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New York Criminal Assault won't stop Civil Assault Lawsuit SDNY Rules


The rapper 2 Chainz hired a body guard that assaulted a camera-toting civilian, a photographer, that resulted in injury and criminal charges. The assault charge(s), a New York misdemeanor, became the subject of negotiation and, ultimately, a “re-pleader” type situation. New York City criminal courts often utilized "re-pleader" charges where other courts might call this an interim plea. The negotiation is one that allows the prosecutor to withdraw the guilty plea to a lesser offense provided the New York Criminal defendant complies with the bargained for agreement. Even in this situation, criminal charges are accompanied by collateral consequences, from immigration to a civil lawsuit - hiring an attorney who is more than just a "criminal" attorney or a "negligence" attorney would serve one well in most instances; although this may not be the situation here, this case is is an example of why hiring an attorney who does more than simply accept plea deals makes a difference.

At issue in this civil assault case brought in the Southern District of New York (SDNY) is whether one can simply assert a fifth amendment right in the middle of a civil trial. In New York, one has a right against self-incrimination. In certain instances, while asserting the fifth amendment right against self-incrimination may serve to protect one in a criminal proceeding, the assertion can be devastating in a civil proceeding. Yes, exercising your fifth amendment right may not protect you and, in fact, may harm your civil case. So, the Defendant charged with civil assault seeks to stay the proceedings. The Southern District of New York cites the standard(s) to do so:

"The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 96 (2d Cir. 2012) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)) (internal quotation marks omitted). Although the Constitution "does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings," this Court may nonetheless "decide in its discretion to stay civil proceedings . . . when the interests of justice seem . . . to require such action." Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986) (internal quotation marks omitted); see also Louis Vuitton, 676 F.3d at 97 ("[A]bsent a showing of undue prejudice upon defendant or interference with his constitutional rights, there is no reason why [a] plaintiff should be delayed in its efforts to diligently proceed to sustain its claim."). The party seeking a stay "bears the burden of establishing its need." Louis Vuitton, 676 F.3d at 97 (quoting Clinton v. Jones, 520 U.S. 681, 708 (1997)).

In determining whether to stay a civil proceeding pending resolution of an ongoing criminal proceeding, courts in this Circuit consider such factors as (1) the extent to which the issues in the criminal case overlap with those presented in the civil case, (2) the status of the criminal case, (3) the private interests of and burden on the defendants, (4) the private interests of the plaintiff's, (5) the interests of the courts, and (6) the public interest. See id. at 99. Consideration of these factors, however, "can do no more than act as a rough guide for the district court as it exercises its discretion," which still "demands a particularized inquiry into the circumstances of, and the competing interests in, the case." Id. (quoting Banks v. Yokemick, 144 F. Supp. 2d 272, 275 (S.D.N.Y. 2001).

The assault Plaintiff wishes to move forward but the Defendant (bodyguard) is concerned that his “Fifth Amendment rights may be burdened…through the loss of his plea agreement.” The SDNY Court notes that “New York courts may vacate plea agreements upon the discovery of new evidence, fraud, clerical error, or with a defendant's consent.” (citing People v. Searcy, 770 N.Y.S.2d 493, 494 (N.Y. App. Div. 4th Dep't 2003).) This speculation, however, is not enough and, besides, such a stay “could lead to faded memories and/or prevent Plaintiff from recovering on his tort claim for several years after the alleged injury. “

The civil case moves forward and the Defendant bodyguard now must choose between remaining silent in the face of these allegations of assault or potentially incriminate himself with the pending repleader still not yet adjudicated...

The case is CAPAK v. Epps, Dist. Court, No. 18-CV-4325 (RA).(S.D.N.Y. 2018). Call The Law Offices of Cory H. Morris, 631-450-2515 (NYS) | (954) 998-2918 (FLA) - representing people facing accident, accountability and addiction matters - because the problems surrounding a criminal charge do not necessarily end in a criminal court anymore...


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