NYLJ 5/17/07
1. ISSUE FOUND UNPRESERVED; SPLIT COURT REJECTS HABEAS BID
There's so many things to do when you get a client that they should walk in the door with checklists attached. And Criminal over Civil? With charge, you get eggroll...but you don't get a second chance at a defense of false ID or improper arrest.
Cast an eye on that ROA to see how it got here and page one stops your clock at "Citizen’s Arrest". No question, there should be real chain-of-custody issue, illegal detainment, or even kidnapping, if it goes wrong--leaving the door open for lawsuits as well.
We can assume that you didn't do it, why not? However, arguendo, when you rob her place and can’t even carry all the goods away with you--first and foremost: don't be greedy. If you get nabbed coming back to pick up the DVD burner which you’d stashed in the trash, then you have only yourself to blame…unless you can bring in the vigilantes. As it was the neighbors who put the arm on you, that immediately gives you a wedge issue. But it has an expiration date.
The catch is, you have to bring it up before the Appeals process and the sooner the better. Like even before you got into jurisdictional disputes. Honestly, how many have you seen tossed because of improper service? Basically, it should be your first motion, gratis, a given—and if it isn’t, you should wonder who’s representing you. The best defense starts, as any fan of “Law & Order” will tell you, right in the identification room. Sign up at the line-up or miss the boat entirely. You may not be procedurally barred but merits?—that’s another thing. In New York, a party is considered to have preserved an issue for appeal either through objection at trial (under CPL section 470.05(2)) or where the court makes and express ruling on the specific question. If all you do is object to the second ID, the aforesaid police one, whatever the civilians did is long past a valid defense.
At first blush, it looks like counsel screwed up royally…until you look at the minority opinion. “The inconvenient fact is that the trial court prevented opposing counsel from explaining the full scope of his suppression motion after the close of evidence—arguably the most important time… And did raise the issue of suggestive civilian conduct through testimony at his suppression hearing.” The 'inconvenient fact' means, the judge may have screwed up...but not enough.
Somewhere down the line, this could end up in a test case before the Nine...but not the present Nine. The right to petition for a writ of habeas corpus is always an option, just not much of one, right now.
Showing posts with label Court of Appeals. Show all posts
Showing posts with label Court of Appeals. Show all posts
Sunday, January 31, 2010
Monday, January 18, 2010
TAX PANEL BACKS LAW JUDGE’S RULING SLAMMING HIRSCHFELD MANIPULATION
NYLJ 4/23/07
3. TAX PANEL BACKS LAW JUDGE’S RULING SLAMMING HIRSCHFELD MANIPULATION
3. “They don’t make goniff’s like that anymore,” the prosecutor laughed.
“It should be his epitaph,” said the clerk. “Like engraved on his tombstone.”
In the finding of the Court of Appeals, using language like “frivolous petition” and “disruptive and dilatory” for his behavior and claims, and a “web of complicated, confused and often illegal transaction and manipulations, mingling corporate and personal funds, filing false refunds and cheating partners in a legion of schemes and deceptions” about his dealings ancillary to the tax fraud case which brought him to this conviction. The prosecutor was more than amused; he was happy. Mirthful.
“So what was your favorite part?” the prosecutor asks, egging him on. “The fact that he copped to an Alford plea on the re-trial, just so he didn’t have to admit guilt?”
“Naw,” bubblegum pops as the inveterate smoker mixes it up with Nicorette. “I gotta go with him offering three grand a piece to the hung jury on the first trial. I mean, eleven to one for conviction? He don’t mind giving a reward to everybody for one knucklehead hold out’s muleishness. That’s chutzpah.”
“I like that. Muleishness. Perfectly describes the breed.” The prosecutor leaned the chair back, fingers laced behind the neck, as he watched the boxes being loaded onto the storage room cart. Just looking at the labels, he could recall highlights from the decade-plus siege of the late parking-lot magnate’s empire of concrete slabs. Funny, how the steel-&-cement fortress was really protected by a wall of paper—all those filings. The box at the bottom of the pile was restricted to nothing but subpoenas, for the mayor, Boro president, Governor, US president—boy, the marshals must’ve laughed themselves silly with that one. And, considering that he’d also run for public office for almost all those positions, and a few others (the campaign finance materials were mixed in with brochures, bumper stickers, and buttons for “Honest Abie” in the back room), he probably, at least, knew what he would ask any of them, if he got them under oath. The one-halfpack one his desk contained most of the pleadings and a few with exhibits on one of his juicier frauds, a particularly nasty bait-&-switch number where he took the sale of downtown multi-level garage and laundered about a fifth of the proceeds thru a Canadian offshore to be directly deposited in his stock investment account. In one fell swoop he bilks the tax payer and his junior partners.
The last of the filings were the icing on the cake, sitting dead center on his blotter where he’d dropped them, like some animal carcass or body part that was sent via post as a message from a Mafia don to intimidate the intended ADA or such. It was from the executors of his estate—and it was a doozy. As a native of Poland, he’d emigrated with his parents—made an aliyah—long before WWII broke out, and was a Palestine national when he became an American citizen. Yet there it was: the claim that he was a Holocaust survivor. And that wasn’t all.
“What did you say? Holocaust survivor isn’t all?”
“Must’ve been thinking aloud,” he says. “I was just reading how his will puts his son in as an executor, but puts all his money into a pour-over trust to be administered by a bunch of rebbetzim.”
“Man. He didn’t trust anybody did he?”
“What led me to that was him filing as a holocaust survivor.”
“No kidding? Thought he lived here all his life.”
“Well, let’s put it this way. The closest he possibly came to it was seeing “Schindler’s List”—on broadcast, not PPV.”
“Hah. Sorta gives a whole new meaning to the term chutzpah, dud’n’it?”
3. TAX PANEL BACKS LAW JUDGE’S RULING SLAMMING HIRSCHFELD MANIPULATION
3. “They don’t make goniff’s like that anymore,” the prosecutor laughed.
“It should be his epitaph,” said the clerk. “Like engraved on his tombstone.”
In the finding of the Court of Appeals, using language like “frivolous petition” and “disruptive and dilatory” for his behavior and claims, and a “web of complicated, confused and often illegal transaction and manipulations, mingling corporate and personal funds, filing false refunds and cheating partners in a legion of schemes and deceptions” about his dealings ancillary to the tax fraud case which brought him to this conviction. The prosecutor was more than amused; he was happy. Mirthful.
“So what was your favorite part?” the prosecutor asks, egging him on. “The fact that he copped to an Alford plea on the re-trial, just so he didn’t have to admit guilt?”
“Naw,” bubblegum pops as the inveterate smoker mixes it up with Nicorette. “I gotta go with him offering three grand a piece to the hung jury on the first trial. I mean, eleven to one for conviction? He don’t mind giving a reward to everybody for one knucklehead hold out’s muleishness. That’s chutzpah.”
“I like that. Muleishness. Perfectly describes the breed.” The prosecutor leaned the chair back, fingers laced behind the neck, as he watched the boxes being loaded onto the storage room cart. Just looking at the labels, he could recall highlights from the decade-plus siege of the late parking-lot magnate’s empire of concrete slabs. Funny, how the steel-&-cement fortress was really protected by a wall of paper—all those filings. The box at the bottom of the pile was restricted to nothing but subpoenas, for the mayor, Boro president, Governor, US president—boy, the marshals must’ve laughed themselves silly with that one. And, considering that he’d also run for public office for almost all those positions, and a few others (the campaign finance materials were mixed in with brochures, bumper stickers, and buttons for “Honest Abie” in the back room), he probably, at least, knew what he would ask any of them, if he got them under oath. The one-halfpack one his desk contained most of the pleadings and a few with exhibits on one of his juicier frauds, a particularly nasty bait-&-switch number where he took the sale of downtown multi-level garage and laundered about a fifth of the proceeds thru a Canadian offshore to be directly deposited in his stock investment account. In one fell swoop he bilks the tax payer and his junior partners.
The last of the filings were the icing on the cake, sitting dead center on his blotter where he’d dropped them, like some animal carcass or body part that was sent via post as a message from a Mafia don to intimidate the intended ADA or such. It was from the executors of his estate—and it was a doozy. As a native of Poland, he’d emigrated with his parents—made an aliyah—long before WWII broke out, and was a Palestine national when he became an American citizen. Yet there it was: the claim that he was a Holocaust survivor. And that wasn’t all.
“What did you say? Holocaust survivor isn’t all?”
“Must’ve been thinking aloud,” he says. “I was just reading how his will puts his son in as an executor, but puts all his money into a pour-over trust to be administered by a bunch of rebbetzim.”
“Man. He didn’t trust anybody did he?”
“What led me to that was him filing as a holocaust survivor.”
“No kidding? Thought he lived here all his life.”
“Well, let’s put it this way. The closest he possibly came to it was seeing “Schindler’s List”—on broadcast, not PPV.”
“Hah. Sorta gives a whole new meaning to the term chutzpah, dud’n’it?”
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