Wednesday, March 31, 2010


NYLJ 6/20/07


4. Ah, ‘tis enough to drive a murderin’, thievin’ boss of a drug cartel t’drink!

When government bribes fail, you’d think you could at least count in a solid business relationship to maintain the alliance against the bureaucrats.

But no, you say help the makers and distributors or Smirnoff and Tanq and—lord help us—Guinness, not to mention…well, hell yes! Let’s mention just Pernod-Richard and let you fill in the blanks, but that isn’t going to save you from a RICO investigation and prosecution when you’re found to be playing “scratch-my-back” with Columbian traffickers in narcotics. There may be better ways to outsell the government brands, but none quite as good. Money-laundering, that’s what they called it, and price-fixing via cheaper, and illegal, methods of distribution.

And even if I must face the revenue rule, common law doctrine which prevents the courts of one sovereign nation from enforcing the tax claims of another, I can readily dismiss the tax issue and allow the bulk of the suit to proceed. It is all well and good to say: My country right or wrong, and my taxes as well. But when a sovereign state brings a suit as a commercial actor, it should have the same rights or wrongs as any other capitalist. And we don’t want to set a precedent, now do we?

Of course, to win the suit it would have to show that their lost sales were directly attributable to the money-laundering. And those closing arguments would have to be heard elsewhere.

But, for now, last call has been given at these taps.

Monday, March 29, 2010


NYLJ 6/20/07


1. If you arrived at training camp with a busted finger, unable to fulfill your umpteekazillion-dollar contract, your employers might ask a question like: how did that happen? This is not out of politeness, understand. Then, your reply of “slipped on a banana peel” or “hauling a rope on my yacht” or I don’t remember” would give one pause. For real. And not out of sincere care for health and well-being. Sorry. Nope, it is the inevitable insurance carrier’s concern: does the injury come in under the heading of unfortunate circumstance or, possibly, sound in callous disregard of liability for specific performance?

Oh yes, and when dealing with such weighty matters, that would be the end of it, wouldn’t you think?

No, the other big ticket controversy sounds in an accusation of defamation, without malice aforethought, maybe. The libel wouldn’t be part of that issue though. The NY Post reporter could allege that the superstar Knick had put his fist through a bulkhead on his boat, based upon 2 eyewitness accounts, and the action against said scribbler would still be on difficult grounds, even if there weren’t previous pieces in print to establish a pattern of pugnaciousness. As certain proof of same, even a pro-basketball player—with obvious anger-management issues—is just as likely to go down without a fight.

“Assuming, arguendo, that defendant’s statements regarding how plaintiff injured his hand, and his alleged attempt to cover up the incident are false, the Post and reporter are entitled to summary judgment in dismissal. The information was not reported as incontrovertible fact, but rather cautioned the reader of the two allegations, mentioning as well the denial by the plaintiff, that the reporter demonstrated, to the satisfaction of editors, and this court, that he had good reason to trust the personal testimony of his informants based upon their demonstration of knowledge of the yacht’s interior, providing additional indicia of authenticity.

“You then only have to add in the calls to plaintiff, agent, publicist, personnel on the team and three doctors to conclude that the due diligence of a reporter was not overlooked, even if you were to call it ‘sensationalist’.”

And that’s a slam dunk! Swoosh…

Wednesday, March 24, 2010


NYLJ 6/20/07


2. Makes you wonder about some interpretations of the term ‘fiduciary duties’ owed by counsel to client. By now it is understood that delaying tactics are part and parcel of the patient ploys in attorney/client relations, taking longer to get to trial being merely a card in the hand of the players at the poker table. In that, the counterclaims (“I raise”) and motions to preclude or set aside or dispute of jurisdiction or of proper service (“I see you and raise”) before they enter the courthouse (“I call”) are all what can turn the felt forum into a bargaining table.

Still, destroying evidence, pretending you didn’t know it existed or stating that the files of the chief underwriter in an insurance case were not considered relevant—that’s just opening the door for malfeasance. And for what? The bet might payoff? Sure, that’s what you ante up for in the first place. It’s not like the insurer can’t afford to make good on their policy, though, is it?

So then, it comes down to the old formula: which came first, the chicken or the egg? The insurance company was clearly laying the eggs by deleting the electronic files, as well as scrambling them by claiming no knowledge of them, when the e-mail trail is as easy to follow as paper. So, a “culpable state of mind” can exist, even it is a Swiss-based conglo-giant. And the other? “Counsel’s failure to recognize the importance of this document and produce it in a timely fashion, especially when alerted to it by opposing counsel, also constitutes a violation of discovery obligations.”

What defense then is “inadvertence”? “Not apt,” said the judge. “And a finding of negligence or worse would be a more appropriate characterization.”

Which seems to call their bluff, alright!

Saturday, March 20, 2010

A slight digression…a field trip

January 8, 2009
Appellate Division, First Judicial Department

If you’ve never been in the courthouse off Madison Square Park, do yourself a favor. The lobby alone is worth a look; the WPA murals are still as brilliant as the day they were laid. If you are there on business, however, you can get past the guards and into the cloakroom of wooden stalls and pegs for your top hat above dyads or such carved into the mahogany, rampant (as they used to say). But when you get into the august chamber itself, you’d wish they let you bring a camera. The associate I was with said this was where the ceremony was held to admit her into the Bar and thought the joint was really classy—and she is one sharp cookie, well-known to be given to dry understatement. It is a truly beautiful thing to conduct the People’s business under a ceiling of stunning Tiffany glass in elaborate pastel and marble scrolleries of vines and laurels around the block names of previous chief justices, each surmounted by an urn between matching torches, alternating with the word “EXCELSIOR” arched over a sunrise-&-windmill motif—no doubt in tribute to our Dutch forebears. And many more paintings of New York history and heritage in the surround, painted by Edwin Howland Blashfield. As well, if you’ve ever doubted the veracity of the phrase “high court”, this place will convince you. These five judges probably have more altitude than the Nazgul in Washington.

There were 20 cases scheduled for the afternoon session, starting at 2pm. This may sound like an ambitious agenda but it really isn’t. By the time a case has reached here, it has been honed to a fine edge, one that either shreds the whole Record-On-Appeal or is blunted by its rock-solid stolidity. All these Justices want to know is: does it meet the test requiring an overturn, or can they uphold? In each case, there is one point of contention; mostly it has to do with a prejudice of a jury member or a ruling which seemed unjust or (rarely) new evidence. Most are decided in chambers, by review, and never see the light of day. Then again, you could be going along with your everyday legal life, sending out letters and e-mails, even perhaps an S&C or BP, and amid the faxes and phone calls you get one that says: You have been scheduled for oral argument…

The procedure is simple: take a seat and wait until you’re called. Don’t expect preferential treatment, even of being taken in order. The justices are in charge and you’re there at their bidding. The only thing you’re guaranteed is that if you have a “10” or “15” after your cases name, when the green light goes on before your lectern you MAY get ten or fifteen minutes before them. Which can easily be 5 minutes with 2 questions and it’s “THANK YOU FOR PLAYING JEOPARDY! Please exit to the rear…” So relax and enjoy the show.

What follows is a smattering of impressions culled from a fascinated-but-disinterested observer that sunny Thursday a year ago.

People v. Gregory Wright – “missing witness”? “immediately after” “How do you translate that into…?” “No evidence seen just heard?” The Appellant’s “standard is People v. Gonzales...its general principle is that within 15 feet of a crime scene MIGHT be a material witness”? “You’re making it sound like a glimmer, a one-shot identification…” Respondent (State) is asked if he has anything to add: Nope, everything you’ve asked is ok by me! The Appellant gets to restate the case and is asked: “You took this pro bono, on behalf of your firm?...Thank you.”

If memory serves, the entire case was about a criminal act perpetrated in a bar, an assault with a pool cue or such, wherein the bouncer or bar employee was badly injured. The defense was self-defense, but there was no witness, per se. What was in question was the non-admission—by the court at the original trial--of the testimony of a friend of the defendant. Said witness was in an adjoining room and did not see the assault but heard the commotion, beginning with some threats being exchanged, and more, or so it is alleged.

184 West 10th Street Corp. v. Marvits – Appellant on the No-Pet Clause of the lease “I’m asking you what it said…assuming that a child kept in a goldfish bowl…” “…have a right to enforce on a substantial obligation…” “I think it would be insane to bring a case…” “…& I agree it would be insane for a landlord to…” “let’s assume the cats are cats…” “Judicial waver from the Respondent” “There is nothing in the statue that says a landlord has to enforce…” “Adverse possession…” “Open and Notorious…” “Under Robinson we don’t actually have to see the cats…´”These were shy cats, rather than outgoing cats…” “Litterbox…” “Let’s test that argument: Suppose they meow outside the doors?” [this causes laughter throughout the room]
Q&A between the parties:
Respondent: Can you make anything a substantial breach of obligation by putting it in the lease?
Appellant: …is represented in this case before three courts previously [think this entire line of questioning focuses on the “substantial breach” issue]
Respondent: REDIRECT—re-enforce the clause in the lease that says “any violation is cause for void of lease…. It means you are operating under an overly-broad language, asking we modify the terns by redefinition.”
Appellant: I’m not aware of any case where this is… [and goes back to administrative code and whether or not a contractor, let in for repairs, can act as an agent of the landlord in this issue]

The case hinged upon the eviction of a person for having cats. Over the years, it was no secret to the other tenants—some light meowing, some crumbs of stray clay litter on a welcome mat, but no scent or odor. Hence the “Open and Notorious” statement—which sound ludicrous from here. Yes, it means everybody knows there are cats there; but “Notorious”? Yes, a Term of Art, but…oh come on! This is one where the sad and the comic walk hand-in-hand.

People v. Michael Rose – Appellant’s 1st point, “he bought a small amount [crack] and used one-third himself, before turning the rest over to the actual purchaser who would distribute it…” [the next bit had something about “benefit and self-interest”, implying the benefit “up to the point at which he buys three bags…”] “In Harris, didn’t he use friend’s money to make a buy, before using his own?” “Everything in Harris, which is your best support, goes against you here.” “”I have nothing else to offer.” Respondent asks, So you are a 2nd year student? Appellant’s last ditch question: “Is it possible that the Appellant was only doing a favor for somebody else?”

This is pretty transparent. Appellant bought crack in a sufficient quantity to qualify for the maximum penalty for sale of narcotics. His claim is that it wasn’t his money, but a friend’s, and he only bought the drugs in order to satisfy his own habit, a third of which was going to be his to use. The best part is that the 2nd-year law student got to carry the ball this far and the court was impressed with his defense.

Sheffield v. B. Chancel – [International case] Appellant claims Lack of Jurisdiction as this is a corporate, US subsidiary of a Belgian or French company [unclear] and bears no relationship to anything in New York State. “…the foreign parent company sending products here to be sold?” “In NY or USA?” “Breach took place over there, French law to apply…” “Is there any substantial difference between arguments before Justice Lowe and Justice Baer?” “Centered around a stock purchase agreement…” “I see a tremendous distinction without a difference…” Respondent argues “It’s a red herring…” “The subsidiary counterclaim…” “If the case is dismissed here, does the counterclaim still stay here?” “It points to one phone conversation with the bad guy [with respect to compensation for the US subsidiary] while he was in Florida…and identifies himself as a Paris resident…” “Formal convenience…” And comes down to a mare’s nest of filings over and over and subsidiary claims were never pursued in France.

When viewed close-up you can see that this is the pivotal point as to whether the US Courts have the right to try this company in America. At stake is probably more money than most human beings will ever see. The fees on this one alone have put both firms in the black for this year, of that you can be sure.

Morsechi v. Dipasquale – Appellant offers Affirmative Defense Doctrine of Laches [with respect to 1988, when stock was transferred, or supposed to be transferred, to client] “A claim of prejudice?” “The Ex-partie motion moved to dismiss on delay.” “You cite various gifts, personal relationship—nothing to do with the chicken business.” “Some claim 18 years later—same in 2001 and 2004?” “The issue is not whether promises were made or not made.” “What is the prejudice?” “After the original action was dismissed in 1988, there were gifts…” “Ultimately, you have to show those gifts were on reliance…” Respondent: “The key issue is whether or not there was prejudice…” “The Ex-partie moving to dismiss under the Doctrine of Laches, not once in that Affidavit was there one defense of prejudice!” “Two individuals entered into a personal relationship in 1976, before the entity was established…” Matrimonial, Engagement Ring, Cars, etc. 1988 was about the establishment of an interest [probably of mutual assets] and that she was the owner of this company…”

At its core, this is about a husband and wife (or a couple that played around with the idea of marriage, more or less) who went into the chicken business in the late 70’s/early 80’s and divorced, or parted ways, somewhat amicably, around 1988. When they split, the idea was not to split up the company…as much as…sort of, keep it together but… It gets pretty greasy here, and with less traction due to the fact He kept giving She gifts and promises but maybe never actually signed over any stock to Her, but She accepts these tokens of affection without realizing they would later be referred to as partial payment, or something. So where do you draw the line at this? In time and Laches? Or love on the installment plan?

People v. Morales – The Appellant alleges there were 2 errors by the court. The Respondent says the judges are very consistent (very affirmative) “the presumption is severely rebuttable…” “…3 unidentified gunshots at officers…” “…55 bags” The Lady DA is pleading the sentence is just for the compound felony of drugs, weapons and attempted murder. The Appellant says this “addresses the point of Gonzales, with respect to a man who was willing to kill to protect his drug trade…”

This was a drug bust that resulted in a conviction in 1978 and the Appellant has already been serving for 30 years by this point. You get the impression that this is a real “jail-house lawyer” who has nothing but time on his hands and figures he might as well give it a shot. The appeal is to determine whether the penalty with respect to the drug sentence part of it, should be reduced.

Speranza v. Reprolab – This is the marquee attraction here. Looked at strictly on the ruling, it should be a slam-dunk. Son goes to sperm bank and deposits, signs and checks off box for disposal on death. Dies a few years later of massive cerebral hemorrhage. Mother goes through papers, finds contract, contacts sperm bank, is told they are going to dispose of specimens and then… Mother begs not to, says last hope for children. She is told: 1) he said toss them and that’s in the contract; and 2) even if he said otherwise, NYS Health Dept. Code says they can not be used without testing for disease PRIOR to freezing. Mother promises to pay storage fees, says she’ll get attorney to change the laws…

It didn’t work out that way. Hence, the arrival in this chamber, and, as well, they reason it was called out of sequence (originally the last on the day’s schedule) is because, in all probability…THEY JUST COULDN’T WAIT.

The judges are human, you see, and this issue is one that is going to be used as precedent well into the future. We are already in a world where the Rights of the Un-Born are frequently considered over and above those of the Born. The next phase may just be the Rights of the Unconceived. [Don’t laugh… Ok—laugh if you want. But not too loud or too long.] What gets said in this Appeal may not EXACTLY have to do with the Law, which is pretty cut and dried, but even a Minority Opinion may get cited down the road for nuances which no one can predict.

For the Respondent, this is icing on the cake. There’s no question of any liability or even adverse possession, no position they can’t accommodate. All the Justice Questions are therefore, softballs, at best, if not philosophically ruminative.
JQ: So the reason behind the delay of disposal?
RA: Who’s harmed? As long as my client’s license is in order…
JQ: So your position is?
RA: We’ll do whatever the court wants.
JQ: Even if this goes outside of the State of New York?
RA: I have no problem with that either. And the Attorney General of the State was asked to take a position on this and refused, so there’s no restriction there either.
JQ: The Family Court judge in me, as well as the Surrogate Court judge in me…is troubled by this. We’re getting into territory of who has the rights to bring another child into the world from Mr. Sepranza’s sperm. And we are not unmindful of the Mother’s sorrow and hopes.
JQ: The problem is that it would not be going to a regular sexual partner, as well…

The Appellants have a TRO on the case, which is the first question as to status; the vials of vile remain inviolate. Their motion is then that the sperm bank’s taking of storage fees—against the dictates of the State Health Code—constitutes a Reformation of the Contract between the Estate and the bank, which gives them certain rights over the specimens. It is a good gambit; contract law is the hardest on the books—if you get a point across there, you’ve got a real foothold. The Justice Questions come quick and fast, and sharp. The Appellant Answers each on the pivot, ready to swivel on any new tack that offers some air.
JQ: You say the lab sat on its rights when it didn’t dispose?
AA: It appears as if they were prepared to accept a new contract.
JQ: What’s the basis of reformation? You have a contract?
AA: Their acceptance of the fees for continued storage.
JQ: Wouldn’t the two regulations be dispositive?
AA: That’s what we’re here to test as well.
JQ: What’s the purpose of the samples: storage or donor?
AA: Of course, we’ll never know, but the action itself has a meaning beyond the scope of making a deposit and paying fees.
JQ: The second problem is the Department of Health.
AA: It may be possible to test the samples in the future, something might be developed.
JQ: As for reformation?
AA: We see the Estate as a new entity within the contract to take possession.
JQ: But in order to get to reformation, don’t you have to have some execution of the original?

Ok. NO answers here and no conclusions. This is merely the true art of the Law: a bit of debate in open court. Should be simple--but it isn't. The world of talking points, and pre-packaged scripts, the ability to respond to the immediacy of an issue, and with substance, not persiflage, is a fine thing to see.

Sunday, March 14, 2010


NYLJ 6-04-07


2. The wreckage of the Twin Towers was still burning when the State Legislature began tacking the word “anti-terrorism” onto their latest anti-crime bills. And those provisions governing speech, conduct, and other areas of behavioral suspicion have gotten a bit of use by prosecutors—just not against anyone really threatening to bring down the government. Just ask the head of the Public Defenders.

“Those charges make these cases that are essentially meaningless into something far more important. We’re seeing a pattern of serious allegations resulting in de minimus outcomes.”

Take the guy who threatened two social services workers upstate. The Appellate for 3rd Dept unanimously upheld his conviction of making “terroristic threats” and the 15-year-to-life sentence he received. A persistent felon? Sure—but an Al Qeda operative? How many of them lose their temper over an SSI disqualification? And his son too?

The big nut here is Penal Law Section 490.20. it makes a Class D felony punishable by 2 to 7 years to make threats “with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” Any more vague and you could add in “loitering with intent to create a public nuisance”. Might as well get Cool Hand Luke and turn cutting the heads off parking meters into a capital offense.

The 3rd says otherwise: “The statutory language sufficiently apprises persons of ordinary intelligence of the type of conduct that is forbidden and provided law enforcement officials with clear standards for enforcement.” Which is kind of like saying: The Rules were posted on the Barn last night. If you sheep didn’t read them, that’s your problem. If the paraphrase of the Pigs from George Orwell’s “Animal Farm” offends you (with the tacit association of the 1960s radical label for police), don’t let it. There is a complete disconnect from the people who pen these pieces of legislation and those who look at them as a means of enforcing the peace. ADAs and Grand Juries only see the presentation of the letter of the Law, and thereafter what it implies. For prosecutors, this is a new screwdriver to put into the toolkit; something which can be used to leverage a reluctant witness as much as twist the twistos into the planks. Yet there is nothing that says you can’t use it to pry open cases, wedge defendant’s away from standard please (where precedent can stop a lot of arguments before they get started) and thump a couple of small brads to anchor an offense. They don’t have to be threatening to overthrow our form of government.

As it is, this is being applied in every aspect where either intimidation or scare tactics are in use—from street-level gang violence to leaving messages on a phone with promises of a “Virginia Tech”-style massacre. It would seem, then, that once this sort of label gets placed upon previously unclassifiable, tragic behaviors, it take on a life of its own. As well as a new identity.

The native American who had done two pervious bids—’82-’88 Grand Larceny, and '91-’95 for sexual abuse—is by no means an innocent; canned for even corking off to the cops (and SS Admins). But even with his admission of a terminal illness, which gave him “nothing to lose”, and membership in the Akwesasne Warrior Society, giving him easy access to “a gun…at any time,” his conviction on this seems disproportionate, to say the least. For the exact same incident, he was convicted, on the Onodaga County level, for 2nd-degree Aggravated Harrassment: a six-month sentence. Under 490.20, 15-to-life appears almost absurd. And to make matters worse, his son mouthed similar threats and ended up getting charged and convicted, with his father’s prosecutor as a witness, on the same section number.

In the present state of government, not only can’t you not fight city hall, but it is almost one step from treason to do so. When threat and dissent become known under the same heading, you’d better be damned sure of what side of the line you stand, at all times.

Saturday, March 13, 2010


NYLJ 6-04-07



This one is a mid-brainer, when you look past the motive of self-serving interests. The General Counsels of 37 corporations (GE, Ford, Pepsi, Intel, Dow, Pfizer, Merck and Colgate-Palmolive among them) made the petition to the Guv to increase the bucks to the bench-warmers. The way it pans out, they are more likely to be fronting for their orgs before the robes and it wouldn’t hurt to let them know which side of the baked goods has the primo oleo.

Which leads us to the lead story...

1. Every time a salaried schlub logs into ACRIS to prep a client’s RPTT, fiduciary duty will always evoke an impulse towards deciding ‘Which box do I check for an exemption?’ at the back of the mind. But when you’re the head honcho of that self-same Dept. of Finance database, you can have loftier ideals—such as ‘If I enter this…so, no one will ever have to ask for the Mansion Tax on this one’ or ‘We’ll just back-date this assignment of mortgage 2 years and that’s another $15,000 saved right there…’ and you can be as altruistic as you like on the Public Trust. The problem is that, unless you are making such patently illegal transactions possible out of a sense of anarchistic rebellion, to smash the system by boring from within—as we used to say in our olde commie-pinko, radiclib leftie days—then these actual entities who benefit from such tricks probably shouldn’t be on your private client list.

However, the queer bit is that, even though it is against the law to have such clients (conflict of interest and all that), it is just as much against the law for the prosecution by the State’s AG to subpoena that list.

Yeah. Say whaaa?

In any civil suit, the language in the Discovery Demand would sound exactly the same: “All documents, including but not limited to, lists, invoices, billing records, cash receipt journals, bank deposit records and time records reflecting, identifying or referencing by name, all persons on whose behalf you provided legal service for the period,” and here we’ll insert “1/01/03 through 6/20/05”.

That the defendants moved to quash as “overbroad” would be laughed out of 111 Centre Street—but not at 60. In April 2006, the Supreme Court in Manhattan denied the motion, finding each item sought as relevant to the department’s investigation, as would any “reasonable man”. But the Law can be irrational at times, and that was how the 1st Dept. would make this doozy: a complete dismissal of the subpoena unless the defendant is given immunity from prosecution. See, being compelled to turn over evidence of wrongdoing is, somehow, wrong? Like where does the right of Discovery end and self-incrimination begin? Not so much the "chicken/egg" puzzler as the "your fist/my nose" postulate.

“It is plain that compelling Brasskey to produce the requested client list would constitute a compelled testimonial act. In essence, Brasskey would be stating “'these are the people to whom I have provided legal services’,” the panel held. And seeing as how this “would place him in jeopardy of prosecution for representing them and would be a misdemeanor in violation of the Conflict of Interest Law,” he isn’t compelled to offer “testimony” against himself. If this sounds like a closed loop, that’s because it is: the perfect Mobius Strip of modern jurisprudence—It is against the Law to follow the Law!

Thursday, March 11, 2010


NYLJ 6-03-07


4. In the case of sexual abuse hearing for children, even those grown older in the seven years after the fact of the incident, the issue will be both why it took so long and does this violate the defendant’s right to a speedy trial?

When CC was 9, visiting his stepbrother’s family over a holiday, CR was 5. The obvious question to ask is: what were they both doing in the same bathtub at that age? Which is completely irrelevant. It seems strange to say, but this is the nature of the job. The allegation of sexual abuse has to take a back seat to the frame around that event. Before you can get to the facts of the situation, you have to find out if Time has rendered the situation moot or more. It is all well and good to say, this is why the Courts are so clogged up and bogged down: every case is multiplied by its circumstances. At the end, this is how it should be: the courts are FIRST--the protection of the innocent. In this case there were two minors, which further complicates the issue. But then there is SECOND--the prosecution of the guilty. Here, you have to, as well, find out if that is part of the Time factor as well. And, further, does the victim change with Time?

The delay was both the lack of the victim’s report of the incident—only discovered by his mother six years later, finding an open journal entry in his hand. As well, upon that discovery, wanting to not assume the perpetrator’s actions were unprovoked by other factors—such as abuse at his mother’s home—and also wanting to bring this to counseling and therapy, the mother’s course of actions were careful and prudent. The prosecution of a law suit for the finding of juvenile delinquency is, as it should be, the last resort.

And yes, we can say that justice delayed IS justice denied. Then look again and ask: can an abstract concept be subject to Time? Only if we decide it is.

Wednesday, March 10, 2010


NYLJ 5-08-07


1. The civil confinement law gets its first test on a pass/fail system, and squeaks by. In essence, the question is: can you hold someone without the benefit of a jury trial? Yes, according to Mental Health Law Sec. 10.06(g). In the New York State's Attorney General’s position, to be “summary” in nature means the same as Summary Judgment. But the Justice hearing the immediate case doesn’t read it the same way. The term “summary” is the sticking point. “The Legislature has made very specific provisions to the procedures and rules governing such hearing, which mandate more than a ‘summary’ proceeding.”

How much more "more" is is a toss-up, however, when you are using the label “convicted sex offender”. You join the club of public opinion and controversy, you get a bigger bat to swing. In that event, it wouldn’t take more than the state psychiatrist’s testimony to get a 60-day period slated in for the Court to begin a jury trial to determine whether a secure Mental Health Facility is appropriate. What with so many "Fill-in-the-saddest-victim's-name" Laws out there you won't have trouble with schedules or venues, you can be sure of that. The Sex Offender Management and Treatment Act is the pro-active response and there’s very little dispute that it is a popular piece of legislation who’s time has come—it’s just that closed-door portion of the proceedings could still make some people, Civil Libertarians at least, very nervous.

Still, the jury trial is required to offer clear and convincing evidence, or at the minimum more than a shrink with a sheepskin and an Albany paycheck. And that's the safeguard. And this is another case wherein the parse is part and parcel.

Tuesday, March 9, 2010


NYLJ 6-04-07


3. In the broad scope of what is the role of the government in public education, when does a student’s social anxiety disease and depression necessitate his placement in a private school? Moreover, exactly who decides where, and if there is a disagreement between, say, the parents and an Impartial Hearing Officer, is the state still responsible for the costs of his tuition, when the parents chose not to follow those recommendations?

As “Education Presidents” come and go, and teachers end up at the bottom of the food chain of goverbucks, this will never be more than the most personal of issues in open debate, and the last to be resolved. So it is no wonder that it comes down to an administrative finding to bring a federal Appellate Court to reverse the SDNY judge’s verdict overriding the IHO decision.

Like most such rulings, it often comes down to the seated SDNY robe not standing up to the take the US Supreme Court book of School Committee of the Town of Burlington v. Department of Education, 471 US 359 (1985) down off the shelf. But the CoA, 2nd Circuit did. And what was found was “the question of whether the parents carried their burden of demonstrating that the choice was inappropriate was a close one.”

Odd construction, but the Burlington case precluded that question and “easily disposed of” the matter in the second part of the 2-part test: Whether the private placement was appropriate to the child’s needs. The judge cautioned that the job of the district court’s independent review is NOT an invitation to substitute its own notions for that of the school system’s. That the IHO officer had come to his conclusions after reviewing the same evidence pretty much proved they weren’t operating under the same criteria. “The district court grounds for disturbing the IHO’s reasoned conclusions are NOT SUPPORTED by the record. …[and] ignored the substance of the recommendations” offered by a psychiatrist who examined the boy.

The chosen school had a staff trained in dealing with anxiety disorder—something the other school could not offer. Even though the boy had shown no progress in the IHO-preferred school, it had no bearing on the issue… (About the same as saying the troop surge in Iraq justified the invasion because it was bringing peace and stability. Which ignores the obvious—any change would be likely to be an improvement on a bad situation.) “A unilateral private placement is only appropriate if it provides educational instruction specifically designed to meet the unique needs of a handicapped child.”

Monday, March 8, 2010


NYLJ 5-31-07


2. “How long is too long in a trial?”—is NOT the question.

“How much ‘how long’ meant” is.

The U.S. Court of Appeals bore down on that one in the 2nd Circuit for their review of U.S. v. Andrews, 05-2639-cr. It doesn’t matter what the case was, either; it was the time Andrews’ attorney was barred from speaking with his client that they were weighing in on.

It was during an overnight break during cross-examination that Counselor Donovan was barred by the court from consulting with his client. Exactly what transpired is a bit murky, on his end, but clear enough to the Prosecutors. They immediately reviewed their request for constitutional issues and had the ban rescinded.

However, by that time Donovan and Andrews had gone their separate ways and—incredibly—this attorney was, “for some or one reason of other,” unavailable to meet with his client (even after the 3-hour ban had been lifted?—who knew?) until the next morning.

Did this unfairly handicap his defense? Sure. Was it misconduct on the Government’s part? Not if you see their immediate review and withdrawal of the ban as acting in good faith. Ultimately, the burden fell on the Defense. The court recessed the following morning to give the attorney ample time to review testimony with his client, but, due to the fact that Donovan had failed to take notes—saying his memory of the trial was ‘hazy”, since he thought he was going to speak with his client right after the day’s court—and paid scant attention to whatever service would have told him he could meet with Mr. Andrews… Well, it was not so much a ‘bad call’ as no call at all.

That being said, the Appeals panel came to the conclusion that the 6th Amendment rights were not materially affected as to effective assistance from counsel.

(Ok. So it was bribery, fraud and other charges in connection with a scandal involving illegal investment of state pension funds with the Connecticut Treasurer…)

(And now we segue into an Olberman-type musical insert of “How Long (has this been going on)” by Ace…)

Thursday, March 4, 2010

IMPROPER CONVERSATIONS BRING CENSURE (a/k/a new pilot for next fall)

NYLJ 5-31-07


1. You could call it “ex-partie discussions with counsel.” Or, as the State Commission on Judicial Conduct administrator Tmebeckijan argued it, this was the latest incident of a type for which the subject was admonished less than a decade ago. Oh, and that his repetition of same undermined the integrity and impartiality of the system. Which statement was freely interpreted by the members of the commission as having “displayed an insensitivity to the appearance of bias.”

Or you could simply call it Folk Justice. And seeing as how the town of Hamden, in Delaware County, has seen fit to keep this court official in place since 1989 and being that he is both a non-lawyer and a farmer, we could—and shall—call him Justice Folkes.

(I know. This sounds like a pitch for a new TV show. Something that might have been a vehicle for Andy Griffith way back when.)

One would not expect Hamden to need extreme measures of rigor from the bench when, like as might, he will be settling nothing too drastic in the way of consequences. The 1998 action was by way of attempting to mediate in a tenant-landlord dispute, then failing to recuse himself while eviction proceedings went on. There was another one where he predetermined he would not issue a protective order against one of the parties in a property dispute before him. He also arraigned a defedant in that case without the DA being present, though the commission found he ultimately did the right thing in disqualifying himself when he found the counsel for the defense also happened to be the same attorney who represented Justice Folkes himself in his first disciplinary proceeding. Who also happened to be the local dairyman. So, Dairy Esq., was not only the only milk-&-butter man around, he was close to a local monopoly on legal matters, appearing before Folkes in six other cases from ’02 to ’05. and, again, Folkes gets a citation from the commission for both failing to recuse himself and not informing the other parties about the prior attorney-client relationship.

The latest incident evolved from his attempt to mediate a dispute between his neighbor and an auto body repair shop owner over a $3,000 bill, and the repairman holding the neighbor’s two cars as a hedge. Justice Folkes tried to get the mechanic’s lean to accept a partial of $800 to release one of the cars, which Folkes accepted, as the commission saw it, as an appearance of advocacy. Not that an arbitrator from the county seat, of Albany even, would have done it any different. But, hey—it didn’t work out for anyone in the end, the neighbor choosing the Dent King for a sparring match, the dust-up getting the Ring King a bout call against himself.

And wouldn’t you know it, again, guess what came up before the mediating magistrates bench? Yup, the assault warrant and two rather sheepish-looking dudes. So what does our boy do? Offer to let someone else adjudicate the matter. But he must have been doing something right because the two combatants did waive the option, and let the wayward weigher continue to preside over the dispute.

It is exactly this sort of behavior, of getting last minute reprieves, holding out ‘til the cows come home, that was getting the goat of the hot-blooded Armenian administrator. He’d recommended removal of judges in 16 cases in 4 years, getting his thumb’s-down approved 10 times and even reduced sanctions on the rest. Between censure and admonishment, there doesn’t lie a lot of room, but enough for Tmebeckjian to drive a HumVee through, loaded with stormtroopers out for revenge. And that he considers the former as little more than a bitch-slap to the latter’s finger-wave of tsk-tsk, also means the statement, “it is the proper role of a judge to preside in court proceedings, not to mediate disputes out of court,’ won’t cut the mustard.

But that’s Justice Folkes, and his “just folks”.

(Can't wait for the next installment.)

Tuesday, March 2, 2010


NYLJ 5-25-07


1. When one of the robes sitting in judgment over you used to be a Brother Officer you’d think the Blue Wall would be a consideration. And if he authors the sole dissent on your 2nd appellate reversal, you’d expect at least a soupcon of simpatico, no?

Consider the case of a former elite squad of the Street Crimes Unit chasing down a ‘suspicious black teen’ who ran from questions. You were driving the car with one hand—which also holds the gun with the finger on the trigger—and you’re trying to grab him with the other. Now you wouldn’t believe that criminal negligence would come up in your citation? That it could have been “extreme bravery in the line of duty”, true, though it ended up as “conduct unbecoming”, leading to the ex-Cop Justice to say this case “present a perfect example of why police misconduct is such a persistent, endemic problem in this county; it is condoned in high places.”

What he didn’t say was “twice”.

This time, the issue derived, as it did in the first, from whether the prosecution’s proof was sufficient to support the charge. Here, however, the Court of Appeals remanded the case to the First Department to conduct a factual inquiry into the “weight of the evidence”. This comes after the legal sufficiency review, giving the prosecution the best light, when the scales get brought out to see if there would be enough for a jury to convict beyond our old friend “reasonable doubt”. That the second review came to the same conclusion wasn’t a shock: it was almost the exact same panel. It was the prosecutor who was just as disappointed as the Ex-Cop judge, who, speaking of the Bronx, said, “I find it extremely disheartening that 3 Appellate judges cannot perceive the risk in this situation.” And further, “As the finding said the case was factually deficient, we are powerless to appeal.”

Meanwhile, the Ex-member of the Street Crimes Unit no longer had to perform those 150 hours of community service. After all, who ever heard of the pot having to scrub the kettle clean?

Monday, March 1, 2010


NYLJ 5-31-07


4. In Dziennik v. Sealift, 05-4659, it would appear that EDNY Justice Irrizarry found the defense was all at sea—like, did they know the first thing about the issues, or were they floundering from the moment their case hit the water?

The lead attorney for the plaintiff’s certainly knew his way around the dockside of things, having worked for years to limit the ability of foreign swabs to scab aboard US flag vessels. This experience in Maritime Law is almost enough to qualify him as an old salt, alone. But the way he tacks over the defense argument that his previous representation of American worker’s interests would present an “insurmountable ideological conflict” was purely naval maneuvering.

“You don’t really see that in the admiralty bar, that kind of denigration,” Mellusi mellowed. And as for the Marine Counselor’s use of a legal argument for a separate case as evidence of his lack of qualification—as “word for word shouldn’t be allowed”—well, the Judge wasn’t buying that either. As if the defense had never heard of “precedent”, or perhaps they somehow thought they’d stumbled into a copyright infringement case, Irrizarry summed up both postions as “without merit and entirely irrelevant,” respectively.

Whiter res, though? Much more sounding in the immigration debate than the sea. Consider the plight of the plaintiff’s: 209 Polish and Filipino seamen disputing lower wages dating back to 1999. the whole thing is rendered by one group of foreign workers vs. ship owners and operators Sealift, Fortune Maritime, Sagamore Shipping and Victory Maritime. The latter failed to provide “shipping articles” to the former (in violation of federal law), failed to pay overtime and represented these seasoned sailors as students, to circumvent U.S. laws. In the entire action, it was the most controversial part, for the owners, that these non-Americans could seek certification as a Class, in order to inaugurate a civil suit. As it was couched in terms of “’U.S.’ vs. Them” by the defense, they also tried to frame the plaintiff’s counsel in a traitorous light (as if they would never have opposed him in any other suit for locals). So it was their further stretch of the imagination to claim that the plaintiff’s missed the boat by not meeting tow of the four criteria of the FRCP Rule 23(a), namely: 1) they were not typical of their class; and 2) that the three Poles were not really adequate to represent those interests…which would sound like racism, if it weren’t couched in such high-falutin’ language.

Irrizarry took those to task, along with the “predominance” (read: # of incidents, like a pattern of abuse) and “superiority” requirements in FRCP Rule 23(b)(3). “The putatitve class members rely on common legal theories, namely, whether plaintiffs have been paid full wages and overtime and, if not, whether failure to do so entitles them to federal statutory penalties. Moreover, their claims arise from a common nucleus of fact, that the plaintiffs (as a group) worked for the defendants (collectively, individually) vessels from 1999, proves the defendants engaged in a uniform practice or scheme to deprive their employees of wages and overtime.

“The court finds that a class action is superior to other available methods for adjudication of the controversy at issue herein,” Iz the final word in certification.

Or the defense is all wet, is another.