinquency adjudication by a court in imposing sentence upon an adult (see Family Ct Act § 381.2 [2]). 

However, a SORA proceeding is civil in nature (see People v Mingo, 12 NY3d 563, 572 [2009]), and a risk level determination is not a sentence (see CPL 1.20 [14]). 

Thus, the statutory exception is inapplicable. Consequently, we hold that the Board, which is merely an advisory panel, exceeded its authority by adopting that portion of the Guidelines which includes juvenile delinquency adjudications in its definition of crimes for the purpose of determining a sex offender's criminal history".

So - THE ONLY time when a criminal court may consider juvenile delinquency adjudications is when an adult criminal defendant HAS BEEN ALREADY CONVICTED OF A CRIME and the COURT IS CONSIDERING HOW TO SENTENCE/PUNISH HIM AS A RESULT OF THAT CONVICTION, and even then, when such a sentencing concerns a sex offender, the risk level of the offender may not be determined with the help of such a juvenile adjudication.

The law makes it clear that juvenile adjudications may not, under any circumstances, be used in a CRIMINAL TRIAL against the defendant.

Any attempt by the prosecution to even hint to the public in a public record that the criminal defendant HAD juvenile adjudications before trial and for use in trial is prosecutorial misconduct meant to irreversibly contaminate the jury pool and obtain a wrongful conviction based on sealed inadmissible records.

If any such attempt is made in a criminal proceeding, a motion to disqualify prosecution for misconduct should be immediately made, as well as a motion to recuse a judge if the judge allows introduction of such records.

On the necessity of motions in limine (to exclude) re testimony of experts on the ultimate issue of criminal proceedings - whether the defendant killed the alleged victim

The US Supreme Court has stated a long time ago that for the law to be constitutional, it must be

1. statutory (done by legislature and not by judges or executive/administrative agencies);
2. be clear to an ordinary person (not university educated, no law degree); and
3. contain a clear guide for application of the law for the police, prosecutors and judges.

What happens in court is usually the opposite.  Lawyers and judges bamboozle the public with terms and "rules" that even judges and lawyers squabble over as to WTH they mean.

So, when I say "motion in limine", that is lawyerspeak for a good old request to the court not to allow introduction of certain proof at trial.

Now, I receive a lot of mail from readers of this blog who report that various prosecution-hired experts in CPS ("civil") and in criminal proceedings routinely testify in court on the so-called "ultimate issue" - was the defendant responsible for the injuries of the alleged victim or not.

Sometimes forensic proof (DNA evidence etc.) points clearly at the defendant, and then such testimony by the expert is warranted.

Oftentimes, though, a forensic expert LACKS proof (a person has been raped, but there is no DNA evidence pointing at the defendant as the perpetrator, or the alleged victim obviously died from a certain weapon - knife, gunshot wound etc.), and the expert fills in the gaps by testifying that IN HIS SCIENTIFIC OPINION it was the defendant who raped-stabbed-shot the alleged victim.

It is apparent that expert opinions are allowed in court only when an expert knows more than an ordinary person and can explain to the jury facts that the jury may not understand without an explanation from a person with specialized knowledge in a particular field.

Yet, once the expert testified that in his opinion the victim did have sex on the day of the supposed crime, or that the alleged victim did die from a stab wound or from a gunshot wound, if the expert does not have ADDITIONAL evidence pointing at the defendant as perpetrator of the crime, the expert no longer has specialized knowledge to inform the jury WHO DID IT - and his "opinion" on the matter should not be allowed.

In federal cases, while an opinion on the ultimate issue is not in itself objectionable, an opinion about the mental state of the defendant as to the ultimate issue (whether the defendant possessed the necessary criminal intent in committing the crime charged) is not allowed.

In New York State, the Court of Appeals (the top state court) has ruled that:

"In a sense, opinion testimony of an expert witness necessarily enters upon the jury's province, since the expert — and not the jury — draws conclusions from the facts, which the jury is then asked to adopt. Such testimony, however, is admissible where the conclusions to be drawn from the facts "depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence." (Dougherty v Milliken, 163 N.Y. 527, 533; De Long v County of Erie, 60 N.Y.2d 296.)"

So, expert opinion on any issue of fact, and especially on the ultimate issue of defendant's guilt or innocence IS NOT ADMISSIBLE in court - and thus may and should be eliminated by a defense's motion before the trial  - when an expert has made a prior claim (in any kind of a pretrial hearing) not based on evidence, but based on personal opinion of the expert that has nothing to do with any specialized skill or knowledge, that the defendant is guilty of committing the crime charged.

Defense attorneys often neglect making motions to specifically exclude testimony of prosecution's expert on the ultimate issue of criminal proceedings - whether the defendant committed the crime charged if the expert has no evidence of it other than the manner of death of the victim.

It must become a good defense practice to make such motions in limine/to exclude improper expert opinions.

The tricks of New York prosecutors to financially drain the family of criminal defendants on unnecessary pre-trial appearances and reviews to leave them without funds for lawyer to do the trial and get an easy plea

I have been working for a criminal defense attorney as a paralegal for a number of years, and then myself was a criminal defense attorney in New York for several years, so I know as a practical matter the tricks of prosecutors and judges who are in bed with prosecutors aimed at coercing plea bargain by draining family resources on private criminal defense attorney before trial.

Trick # 2.  Pre-trial "conferences"

There is no such beast at all in the Criminal Procedure Law governing criminal proceedings in the State of New York.

Yet, in all criminal cases the attorney I worked for and then in my own cases at felony level judges (who usually are former prosecutor from the same office as the current prosecutor of the case) mandate a "pre-trial conference" - even though you tell the judge and the prosecutor loud and clear that your client wants a trial and does not want any plea discussions.

I have described previously how pre-trial conferences are conducted and for what purpose, in civil and in criminal cases.

Appearance to each of such conference is mandatory, so the attorney (before the pandemic, at least), had to come to court, so it is travel to and from court, waiting time in court and time at the useless conference - all necessarily billed to the client.  The attorney has no power to cancel the conference other than arguing against it in writing to the judge - most likely, to no avail, the judge will just ignore it and order the conference anyway.

Several such conferences - and the family budget is several thousand dollars lighter for the criminal defense attorney, so by the time of the trial the family may end up with no funds paying the attorney for the labor-intensive trial (several days of morning-to-night work in court plus preparation prior to trial).

The judge knows what he is doing.

The prosecutor knows what the judge is doing when the prosecutor asks the judge (his former colleague) for such a conference.

It is a tool to drain the family's resources for private counsel.

When the money is so drained, and the defendant faces the option of either reverting back to the mostly useless public defender or going to trial without an attorney, the defendant is more likely to enter a guilty plea, even if he/she is not guilty.

Trick #2 (used on my client by the current Chief Judge of the State of New York Janet DiFiore when she was a Westchester County DA) - "the prosecution is not yet ready"

There is such a thing as "professional courtesy" - which is often pushed upon defense attorneys to waive on their client's behalf their client's statutory or constitutional rights (to a felony hearing, to speedy trial etc.).  

Such "professional courtesy" rules do not, apparently, apply to prosecution who habitually hides evidence that is mandated for disclosure to the defense (exculpatory or mitigating guilt of the defendant).

I had an A felony case of a client, prosecuted by then-DA Janet DiFiore of Westchester County where DiFiore had me every single week dragging my feet from Delhi, NY to Westchester County by 9 00 AM (a 4-hour drive) for a certain hearing on the evidence I requested, so I would arrive there (an 8 hour turnaround trip billed to the client at an hourly rate), sit there for 3 hours (I had to come by 9 am, but the judge deliberately would call my case, without fail, only by noon, so 3 hours more of useless waiting in court billed to my client each time) - and each time when the case was called the prosecution would tell the judge that "they are not yet ready to produce the evidence" and the judge would say - ok, adjourned until next week, no reprimand to the prosecution that they could not tell the judge and the defense counsel, out of professional courtesy, that they are not ready, so that the defense counsel could decided what to do at this time - save the client's money for a yet another appearance.

Ended up with me making a motion to recuse the Harrison Town Court judge (year 2014) for being so deeply in DiFiore's pocket that he was not able to adjourn WIHOUT DRAGGING ME THERE, since the prosecutor knew ahead of time that "they are not yet ready", but never notified me of that, necessitating the trip.

The judge, in open court, threatened to put me in jail for contempt of court for making that motion to recuse.

Nevertheless, DiFiore's office finally acknowledged that they have NO EVIDENCE to have charged my client with an A felony (the judge often yelled at me in open court trying to impress upon me, a woman with a foreign accent which for many means that I must be stupid and not understand the English language, much less the New York state law - "DO YOU UNDERSTNAD, MRS NERONI, WHAT AN A FELONY IS?)

I understood it pretty well - that is why I demanded a felony hearing and had my client released without bail when the prosecution refused to conduct it, that is why the prosecution eventually reduced the charges to a misdemeanor - and I have made demands to produce supporting evidence which the prosecution did not have, and that's why the case was finally knocked down further to a violation.

The prosecution also understood that I understood pretty well what a felony charge is - that is why my client was pressured in jail (with hints that otherwise he will be raped) into waiving a grand jury indictment and proceed by "Superior Court Information" (his assigned counsel participated in the pressure), and the jail blocked the client's father from delivering to the client the form for consent to change counsel I have drafted, to prevent me from stepping into the case faster.

This is the reality of criminal proceedings in New York.

Trick # 3 - prosecution provides to defense light years of pages of unnecessary discovery for review 

A defense attorney must, in due diligence, review all discovery materials provided by the prosecution to prepare effective defense of his client.

Well, the prosecution often uses it by (while withholding exculpatory evidence) showering the defense with tons of useless documents, thousands upon thousands of pages, review of which takes time and effort of the defense attorney - and is necessarily billed to the defendant's family.

The result often is the same - the family is drained of funds before trial, and then the private counsel either says - oops, I need more funds for trial or can't proceed, or "advises" that it is "better" for the defendant to agree to a guilty plea - and the private counsel then keeps the money without doing the work at trial.

These tricks exist, are well-known by defense attorneys, but rarely would a defense attorney ask to recuse a judge or disqualify a prosecutor for engaging in such misconduct.

Just know that such tricks exist. 

Knowledge is power.

Nothing that a motion to recuse the judge and disqualify the prosecutor for misconduct would not cure.

On the underused way to get money for experts from the state for indigent criminal defendants in New York

I hear it from my readers, again and again, how retained private attorneys screw them out of the money for experts and investigators which defendants could have obtained FOR FREE as indigents/poor persons.

It is invariably done out of greed combined with laziness - often when a private attorney charges a huge "lump sum" for "everything" including the criminal trial, pressures the indigent defendant's family to pay for hiring the supposedly necessary forensic experts - and then does not hire the experts and pressures the defendant into a plea bargain, keeping the money for the experts and for the trial.

Yet, the law very clearly says in New York that a criminal defendant does not stop being an indigent just because a 3rd party (the adult defendant's extended family) hires a private counsel for him.

And, there is a statute, County Law 722-c allowing an indigent criminal defendant to hire experts and investigators for the trial at taxpayer's expense;

"722-c. Services other than counsel. Upon a finding in an ex parte

 proceeding that investigative, expert or other  services  are  necessary
  and  that the defendant or other person described in section two hundred
  forty-nine or section two hundred sixty-two of  the  family  court  act,
  article six-C of the correction law or section four hundred seven of the
  surrogate's  court  procedure act, is financially unable to obtain them,
  the court shall authorize counsel, whether or not assigned in accordance
  with a plan, to obtain the services on behalf of the defendant  or  such
  other  person.  The  court  upon  a  finding  that timely procurement of
  necessary services could not await prior authorization may authorize the
  services  nunc  pro  tunc.  The   court   shall   determine   reasonable
  compensation  for  the  services  and  direct  payment to the person who
  rendered them or to  the  person  entitled  to  reimbursement.  Only  in
  extraordinary  circumstances  may  the court provide for compensation in
  excess of one  thousand  dollars  per  investigative,  expert  or  other
  service provider.
Each  claim  for  compensation shall be supported by a sworn statement
  specifying the time expended, services rendered, expenses  incurred  and
  reimbursement  or  compensation applied for or received in the same case
  from any other source.

Moreover, a motion for expert fees under County Law 722-c is allowed to be made, argued and granted on an EX PARTE (without notice to prosecutors) basis.  When such a motion is made, the judge has absolutely no right to disclose to the prosecution that an expert is being sought at taxpayers' expense by the defense, and if he does, it is judicial misconduct entitling the defendant to make a motion to remove the judge from the case (recuse).

Even though the law restricts the amount to $1000 in the absence of "extraordinary circumstances", the statute does not restrict the defense counsel from claiming that the prosecution's use of an expert whose fee far exceeds $1000 does constitute extraordinary circumstances entitling the criminal defendant to an expert of the same quality (and with the same level of fees), as a matter of equal protection of laws guaranteed by the 14th Amendment of the U.S. Constitution.

Of course, such a motion may irritate the judge and the prosecution and certainly will not allow the defense attorney to sock away fees paid by the anxious family for experts, but retained for attorney's private use.

But - such a tool does exist in New York state law.

On "letter applications" by prosecutors in criminal cases instead of motions on notice according to the CPLR (New York)

 I have noticed from many submissions of different readers from across the State of New York that often prosecutors "enjoy" a cozy relationship with the court, to the point of not even taking an effort to comply with proper procedure in asking the court for major relief - such as in motions.

A prosecutor simply files a "letter request" to the court - without the required formalities of a notice of motion, supporting affirmation under oath, supporting evidence and memorandum of law, supporting affidavit of service upon parties.

Well, I can bet all that is dear to me on the fact that if a pro se (not represented by an attorney) party files a "letter request" with the court, despite the rule requiring courts to give a "liberal review" to filings of pro se parties, such a "letter request" will be rejected by the court as not a proper motion.

Yet, from a criminal prosecution "letter requests" without following formalities of motions appear to be hunky-dory for some judges.

If a defense attorney does not object against "letter applications" - you know what the defense attorney is doing to his client?  

Depriving him of his right to appeal "as of right" any ruling of the court on such a "letter application" immediately - specifically because the "letter application" was not a formal motion made "on notice":

                "Another consideration for careful 
                practitioners is the availability of appellate 
                review. A request for relief made in the absence 
                of a notice of cross motion is not a "motion ... 
                made upon notice" (CPLR 5701 [a] [2]), 
                so an order granting or denying the request 
                is not appealable as of right, and permission 
                to appeal is necessary (see CPLR 5701 [c]; 
                Blam v Netcher, 17 AD3d 495, 496 [2005]). 
                By contrast, generally, a party may appeal as 
                of right to challenge the disposition of a motion 
                or cross motion made on notice (see 
                CPLR 5701 [a]).

While the client is allowed to appeal immediately and as of right any ruling of the court on a motion made on notice.

So, if your attorney wants to exercise "professional courtesy" to a prosecutor by allowing him/her to make "letter applications" for major breaks at trial (prosecutors do not file motions other than for major breaks at trial), that courtesy (for your money) is, in fact, screwing you as the client - royally - because you will not be even able to appeal the ruling on that "letter application", no matter how badly it affected you.

And this, ladies and gentlemen, I believe, is a major illustration of ineffective representation of counsel.

On "extraordinary" writs of prohibition in criminal cases

Recently I got news that one of my former clients did an extraorinary thing - won a very rare "extraordinary" "writ of prohibition" against a New York State Family Court judge.

A VERY rare thing - and a very procedurally complex thing - done ENTIRELY pro se.  VERY PROUD of that person.

Proves that a person unrepresented by an attorney can effectively defend his/her own rights in court - even in very complex cases, and especially in complex cases which attorneys are afraid to touch.

That said, there is a special place in hell for ATTORNEYS who, knowing that a judge is proceeding - especially in a criminal case - without jurisdiction - and when an attorney has been handsomely paid for effective representation of their client, to not even TRY to bring this "extraordinary" writ of prohibition in the Appellate Court to try to STOP the criminal trial since it proceeds without jurisdiction.

For example, recently a reader has sent me some materials (motion papers) in a certain New York criminal case where the defense attorney quite coherently pleads in motion papers that the court had no jurisdiction in that criminal case because of a jurisdictionally deficient indictment.

And yet, when a certain cowardly judge denied that motion, instead of trying to proceed to the Appellate Division with a writ of prohibition before the pending trial, that attorney is trying to pressure the client to accept a plea bargain (with a lot of years in prison) on that same jurisdictionally defective indictment.  Figure.

I guess, the attorney wants to keep the handsome amount paid without the tedious necessity to prepare and try the case - and to hell with what happens to the client.

And, I also guess, sometimes it is better to represent yourself than to have such attorneys.