Hurrell-Harring v. State

• Decision Date: 06 January 2011
• Citation: 81 A.D.3d 69,914 N.Y.S.2d 367
• Parties: Kimberly HURRELL-HARRING et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v. STATE of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 367

81 A.D.3d 69

Kimberly HURRELL-HARRING et al., on Behalf of Themselves and All Others Similarly Situated, Appellants,

v.STATE of New York et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 6, 2011.

Schulte, Roth & Zabel, L.L.P., New York City (Kristie M. Blase of counsel) and Corey Stoughton, New York Civil Liberties Union Foundation, New York City, for appellants.

Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for State of New York and another, respondents.

Gordon J. Cuffy, County Attorney, Syracuse (Michael P. McCarthy of counsel); John W. Park, County Attorney, Canandaigua (Michael G. Reinhardt of counsel); James P. Coleman, County Attorney, Watkins Glen (Dennis J. Morris of counsel);Christine Malafi, County Attorney, Hauppauge (Leonard G. Kapsalis of counsel); FitzGerald, Morris, Baker & Firth, P.C., Glens Falls (William A. Scott of counsel), for County of Onondaga and others, respondents.

Before: PETERS, J.P., ROSE, MALONE JR. and GARRY, JJ.

PETERS, J.P.

Appeal from an order of the Supreme Court (Devine, J.), entered July 13, 2009 in Albany County, which denied plaintiffs' motion for class action certification.

Plaintiffs, who at the time had criminal charges pending against them in defendants Onondaga, Ontario, Schuyler, Suffolk and Washington Counties (hereinafter collectively referred to as the counties), commenced this putative class action alleging that the current system of public defense is systemically deficient and poses a grave risk that indigent criminal defendants are being or will be denied their constitutional right to counsel. They sought, among other things, a declaration that their constitutional rights and those of the class are being violated and an injunction requiring defendants to provide a system of public defense consistent with those guarantees. On a prior appeal, this Court found, by a plurality, that the complaint alleged only nonjusticiable claims of ineffective assistance of counsel and granted defendant State of New York's motion to dismiss (66 A.D.3d 84, 883 N.Y.S.2d 349 [2009] ). The Court of Appeals subsequently modified this Court's order and reinstated a portion of the complaint, concluding that plaintiffs stated a claim for both actual and "constructive" denial of the right to counsel under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 [1963] and that such systemic claims are justiciable in a collateral civil action seeking prospective relief (15 N.Y.3d 8, 22-23, 904 N.Y.S.2d 296, 930 N.E.2d 217 [2010] ).

In the meantime, plaintiffs moved for class action certification, seeking certification of a class of

"[a]ll indigent persons who have or will have criminal felony, misdemeanor, or lesser charges pending against them in New York state courts in Onondaga, Ontario, Schuyler, Suffolk and Washington counties who are entitled to rely on the government of New York to provide them with meaningful and effective defense counsel."

Supreme Court denied the motion, finding that plaintiffs had failed to demonstrate that they would fairly and adequately protect the interests of the entire class and that a class action was superior to other available methods for resolving the claims. Plaintiffs appeal and we reverse.

In order to obtain class action certification, a party must establish that:

"1. the class is so numerous that joinder of allmembers, whether otherwise required or permitted, is impracticable; 2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members; 3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; 4. the representative parties will fairly and adequately protect the interests of the class; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy" (CPLR 901[a] ).

Significantly, these criteria must be liberally construed and "any error, if there is to be one, should be ... in favor of allowing the class action" ( Pruitt v. Rockefeller Ctr. Props., 167 A.D.2d 14, 21, 574 N.Y.S.2d 672 [1991] [internal quotation marks and citation omitted]; accord.

Lauer v. New York Tel. Co., 231 A.D.2d 126, 130, 659 N.Y.S.2d 359 [1997]; see Liechtung v. Tower Air, 269 A.D.2d 363, 364, 702 N.Y.S.2d 111 [2000]; Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 91, 434 N.Y.S.2d 698 [1980] ). Furthermore, while the determination as to whether a lawsuit qualifies as a class action rests within the sound discretion of the trial court, we are vested with a corresponding power to substitute our own discretion for that of the trial court, even in the absence of an abuse of that discretion ( see City of New York v. Maul, 14 N.Y.3d 499, 509, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010]; Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 52-53, 698 N.Y.S.2d 615, 720 N.E.2d 892 [1999] ).

Following these principles, and guided by the Court of Appeals' articulation of plaintiffs' claim subsequent to Supreme Court's determination, we find that plaintiffs satisfied all of the prerequisites to class action certification. There can be no serious dispute that the proposed class, consisting of potentially tens of thousands of individuals, meets the numerosity requirement ( see CPLR 901[a][1] ). Furthermore, common questions of law and fact predominate over questions affecting only individual class members ( see CPLR 901[a][2] ). Significantly, the Court of Appeals dismissed the complaint to the extent that it was premised on performance based claims of ineffective assistance of counsel, thereby obviating any need to conduct individualized inquiries into the performance of the class members' individual attorneys. With only the claims of "outright" and "constructive denial" of the right to counsel at a critical stage of the criminal proceeding remaining(15 N.Y.3d at 22-23, 904 N.Y.S.2d 296, 930 N.E.2d 217), the "basic, unadorned question presented [in this action] is whether the State has met its obligation to provide counsel" ( id. at 23, 904 N.Y.S.2d 296, 930 N.E.2d 217). That is, the inquiry distills to whether, "in one or more of the five counties at issue[,] the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being unmet because of systemic conditions" ( id. at 25, 904 N.Y.S.2d 296, 930 N.E.2d 217). It is this concrete legal issue, and the constitutional right to counsel sought to be vindicated, that is common to all members of the class and transcends any individual questions. That the class members may have suffered the deprivation of their constitutional right to counsel in varying manners—be it through outright denial of counsel during arraignment or a bail hearing, or nonrepresentation at a critical stage—does not compel a conclusion that individual issues predominate; "it is 'predominance, not identity or unanimity,' that is the linchpin of commonality" ( City of New York v. Maul, 14 N.Y.3d at 514, 903 N.Y.S.2d 304, 929 N.E.2d 366, quoting Friar v. Vanguard Holding Corp., 78 A.D.2d at 98, 434 N.Y.S.2d 698; see Fleming v. Barnwell Nursing Home & Health Facilities, 309 A.D.2d 1132, 1133-1134, 766 N.Y.S.2d 241 [2003] ). Likewise, "the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action" ( City of New York v. Maul, 14 N.Y.3d at 514, 903 N.Y.S.2d 304, 929 N.E.2d 366 [internal quotation marks and citation omitted] ). Additionally, inasmuch as the named plaintiffs' claims derive from the same course of conduct that gives rise to the claims of the other class members and is based upon the same legal theory ( see Super Glue Corp. v. Avis Rent A Car Sys., 132 A.D.2d 604, 607, 517 N.Y.S.2d 764 [1987]; Friar v. Vanguard Holding Corp., 78 A.D.2d at 99, 434 N.Y.S.2d 698), the prerequisite of typicality is also satisfied ( see CPLR 901[a][3] ).

Moreover, plaintiffs have demonstrated that the representative parties would fairly and adequately protect the interests of the entire class ( see CPLR 901[a][4] ). Plaintiffs submitted evidence that class counsel is highly experienced in class action litigation and has sufficient resources available to adequately protect and represent the class ( see City of New York v. Maul, 59 A.D.3d 187, 190, 873 N.Y.S.2d 540 [2009], affd. 14 N.Y.3d 499, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010]; Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 129, 144, 871 N.Y.S.2d 263 [2008] ). Furthermore, affidavits from the named plaintiffs established that they are familiar with the litigation and understand the issues involved, and several of the representative plaintiffs also indicated that they joined in the lawsuit not in an effort to alter the outcomes of their individual cases, but in order to improve the indigent defense system. The fact that the criminal cases ofthe named plaintiffs have terminated does not, in our view, suggest that they will not adequately pursue the action ( cf. United States Parole Commn. v. Geraghty, 445 U.S. 388, 397-400, 100 S.Ct. 1202, 63 L.Ed.2d 479 [1980] ).

Nor do we perceive a potential conflict of interest between plaintiffs and members of the proposed class. In finding otherwise, Supreme Court reasoned that plaintiffs' failure to pursue a damages claim in this action would bar class members, under principles of res judicata, from subsequently bringing individual legal malpractice claims against their criminal attorneys. However, "a class action judgment 'will as a rule bind only as to matters actually litigated and not necessarily those which merely might have been' " ( Matter of Dvelis v. New York State Dept. of Social Servs., 146 A.D.2d 875, 877, 536 N.Y.S.2d 585 [1989], lv. denied 74...