A New Year's Resolution

A fellow blogger on the End of Esq. site (Chronicling the Collapse of the Legal Profession in America) has just made a committed resolution.

"I resolve to expose the American Bar Association as a fraud on the profession and to work vigorously throughout the year to strip it of its law school accreditation function. The ABA has betrayed the Main Street practitioner and is on a campaign to globalize the practice of law, which, if successful, will mean hundreds of thousands of legal jobs lost here in the United States and the consolidation of the legal profession into a series of gega multinational firms where human capital is purchased wherever it is cheapest.

**** ***** *****

Everywhere I go I hear complaints from lawyers about the supply/demand imbalance, the threats of outsourcing and the utter siege the practice of law has become. Lawyers are fed up with scraping by or working around the clock for slave wages and see the profession collapsing before their eyes. They have no faith in the elders of the profession and why should they? The big firm lawyers and pampered princes have made the profession a miserable way to make a living and allowed the industry to be flooded by more and more lawyers. No law school student contemplates that a municipal worker like a fireman or garbage collector will have a more enjoyable and more profitable life than he, but that is the sad reality. In a span of 25 years, the legal profession has become poop.

2009 is the year we push back. Join us."

http://endofesq.com/?p=784


How to push back? By keeping the story alive. Here's an email I received yesterday from a woman at the Washington Post.

"Hi. I'm working on a story about projections that unemployment among those with a BA or higher degree is about to hit record highs.
I was wondering if you are hearing from out of work folks with JDs and what you're hearing, whether they are finding it hard to find work. How hard is it to get temp lawyer work? Is it getting more competitive?
Are there folks at some of the legal temp agencies you recommend I talk to?
Any help is appreciated. Thanks."

Share your thoughts in the comments section, or email me and I will provide you with her contact information.


Also, if you haven't done so already, send a message to the ABA by voting for this blog in the ABA's annual blog contest. Voting ends on the 2nd.

http://www.abajournal.com/blawgs/blawg100_2008/careers

2008 Beastly Behavior Award - David Perla

"David Perla stated that American lawyers typically hired to perform document review on major litigation have minimal skills and zero motivation. In contrast, Pangea3 can attract the best and the brightest young lawyers in India, fluent in English and trained in English common law. Perla said clients have held "bake-offs" in which the Pangea3's Indian lawyers were asked to perform the same tasks as U.S. contract lawyers. He said the Indians soundly trounced the Americans."

Meanwhile, rates are dropping like a rock in NYC, as we have to compete with unlicensed foreigners.

http://newyork.craigslist.org/mnh/lgl/973909667.html

French Prenuptial Agreement Adopting "Separation of Estates” Regime Constituted Waiver of Equitable Distribution.

Court of Appeals Holds French Prenuptial Agreement Opting out of “Community Property” Scheme in Favor of a “Separation of Estates” Regime Constituted Waiver of Equitable Distribution. Error to Preclude Recovery of Counsel Fees to Oppose Affirmative Defense Predicated on Prenuptial Agreement.


In Van Kipnis v Van Kipnis, --- N.Y.3d ----, 2008 WL 5244630 (N.Y.) the Court of Appeals held that the parties' foreign prenuptial agreement precluded the equitable distribution of certain property under New York law, affirming the courts below. Plaintiff wife and defendant husband were married in France in 1965. At the time of the parties' marriage, the wife was a Canadian citizen from Quebec studying at the Sorbonne and husband was a citizen of the United States, having recently completed college. Prior to the marriage ceremony, wife had a "Contrat de Mariage" drafted under the French Civil Code and arranged for legal counsel to explain the terms of the prenuptial agreement in English to husband. The agreement was executed by the parties on September 30, 1965. Under the provisions of the Contrat de Mariage, the parties opted out of the community property scheme (the governing custom in France) in favor of a separation of estates regime. In relevant part, the agreement provided: "The future spouses declare that they are adopting the marital property system of separation of estates, as established by the French Civil Code. "Consequently, each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever. "They shall not be liable for each other's debts established before or during the marriage or encumbering the inheritances and gifts that they receive. "The wife shall have all the rights and powers over her assets accorded by law to women married under the separate-estates system without any restriction." After the wedding, the parties moved to New York where they resided during their38-year marriage. The Husband was employed in finance while wife worked as a professor at Cooper Union and later as a cultural counselor for the Quebec government. The Wife was also the primary caretaker of the parties' two children, now emancipated. Throughout their marriage, the parties maintained separate accounts and assets, with the exception of the joint ownership of their two homes--a $625,000 house in Massachusetts and a cooperative apartment in Manhattan valued at $1,825,000. In 2002, the wife commenced an action for divorce and ancillary relief. Before trial, Supreme Court granted husband's motion to amend his answer to assert the 1965 prenuptial agreement as a defense to wife's equitable distribution claims. Supreme Court appointed a Special Referee to conduct a hearing on the issues of equitable distribution, maintenance and counsel fees. The Referee determined that the French contract provided for the separate ownership of assets held in the parties' respective names during the course of the marriage. As a result, the husband retained his liquid assets of approximately $7 million and wife kept her assets ranging from $700,000 to $800,000. As to the jointly held properties, which the parties agreed were subject to equitable distribution, the Referee recommended that the wife be awarded the Manhattan apartment, together with $75,000 in reimbursement for repairs, and that the husband be awarded the country home in Massachusetts. The Referee proposed that the wife receive $7,500 per month in maintenance until either husband or wife dies or the wife remarries. The Referee concluded that legal fees expended in connection with wife's challenge to the prenuptial agreement were not compensable under Domestic Relations Law 237. After deducting that portion of wife's claim for counsel fees attributable to contesting the agreement, the Referee awarded wife $92,779.57 in attorneys' fees. Supreme Court confirmed the Referee's report. The Appellate Division affirmed , with one Justice dissenting. The Court of Appeals modified. The Court of Appeals rejected the wife’s contention that all of the parties' property should be subject to equitable distribution under Domestic Relations Law 236(B)(5) because the 1965 agreement, drafted and executed in France, was intended to apply to property ownership during the course of the marriage, but not to the distribution ofproperty in the event of a divorce. In her view, the primary purpose of theagreement was for each spouse to avoid liability for the other's debts. The Court of Appeals noted that it is well settled that duly executed prenuptial agreements are generally valid and enforceable given the "strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements" (Bloomfield v Bloomfield, 97 N.Y.2d 188, 193 [2001]. Prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law 236(B), enacted in 1980 as part of New York's Equitable Distribution Law. The statute provides that, unless the parties agree otherwise in a validly executed prenuptial agreement pursuant to section 236(B)(3), upon dissolution of the marriage marital property must be distributed equitably between the parties while separate property shall remain separate. As relevant here, separate property is defined to include "property described as separate property by written agreement of the parties pursuant to subdivision three of this part" . Under the statute, a prenuptial agreement may include a "provision for the ownership, division or distribution of separate and marital property" and is valid and enforceable if it "is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law 236[B][3]. The Domestic Relations Law therefore contemplates two basic types of prenuptial agreement that affect the equitable distribution of property. First, parties may expressly waive or opt out of the statutory scheme governing equitable distribution. Second, parties may specifically designate as separate property assets that would ordinarily be defined as marital property subject to equitable distribution under Domestic Relations Law 236(B)(5). Such property would then remain separate property upon dissolution of the marriage. In either case, the intent of the parties "must be clearly evidenced by the writing" .(Tietjen v. Tietjen, 48 AD3d 789, 791 [2d Dept 2008] ). Here, the parties' written agreement, adopting a "separation of estates" scheme,fell within the second prenuptial agreement category. The agreement specifiedthat separate ownership of assets applies not only to the property that each partyhad acquired at the time of the marriage, but also to property that they "may cometo own subsequently by any means whatsoever." It further assures that "wife shallhave all the rights and powers over her assets accorded by law to women marriedunder the separate-estates system without any restriction." The Court held that contrary to wife's argument, the Domestic Relations Law contains no categorical requirement that a prenuptial agreement must set forth an express waiver of equitable distribution.When read together, Domestic Relations Law s 236(B)(1)(d)(4) and (B)(5)(b)provide that assets designated as separate property by a prenuptial agreement willremain separate after dissolution of the marriage. That was the case here. The Court of Appeals agreed with the courts below that the agreement constituted an unambiguous prenuptial contract that precluded equitable distribution of the parties' separate property, rendering it unnecessary to resort to extrinsic evidence.

The wife also argued that the courts below erred in precluding her recovery of legal fees under Domestic Relations Law 237 for services provided in opposing her husband's affirmative defense predicated on the prenuptial agreement. The Court of Appeals agreed with her. Neither party sought to set aside the prenuptial agreement. Instead, their dispute centered on whether the terms of the contract applied to the ownership of assets upon divorce. In this respect, her request was similar to the fee application inVentimiglia v. Ventimiglia (36 AD3d 899 [2d Dept 2007] ), where attorneys' feeswere awarded to a party who contested her spouse's affirmative defense based on anantenuptial agreement. It held that remittal to Supreme Court for reconsideration wasnecessary because this portion of wife's fee application should not have beenexcluded as a matter of law.

Happy Holidays

Thanks for all the kind feedback on my last post. One of my goals for 2009 is to actually dedicate some time to reviving this, so wish me luck.

Happy and healthy holidays to everyone. I hope you made the most of the office holiday parties...

Merry Christmas

"There is a new staffing agency in New York City called the Vinmar Agency (http://vinmarstaffing.com/). Apparently, they asked contract attorneys to cancel their Christmas plans. Many people canceled plans to go home to see their families because they needed the work. Three days into the project they fired everyone. Merry X-mas, indeed."

The ABA Is Killing Us

The document reviewers have already been cooked and carved up for Thanksgiving.

Think you can run off to shitlaw to avoid the slaughter? Think again. The Indian LPO's are now aggressively going after the foreclosure banks and insurance companies for work.

"Another firm, Pangea3 LLC., says its revenues in India doubled in size in the first quarter, and doubled again since then.

Firms have already started handling related reviews of bank assets. UnitedLex, for example, has seen this area of its business grow by 50% since late March, according to Ajay Agrawal, founder and chief solutions officer. 'There are millions of assets shuffling hands, and a lot of work,' says Agrawal, who specialized in asset-backed securities as a lawyer in the US.

It’s not just the highly technical work of reviewing complex derivatives that offshorers are gunning for. Home foreclosures and individual bankruptcies have generally been processed by local lawyers. Bits of the work, on loans held by banks with captive centres in India, have previously moved offshore. But now, with almost 280,000 foreclosures in October alone according to RealtyTrac Inc., up 25% from the same month last year, and up 5% from the month before, even after several states mandated delays on foreclosures, the momentum for offshoring has clearly been building up.

'Volume is a huge driver over the past 18 months, and it still has not plateaued,' says Agrawal, who claims that the foreclosure and bankruptcy processing business at UnitedLex took off at the beginning of the year, and has doubled every quarter since.

Bangalore-based Clutch Group is aggressively pitching itself for a newer piece of this market on foreclosures, one that requires court intervention and typically hasn’t come offshore yet. Lenders spend around $1,000 on this type of foreclosure in the US, and the firm estimates that around 60% of the work done before the lawyers file the case is now segregated and can be brought to India."

http://www.livemint.com/2008/11/26010816/In-downturn-litigation-bonanz.html

The S + C Taxi Desk

"The guy at the Sullivan taxi desk is arrogant, nasty and disrespectful to contract attorneys--he has a contempt for us. I am not sure if his name is Colin, but I think it is.

A call to contract attorneys working at 55 Water Street needs to be made so that he can straighten up his anger and act. Because of us, he has work...if he does not like us, he can find something else to do.

Please ask people to expose him. There is no need to take his abusive nor displaced anger."

Appealing, to Infinity and Beyond

Earlier this week, the Appellate Division, 2d Department, granted defendant's leave to appeal from the decision of the Appellate Term in Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term, 2d Dep't, 2008).

You'll recall that this decision involved, inter alia, a question as to whether a follow-up verification request done only 27 days after the first request is proper. You'll also further note that the No-Fault Regulations, as per 11 NYCRR § 65-3.6(b), require that a follow-up request be made between 30 to 40 days following the initial request: "At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested..."

Presumably, the appeal is intended to deal with this issue, and particularly the differing interpretations offered by the majority and the dissent concerning New York & Presbyterian Hosp. v. American Transit Ins. Co., 287 A.D.2d 699 (2d Dep't, 2001). In sum, a majority of the Appellate Term (Pesce and Steinhardt, in particular) in Infinity Health Prods. found that the Am. Transit decision "does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification."

Justice Golia, ever a contrarian, dissented in Infinity Health Prods. and opined that in Am. Transit, the Appellate Division found that an early follow-up verification request (27 days later, not 30-40) was proper.

I think Golia missed the mark this time. It appears to me that the issue of the follow-up request's earliness was simply not litigated. The following sentence makes this clear to me: "Here, the defendant timely requested additional verification of the claim from the respondent by letter dated October 5, 1999, and when such verification was not received within 30 days, it sent a timely follow-up letter dated November 1, 1999." 287 A.D.2d at 700. This sentence makes no sense, as November 1, 1999 is obviously less than 30 days from October 5, 1999. Since 30 days had not elapsed, neither the Court nor American Transit could properly come to the conclusion that the "verification was not received within 30 days."

The only way the Appellate Division can get away with making such illogical statements is that they are limited to what issues are actually being litigated and have been preserved for appeal. The plaintiff in the case may not have ever, either before the Supreme Court or the Appellate Division, raised the issue of the follow-up request being too early. Indeed, Golia's states in his Infinity Health Prods. dissent that the issue was never raised by the parties in Am. Transit. 21 Misc.3d at 5. If so, then the App. Div. really had no place raising this issue sua sponte, and so it is no surprise that they didn't.

In short, the effect of early follow-up verification requests was never litigated in New York & Presbyterian Hosp. v. American Transit Ins. Co. The Appellate Term was thus not bound by this "precedent" in deciding Infinity Health Prods., and, in my opinion, the majority came to the proper conclusion upon doing so. For whatever reason, Justice Golia chose to act as if the Am. Transit is binding, but this is entirely illusory.

There's simply no need to second-guess the fact that the Insurance Department put an explicit timeframe on follow-up verification requests. Under the Regulations, they must be made from 30 to 40 days after the first request, assuming the verification was never received. A failure to abide by the timeframe on the side of lateness should have the same effect as being too early: a waiver of the request. There's no logical reason that a violation in one direction should be treated differently than a violation in the other direction.

Let's hope that the Appellate Division uses this opportunity to give effect to the Regulations as written and clear up a piece of outdated and misunderstood case law.

--

P.S. My thanks to David Barshay, Esq., for shaming me into coming out of blogging retirement every once in a while.

New Attorney Conduct Rules for New York

On December 17, 2008 Chief Judge Judith S. Kaye and the Presiding Justices of the Appellate Division announced a new set of attorney conduct rules for New York, effective April 1, 2009. The Rules of Professional Conduct, which will replace the existing Disciplinary Rules, introduce a number of important ethics changes for New York lawyers and are set forth in a new format and numbering system that are based on the ABA Model Rules.
Highlights of significant ethics changes contained in the new Rules of Professional Conduct are set forth below:
Adoption of ABA Model Rules Format This standardized format, used in 47 other states, is organized according to a lawyer’s role as litigator, counselor, negotiator, etc., and will facilitate a lawyer’s ability to assess specific ethical issues in context. It has generated a national body of ethics law that will ease ethical research and guidance by New York lawyers as well as out-of-state lawyers seeking to research and follow New York’s rules.
Scope of Representation and Allocation of Authority Between Client and Lawyer (Rule 1.2)
Rule 1.2 codifies a lawyer's obligation to abide by a client’s decisions regarding the objectives of representation, including whether to settle a civil matter or to enter a plea, waive a jury trial or testify in a criminal matter.
Fees and Division of Fees (Rule 1.5)
Rule 1.5(b) requires a lawyer to communicate fees and expenses to the client before or within a reasonable time after commencement of representation, thereby extending the current letter of engagement rule (22 NYCRR 1215), without the necessity of a writing, to all matters currently excepted under that rule.
Confidentiality of Information (Rule 1.6) and Conduct Before a Tribunal (Rule 3.3)
Rule 1.6(a)(2) permits disclosure of confidential client information impliedly authorized to advance the client’s best interests when it is reasonable or customary.
Rule 1.6(b) permits a lawyer to reveal or use confidential client information necessary to “prevent reasonably certain death or substantial bodily harm.”
Rule 1.6(b)(4) permits a lawyer to reveal confidential information to the extent necessary to secure legal advice about compliance with ethical rules or other laws.
Rule 3.3 requires a lawyer to correct a false statement of material fact or law previously made to the tribunal by the lawyer or the client and to take necessary remedial measures, including disclosure of confidential client information.
Rule 3.3 requires a lawyer who knows that a person intends to, is or has engaged in criminal or fraudulent conduct related to the proceeding to take reasonable remedial measures, including disclosure of confidential client information.
Current Clients: Specific Conflict of Interest Rules (Rule 1.8) Rule 1.8(c) prohibits a lawyer from soliciting any gift from a client, including a testamentary gift, for the benefit of the lawyer or a person related to the lawyer; or from preparing on a client’s behalf an instrument giving a gift to the lawyer or a person related to the lawyer, unless the lawyer or recipient of the gift is related to the client and a reasonable lawyer would find the transaction fair and reasonable. In a business transaction between lawyer and client, Rule 1.8(a) requires the lawyer to advise the client in writing to seek the advice of independent counsel and to give the client a reasonable opportunity to do so; and the client must give informed written consent that addresses the lawyer’s role in the transaction and whether the lawyer is representing the client in the transaction. Special Conflicts of Interest for Former and Current Government Officers and Employees (Rule 1.11) Rule 1.11 governs the lawyer’s obligations based on conflicts presented when a lawyer moves from government to private employment and vice versa, and provides that such conflicts may be waived by the government entity upon informed consent. Duties to Prospective Clients (Rule 1.18) Rule 1.18 governs a lawyer’s duties to a prospective client when that person and the lawyer ultimately do not form an attorney-client relationship. It applies the same duty of confidentiality owed to former clients. However, a lawyer or law firm may nonetheless oppose a former prospective client if the lawyer’s current client and former prospective client give informed written consent, or the law firm may do so if certain conditions are met, including timely screening of the disqualified lawyer and prompt written notice to the former prospective client. The protections of Rule 1.18 are expressly denied to a prospective client who communicates with a lawyer in order to disqualify the lawyer from handling a materially adverse representation in the same or a substantially related matter. Voluntary Pro Bono Service (Rule 6.1) Though not enforceable through the disciplinary process, Rule 6.1 reaffirms a lawyer’s responsibilities to provide at least 20 hours of pro bono legal services each year to poor persons, and to contribute financially to organizations that provide legal services to poor persons. Other Noteworthy Developments Rule1.3 (Diligence) mandates that a lawyer "shall not neglect" a legal matter and obliges a lawyer to “act with diligence and promptness” in representing a client. Rule 1.4 (Communication) codifies a lawyer’s duty to communicate effectively with the client, including keeping the client reasonably informed about the status of the matter promptly complying with a reasonable request for information. Rule 1.12 applies conflicts rules to arbitrators and mediators, other third-party neutrals and law clerks. Rule 1.14 provides guidance to a lawyer whose client has diminished capacity. It allows the lawyer to take action to protect the client from substantial physical and financial harm, and permits disclosure of confidential client information to the extent reasonably necessary to protect the client’s interests. Rule 2.4 deals with lawyers serving as third-party neutrals, such as arbitrators and mediators, and sets forth their obligations with respect to unrepresented parties. Rule 3.2 prohibits a lawyer from using means that have no substantial purpose other than to delay or prolong a proceeding or cause needless expense. Rule 3.9 requires a lawyer to alert legislators and administrative agencies as to when the lawyer is speaking as a paid advocate rather than a public citizen. Rule 4.3 sets forth a lawyer’s obligations when dealing, on behalf of a client, with a person who is not represented by counsel. Rule 6.4 sets forth a lawyer’s duties when participating in law reform activities that may affect the interests of the lawyer’s clients. Rule 8.2 expands the prohibition against false statements of fact regarding “qualifications” of judges or judicial candidates to include false statements about “conduct or integrity.” The new Rules of Professional Conduct are available at http://www.nycourts.gov/rules/jointappellate/ (Source: http://www.nycourts.gov/press/pr2008_7.shtml) (Last accessed: December 18, 2008)

Another Request

"Can you post this please?

I need to talk to a few contract attorneys for a big national story I’m doing on contract attorneys. Can someone please call me with their experience today or tomorrow?

Thanks much.

Julie Kay

Florida Bureau Chief
National Law Journal
954-468-2622
julie.kay@incisivemedia.com"

Rape Conviction Overturned for Lack of Specificity

This week, in People v Bennett (2008 NY Slip Op 09811 [2d Dept 12/09/08]), the Second Department overturned a rape conviction when the second-grade victim could only give a nine-month window for the date of the incident. The Court explained that while

a per se (nine-month) bar does not apply, a significantly lengthy period is a factor to be considered, with "proportionally heightened scrutiny" given to whether the People's inability to provide more precise times can be justified as against the important notice rights of the defendant (People v Sedlock, 8 NY3d at 539; People v Watt, 81 NY2d 772, 775).

At trial, the victim testified that the two incidents occurred about two weeks apart when she was in the middle of second grade. The first incident occurred when her mother was at the grocery store with the victim's brother. The second incident occurred when the mother took the brother to the doctor. The People should have inquired as to when the mother took the victim's brother to the doctor and/or should have sought to obtain the brother's medical records to narrow the time frame of the crimes as alleged. The defendant's ability to prepare a defense was further stymied by the fact that the victim testified that the incidents occurred in the middle of her second grade school year, which would have been during the winter, but the amended bill of particulars provided that the incidents occurred when the weather was warm. Under these circumstances, when the time period charged, namely seven months, approaches the nine-month period found to be per se unreasonable in People v Beauchamp (74 NY2d 639; see People v Sedlock, 8 NY3d at 538), the People are subjected to "proportionally heightened scrutiny" as to whether their inability to provide more precise times is justified (id at 539). There is no indication that the People inquired of the mother or of the doctor of the victim's brother regarding as to when the brother was treated.

As Assistant Monroe County Public Defender David Abbatoy (who brought Bennett to our attention) has noted, Bennett and the cases cited within make clear that the judge should not simply rely on the prosecutor's representations regarding the victim's intelligence,etc. The government should demonstrate its inability at a hearing. The judge should then make an independent determination as to whether more precise notice is required based on the complainant's age, etc. This should occur at a hearing with sworn testimony from the complainant. Perhaps we can call it a "Sedlock Hearing."

Is The Reaper Visiting The Staffing Agencies?

"Tom,

Can you post the following question:

Hi. I’m doing a story about contract attorneys for the National Law Journal and was wondering if anyone has heard of any staffing agencies that have closed in recent months or weeks.

Thank you,

Julie Kay
Florida Bureau Chief
National Law Journal
954-468-2622
julie.kay@incisivemedia.com"

Sallie Mae Really Sucks

"Just got dinged with a $25 forbearance 'processing' fee. You think Aunt Sallie would be content with her sky-high accruing interest. Even though Sallie Mae just received a 3.6 billion dollar bailout gift from the American taxpayers in the third quarter, looks like she doesn't want to turn around and share the holiday love by waiving the fee.

The Sallie Mae customer service operator was apparently from India. I wonder if any of her friends are working on any of our outsourced document review gigs."

The "DiscoverReady" Churn and Burn Continues

"We were told that this was going to be a 2-3 month project. Last night, just after several days of work, I got the call not to come in. They claim DiscoverReady 'overstaffed' our project. This is nuts. These people really know to exploit the suffering of a desperate economic situation. DiscoverReaady sucks."

The "Lex-Pollution" Tax Audit

"TTT, here is the language of the warning I received:

By now you would or should have received in the mail a standard letter from Lexolution on Lex letterhead which reads: we are being audited by the NYS Taxation and Finance Department to determine compliance with the state's regulations regarding income tax withholding.

As part of the audit, we were asked to contact a number of current and former employees and request they complete form AU-7, the "Employee Wage Statement" (enclosed.)

This form lays out wages paid by Lexolution to you in 2005, 2006 and 2007 on which either

1) no state tax was withheld, corresponding to pay periods when you requested that you be classified as "exempt" in our payroll system, or

2) due to changes in withholding status you asked us to implement during the withholding period, it appears that an incorrect amount of tax was withheld.

On the form, you are asked to certify that these wages were reported on your NYS tax returns in the appropriate years, and that you have paid the taxes due on these wages.

Please return the AU-7 form in the enclosed post paid envelop, by 12/12/08. If you do not return the AU-7, we will note that in our response to the auditor.

I hope they audit and fine Dickhead Osman for his persistent abuse and violations.

What about an OSHA and/or NYC Fire Department inspection of Lex sites? That would be awesome to have them up to code.

Bastards!"

Second Circuit Recognizes Importance of Defendants' Right To Examine Prosecution Witness's Racism

In two cases, the Second Circuit Court of Appeals issued rulings emphasizing the rights of defendants to cross-examine prosecution witnesses regarding evidence of their racial or ethnic bias.In Brinson v Walker (--- F.3d ----, 2008 WL 4890153 [2nd Cir 11/13/08])the court granted habeas corpus relief and vacated a New York state robbery conviction whee the New York trial judge precluded the black defendant from presenting evidence (both through cross examination and by extrinsic evidence) that the complainant harbored strong racial bias towards blacks. The Court first reviewed the evidentiary right to present evidence or bias and concluded that

where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness's testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.

Applying the five factor test set forth by the Supreme Court in Delaware v. Van Arsdall 475 U.S. 673 the Court ruled that the error was not harmless, given the critical role of the complainant's testimony and the absence of other means to establish this bias.

Similarly, in U.S. v. Figueroa --- F.3d ----, 2008 WL 4911158 [2nd Cir 11/18/08], the Court held that an Hispanic defendant's constitutional right to confrontation was violated when the federal district court judge precluded cross-examination of a prosecution witness about the witness's swastika tattoos. The Court explained a person choosing to have swastika tattoos tends to suggest that the person holds racial, religious, or ethnic biases and this evidence of bias is relevant and admissible under Federal Rule of Evidence 402. However, given the other evidence of guilt, the Court found this erroneous violation of the right to confrontation to be harmless beyond a reasonable doubt.

Down in the Data Mines

Check out the following article from the ABA Journal:

http://www.abajournal.com/magazine/down_in_the_data_mines/


Speaking of the ABA, don't forget to vote for Temporary Attorney in the 2008 Blawg100 competition. Looks like we are in stiff competition against the Clerkship Notification blog. As someone on JDU so aptly noted,

"How the fuck is the 'Clerkship Notification Blog' ahead of Temporary Attorney? Who the fuck even cares about what judge some ivy league dickwad is going to be sucking off next term? It's almost insulting because it's as though a whole class of legal workers are being ignored and swept under the rug. I wouldn't be surprised if they rigged the "voting" to ensure that TemporaryAttorney doesn't win.

By voting TTT to the top, the plight of the vast majority of today's law grads will at least get some attention from the ABA. They would like to go on believing that the big issue of the day in the minds of recent law grads is who gets a judicial clerkship, but we have to show them just how bad today's legal job market really is.

FUCK THE ABA. Spread the message through as many of their own channels as possible!"

http://www.abajournal.com/blawgs/blawg100_2008/careers

Slain by a Madman

Didn't feel like posting this, but it is the current talk of temp town.

How awful to toil away in some soul-crushing, paper-pushing job, and then to be shot dead in cold blood by some crazed lunatic on your weekend off, and then, to top it all off, be brandished as some kind of fringe freak as your death is sensationalized on the cover of some right wing tabloid rag.

http://www.nypost.com/seven/12042008/news/regionalnews/lawyers_deadly_secret_142622.htm

Molineux and Multiple Count Prosecutions

In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be considered regarding the other counts.

While the Court approved introduction of detailed evidence regarding how stolen property the defendant possessed came to be stolen, it disapproved the use of such evidence to show that unrelated activity was an attempted burglary. In reversing some counts, the court found that possession of the proceeds of prior burglaries "has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged" with regard to a currently charged attempted burglary. Thus, the Court held that the trial court

erred by failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar's tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar's tools counts.

The Court also arguably acknowledged, sub silentio, that the viability of
the persistent felony statute is uncertain (it declined to reach the
issue), even though the Court of Appeals has consistently upheld the
statute against Apprendi (Apprendi v New Jersey, 530 US 466 [2000) claims
(see People v Rivera, 5 NY3d 61 [2005]. The post-Rivera decision of the
United States Supreme Court in Cunningham v California, 549 US 270 [2007] suggests that Rivera might not be the last word on the constitutionality of the New York persistent sentencing law.

Evelyn Louie: "Times Are Tough"

"I am working at De Novo right now. I feel very lucky to have a job. Evelyn came into our office last week to let us all know that times are tough and all new projects will be staffed at a $35 flat rate, as the market is so tight. Also, all other 'perks' like free lunch on Fridays have been cut.

Just an update for your site. It would be good to hear what other agencies are saying. The rumor at De Novo is that we maybe seeing some agencies fold.

Hope your employed!"

Happy Thanksgiving, Indeed!

http://blogs.wsj.com/law/2008/11/26/more-legal-work-moves-to-india-including-sexy-stuff/#comment-359178

Preservation of Error, Sandoval, and T.O.D. Motions

In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"

that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.

$500 an hour!

The WSJ reported earlier this week that certain plaintiffs' firms have been billing us out at over $500 an hour! And they say they can't afford to kick us over a measly health insurance contribution, or they can't find the funds necessary to house us in a halfway decent working environment. Pathetic.

"After a big class-action settlement, how much should a plaintiffs’ firm be allowed to recover for its use of temporary lawyers? As much as $100 per hour? $200 per hour? More?

The issue recently came up in a class-action settlement involving a $750 million settlement with Xerox and its former auditor, KPMG. According to the story, from Forbes.com, a fee request pending in a Connecticut district court suggests that the lawyers who negotiated the deal want to take home roughly $83 million in fees for the temp lawyers, who only cost the firm an estimated $11 million in the first place. The $83 million sum reportedly represents more than half of the $150 million the lawyers want to take home for their trouble.

According to the story, Stephen Vasil, a Yale Law School graduate, and Andrew Gilman, a New York University law grad, were hired through a temp agency to work on the Xerox case. Vasil says they often performed work that didn’t exactly require their pricey law degrees, including reviewing electronic documents to identify their author and destination. Vasil was paid $35 an hour, Gilman, $40. Yet the law firms in the case are asking for roughly $500 an hour for their services.

'We joked we could hire a bunch of 10-year-olds to do it for us,' says Vasil, 34."

http://blogs.wsj.com/law/2008/11/24/in-xerox-class-action-fees-for-temp-lawyers-take-center-stage/

DiscoverReady

"Hear Sean/Shawn Treadwell is staffing through Strategic. It's for 'DiscoverReady' -- Quick look at their website reveals that they are big into 'offshoring' document review.

Hello India, goodbye USA!

If you wind up working there, heads up! They confiscate cell phones, and some lady with blonde hair stares at you all day from within a glass cage."

D.C. Friday Afternoon Mini-Massacre: Debevoise Axes 40 Contract Attorneys

"We were then told by the Firm's contract attorney supervisor (Greg) within the last few days that the hours for next week would be shortened to 45 hours, but that this was still a long term project. See how many changes have been made already? People started getting antsy...So here's the "guts" of the story: Today (Friday), we're on the review, and the LegaleStaffing supervisors are both there. In fact, one of them was nice enough to bring us all bagels and muffins from Corner Bakery. In fact, they told us that they were planning on this being a 9 month - 1 year project. In fact, a couple of the supervising attorneys from the firm were roaming the space and answering spot questions.

Then, at 4:15 PM this afternoon, there was some mysterious shuffling by the LegaleStaffing supervisors. And then they mysteriously called about 10 people out of the room one at a time. And that's when the rumor mill started going that they were letting some people go from the project. We all figured that those people who they took out of the room were let go... We couldn't have been more wrong. Instead, THE REST OF US WERE BEING LET GO and we were told by LegaleStaffing that the project was immediately being reduced from 50 to 10 attorneys, and that we had to sign out, effectively at 5 PM today (November 21)... Now recall, the firm had scaled this project up by 30 attorneys in the last 3 days, and now, they were effectively telling all of us to get the hell out, on a Friday Afternoon. Apparently, the case seemed to take a new direction... or something..... but even the Staffing Agency was in the dark.

People were in a state of disbelief. We all turned in our case binders and time sheets, and then exited into the cold air of a November day in Washington, D.C.

Guess people will think twice before working for D&P in the future... I don't blame LegaleStaffing... it sounded like they were kept in the dark as much as we were...

Just disgraceful behavior by D&P, letting 40 contract attorneys go with absolutely no warning on a Friday afternoon, the week before thanksgiving.

Hope this makes it to your page. Heartless bastards. I hope they all rot."

Yolanda Young

Yolanda Young has launched a blog. http://www.onbeingablacklawyer.com You might remember her as the former Covington & Burling staff attorney who chronicled her experience as a minority attorney there in the Huffington Post piece, “Law Firm Segregation Reminiscent of Jim Crow.” http://www.huffingtonpost.com/yolanda-young/law-firm-segregation-remi_b_91881.html

Young recalls, “I was surprised and disheartened by the intensely negative comments that followed on blogs like Above The Law. Even after Covington issued a statement that was basically conciliatory and in no way a denial of my accusations, those commenting refused to focus on some of the easily verifiable facts in the piece. They chose instead to make personal attacks on me and reduce the discussion to one that centered on anti-affirmative action rhetoric.”

There was, however, a silver lining. Young discovered a large number of attorneys who were sympathetic to her position but didn’t want to post their comments on websites that were generally hostile to minorities. This group instead sent Young personal emails.

Says Young, “I realized there was a real need for a place where African American attorneys and law students could gather to network, disseminate information and poke fun."

Sullivan & Cromwell Update

The economy is bad, so that means that down here at S&C, the clients are starting to dwindle, and the ones the firm has are having trouble paying their legal bills. New cases aren't starting, which means that associates and litigation analysts don't have anything to do. That means they're starting to get the work that contract attorneys usually get.

This means that even "lifer" temps who have been working at S&C are being summarily dismissed, usually with little to no notice that we could lose the steady source of income that we'd come to expect. No notice, no severance. Your last day of earning is today. If you discuss this with lawyers not trapped in the temp system, or with basically anybody not on the inside, the situation smacks of outrageous and patent injustice.

Here's my question: what's the point of having a blogroll of people devoted to complaining about the life of a contract attorney if that position isn't being used to do some good? Sure, it's cathartic to bash on "biglaw" and the parasitic temp agencies, but at the end of the day, it's not helping anybody out in any real way.

So maybe the most obvious thing to wonder is why we aren't trying to unionize. A friend of mine who is a biglaw associate recently asked me this. And I struggled to come up with a good answer. I guess what people think is that people would cross the lines, because we're all so desperate for money, what with bills and loans. And that's a valid concern. But isn't that the case with all industries that have unionized? Sure, it's true that the temp factories are filled with people who will work under any condition, endure any injustice or humiliation. What I've found is that more and more, temp attorneys are immigrants who scraped by at Joe's #1 Law School and got the lowest passing score on the 5th try at taking the bar. And in any other situation, their resume wouldn't be considered next to that of somebody who went to a top tier law school and graduated near the top of the class. But here, where speed is the only criterion for job success, everybody who can click quickly and keep their mouth shut is equal.

I think it's about time. The economy is tanking, and attorneys all over the place are being let go. It's only going to get worse unless the people who do this job day in and day out start doing something to demand better treatment.

So what I propose is that you, along with the other temp attorney bloggers who may have some kind of audience, start to use this position as a means to start organizing. Here's a very interesting link to a page that describes how to unionize a workplace: http://incolor.inebraska.com/uswa286/howtounionize.html.

I hope you will post this and get people thinking about it.

Thanks

SORA Risk Assessment Guidelines Strictly Construed

In People v Aldrich (2008 NY Slip Op 08916 [4th Dept 11/14/08])the Court lowered a defendant;s risk level upon concluding that the lower court had incorrectly assessed 30 points. First, the Court held "that the court erred in assessing 25 points for attempted sexual intercourse because there was no evidence of actual sexual intercourse between defendant and the victim as required to assess points under the category of 'Sexual contact with victim.'" Additionally, it was error for the court to assess 5 points under the category of "Release with supervision" where the defendant was released into the community under the supervision of "a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" should not be assessed any points for release under supervision.

When Can A One On One Killing Support A Depraved Indifference Murder Conviction?

The Court of Appeals has held that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances" (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear.

In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one on one beating where the decedent was left beaten, but alive and then died. As explained below, the Court found that the facts were consistent with intentional conduct, and, thus, inconsistent with depraved murder.

The forensic pathologist testified that the 61-year-old victim died from a subdural hematoma and brain injuries caused by blunt-force trauma that was consistent with being struck by fists. Defendant testified at trial that he had punched the victim in the head several times following an argument over the victim's sexual abuse of defendant 30 years earlier, but defendant further testified that, by the time he left the victim's house, he and the victim had reconciled and the victim was "fine." The evidence presented by the People at trial establishes that a struggle had occurred, there were blood spatters in the bathroom and a significant pool of blood on the kitchen floor, and the police found the victim's body face down in a small pool of blood on the living room floor, between the couch and a coffee table. We conclude that the evidence does not support the conclusion that the victim's death was caused by abandoning a helpless and vulnerable individual in circumstances in which he or she is likely to die (citations omitted), nor was there evidence of "torture or a brutal, prolonged . . . course of conduct against a particularly vulnerable victim" (citations omitted). "Whether he intended to kill [the victim] or merely to cause [him] serious injury——and either of these findings, supported by sufficient evidence, might have been properly made by the jury——defendant's actions in no way reflected a depraved indifference to [the victim's] fate" (People v Suarez, 6 NY3d at 216).

On the same day, in People v Jeffries (2008 NY Slip Op 08799 [4th Dept 11/14/08]) a different panel of the Fourth Department (with two of the same judges) held that proof that a defendant lifted a baby and threw her head first into the floor of the porch, causing severe head injuries that resulted in the child's death is legally sufficient to support the conviction for depraved murder. The Court rejected Jeffries' argument that the evidence establishes his manifest intent to kill or to cause serious physical injury and thus fails to establish the culpable mental state for depraved indifference murder. "Rather, the evidence establishes that defendant acted in a fit of rage directed at the child's mother, and the jury could have reasonably inferred that, when he threw the child, 'defendant consciously disregarded the risk of serious injury or death to the child, i.e., that he acted recklessly' (People v Jamison, 45 AD3d 1438, 1439, lv denied 10 NY3d 766)".

Thus the Court held that throwing a baby to the ground, causing massive and fatal injuries, is consistent with reckless conduct, but beating an adult and leaving him injured and bleeding is not.

When Is a Win Not a Win?

In People v Backus (2008 NY Slip Op 08772 [4th Dept 11/14/2008)] the defendant won on his claim that the consecutive sentence imposed was illegal. However, a panel of the Fourth Department divided 3-2 as to the appropriate remedy, with the majority holding that on remitter of the matter to County Court to resentence defendant the court should "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety." Not so good for Mr. Backus.

Specifically, Backus appealed from a judgment convicting him, upon his plea of guilty, of two counts of vehicular assault in the second degree (Penal Law § 120.03 [1]) and one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), and sentencing him to two one-year concurrent definite terms for vehicular assault, and a one-year definite term for driving while intoxicated, to be served consecutively. Since the offense of driving while intoxicated is a material element of the offense of vehicular assault in the second degree and thus the sentence was illegal insofar as County Court imposed consecutive sentences. As set forth below the two dissenting Justices would have corrected the illegality by ordering the sentences to run concurrently:

As noted by the majority, the sentence in this case was imposed pursuant to a plea agreement, but we have in the past modified a judgment on the ground that the bargained-for sentence was illegal because consecutive sentences were not permissible and have directed that the sentences run concurrently (see People v Taylor, 197 AD2d 858). There is no sentence that the court could impose here that would result in the bargained-for sentence, i.e., two one-year definite terms of imprisonment. Defendant has already served a one-year definite term and, "when the court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced" (CPL 430.10). Although it is implicit in CPL 430.10 that a court has the power to correct an illegal sentence even if the defendant has begun serving it, a court may not alter a sentence that "is in accordance with law" once it is being served (id.; see People v Carpenter, 19 AD3d 730, 732, lv denied 5 NY3d 804). In our view, the illegality of the sentence was in directing the one-year definite sentence for driving while intoxicated to run consecutively to the one-year concurrent definite sentences for vehicular assault (see People v Davis, 12 AD3d 237, 238). That defect is corrected by directing that the sentences run concurrently (see id.).

Disclosure After Two Years Is Not A Prompt Outcry

What constitutes a prompt outcry permitting the admission of hearsayis a relative concept dependent on the facts. In People v Workman (2008 NY Slip Op 08801 [4th Dept 11/18/08]) the Court held that the trial court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch as "evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place" (People v McDaniel, 81 NY2d 10, 16). The Court held that

the victim's disclosure in this case was not prompt. As noted, the victim made the disclosure two years after the last incident of abuse, and the record establishes that she had been living away from defendant for a period of time before making the disclosure and had not received any threats that prevented her from disclosing the abuse.

This erroneous admission was held to be harmless because his testimony mirrored evidence [that was] disclosed to the jury without objection.

On a brighter note for Mr. Workman, the Court, sua sponte, as a matter of discretion in the interest of justice, concluded that the evidence was legally insufficient to support the conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75 (1) (a). That Penal Law section requires evidence that, over at least a three-month period, defendant engaged "in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child [*2]less than eleven years old . . . ." The Court explained that there was no evidence that defendant engaged in any act other than forcible touching before the victim was 11 years old and that the conviction on that count, thus, must be reversed.

Vindictiveness In Sentencing After Retrial

In People v Young(94 NY2d 171) the defendant had originally received an aggregate sentence of 45 years to life, including a sentence of 2-4 years on a count of criminal possession of stolen property. On retrial he was acquitted of a all counts other than the stolen property charge for which he was sentenced, as a persistent felon, to 25 years to life. This increase from 2-4 years to 25 years to life was held not to be presumptively vindictive.

The Young Court held that in determining whether the presumption of vindictiveness applies to a sentence imposed after a retrial,where a defendant receives a lesser over-all sentence following retrial, but a greater sentence on an individual count

the presumption arises only if the circumstances evince a reasonable likelihood that the greater sentence on the individual count was the result of vindictiveness (citations omitted). While trial courts in New York are required to impose discrete sentences for each individual count (see, CPL 380.20), we cannot ignore the reality that, in cases involving multiple counts, trial courts may view the individual sentences as part of an integrated whole. A trial court fashions its sentence on a “delicate balancing” of factors, including the defendant's background, criminal history and prospects for rehabilitation, in order to achieve a sentence that is appropriate both for the defendant and for the specific crimes of which the defendant was convicted(Citation omitted. Where, as here, a trial court adjusts the original sentence after retrial in order to reflect that balance, a presumption of vindictiveness will not arise.

Citing Young, the Appellate Division, Fourth Department, in People v Rogers (2008 NY Slip Op 08827 [4th Dept 11/14/08], found that the presumption of vindictiveness applied under facts very similar to those in Young.

Following his first trial, Mr. Rogers was sentenced to a determinate term of imprisonment of 20 years on the robbery count and an indeterminate term of imprisonment of 20 years to life on the murder count, but he was sentenced to a determinate term of imprisonment of 25 years on the robbery count following the retrial. The Court held that

"The threshold issue in evaluating whether a resentence is vindictive is whether the resentence is more severe than that originally imposed" (People v Cahill, 46 AD3d 1455, 1456; see generally People v Young, 94 NY2d 171, 176-177, rearg denied 94 NY2d 876; People v Van Pelt, 76 NY2d 156, 159-160), and a determinate sentence of 25 years is of course more severe than one of 20 years. Other factors that give rise to a presumption of vindictiveness are that the court imposed a greater sentence following the retrial despite the absence of any new information concerning defendant (see Van Pelt, 76 NY2d at 161), and, although defendant was acquitted of the murder count, the court stated at sentencing that it "felt constrained to impose the sentence because a death was involved." We further conclude that "[t]he record is devoid of any objective information sufficient to rebut the presumption of vindictiveness that arose from the court's imposition of a sentence greater than that imposed after the initial conviction" (People v Jenkins, 38 AD3d 566, 567-568, lv denied 8 NY3d 986).

It is difficult to discern which facts distinguish Rogers from Young.

Court of Appeals revised 22 NYCRR part 500

On October 16, 2008, the Court of Appeals revised 22 NYCRR part 500 (Court of Appeals Rules of Practice) effective November 5, 2008, or as soon thereafter as section 52 of the Judiciary Law is complied with.

This commentary on the revisions to 22 NYCRR part 500 (Court ofAppeals Rules of Practice) discusses the rule changes that affect civil practice before the Court.

500.1 General Requirements
This rule was amended to clarify the definition of "papers filed" (§ 501[b]), andto separately highlight information that shall be provided for all filings (§§501[d]-[h]). The word “record” was added to § 501[b]).

§ 500.1. General Requirements
(a) All papers shall comply with applicable statutes and rules, particularly thesigning requirement of 22 NYCRR 130-1.1-a.
(b) Papers filed. "Papers filed" means briefs, papers submitted pursuant to sections 500.10 and 500.11 of this Part, motion papers, records and appendices (hereinafter "papers filed").
(c) Method of reproduction. All papers filed may be reproduced by any method that produces a permanent, legible, black image on white paper. Reproduction on both sides of the paper is encouraged.
(d) Designation of original. Where this Part requires the filing of multiple copies of papers, the parties shall identify on its cover the original document filed.
(e) Proof of service. The original affidavit of service shall be affixed to theinside of the back cover of the original of each paper filed.
(f) Disclosure statement. All papers filed by or on behalf of a corporation orother business entity shall contain a disclosure statement listing all itsparents, subsidiaries and affiliates, or state that no such parents, subsidiariesand affiliates exist.
(g) Citation form. Where New York authorities are cited in any submissions, New York Official Law Report citations shall be included, if available.
(h) Inclusion of decisions. Copies of decisions that are not officiallypublished, or are not otherwise readily available, shall be included in thesubmission in which such decisions are cited.
(i) Paper quality, size and binding. Paper shall be opaque, unglazed, white and eleven by eight and one-half inches. Briefs, appendices, records and motionpapers shall be bound on the left side in a manner that keeps all pages securelytogether, without plastic covers or any metal fasteners or similar hard materialthat protrudes or presents a bulky surface or sharp edge.
(j) Computer-generated papers filed. Papers filed prepared on a computer shall be printed in either a serifed, proportionally spaced typeface, such as Times Roman, or a serifed monospaced typeface, such as Courier. Narrow or condensed typefaces and condensed font spacing shall not be used. Except in headings, words shall not be in bold type or type consisting of all capital letters.
(1) Papers filed using a proportionally-spaced typeface. The body of any papersfiled using a proportionally-spaced typeface shall be printed in 14- point type.Footnotes shall be printed in type of no less than 12 points.
(2) Papers filed using a monospaced typeface. The body of any papers filed usinga monospaced typeface shall be printed in 12-point type containing no more than 10and one-half characters per inch. Footnotes shall be printed in type of no lessthan 10 points.
(k) Typewritten papers filed. Typewritten papers filed shall be neatly prepared in legible type no smaller than elite and in a pitch of no more than twelve characters per inch. The original, ribbon typescript of any papers filed shall besigned and filed as the original required by this Part. Carbon copies will not beaccepted.
(l) Margins, line spacing and page numbering of computer-generated and typewritten papers filed. Computer-generated and typewritten papers filed shallhave margins of one inch on all sides of the page. Text shall be double-spaced,but quotations more than two lines long may be indented and single-spaced.Headings and footnotes may be single-spaced. Pages shall be consecutivelynumbered in the center of the bottom margin of each page.
(m) Handwritten papers. Self-represented litigants may serve and filehandwritten papers. Such papers shall be neatly prepared in cursive script orhand printing in black ink. Pages shall be consecutively numbered in the centerof the bottom margin of each page. The filing of handwritten papers is notencouraged. The clerk of the Court may reject illegible papers.
(n) Filing of papers. All papers filed shall be addressed to the clerk ofthe Court at 20 Eagle Street, Albany, New York 12207, not to a Judge or Judges of the Court, and shall be served on each other party in accordance with the requirements of this Part. Submissions shall not be filed by facsimile transmission or electronic mail, except when requested by the clerk of the Court.
(o) Acknowledgment of receipt of papers. A request for an acknowledgment of receipt of papers shall be accompanied by the papers filed and a self-addressed, postage pre-paid postcard or envelope. Parties proceeding as poor persons or requesting poor person relief shall comply with this requirement if acknowledgment of receipt of papers is desired.
(p) Nonconforming papers. The clerk of the Court may reject papers thatdo not conform to the requirements of this Part.

500.2. Companion Filings on Compact Disk, Read-Only Memory (CD-ROM)
Only grammatical changes were made to this section.
§ 500.2. Companion Filings on Compact Disk, Read-Only Memory (CD-ROM)
(a) The Court allows the submission of briefs, records or appendices on compactdisk, read-only memory (CD-ROM) as companions to the requisite number ofprinted briefs, records and appendices filed and served in accordance with thisPart if all parties have consented to the filing of the companion CD-ROM brief andrecord or appendix. The Court, by order on motion of any party or on its ownmotion, may require such filing by a party or amicus.
(b) The companion CD-ROM brief, record or appendix shall comply with the currenttechnical specifications available from the clerk's office.
(c) The companion CD-ROM brief, record or appendix shall be identical in contentand format (including page numbering) to the printed version, except that eachalso shall be word-searchable and shall provide electronic links (hyperlinks) tothe complete text of any authorities cited therein, and to all documents or othermaterial constituting the record on appeal. The disk and container shall belabeled to indicate the title of the case and the documents reproduced on thedisk.
(d) Unless the Court requires a greater number, 10 disks or sets of disks shallbe filed, with (1) proof of service of at least one disk or set on each other party; and (2) a copy of the parties' stipulation permitting, or the Court's order directing, such filing.
(e) Unless the Court requires otherwise, appellant's filing and respondent'sfiling, or a joint filing by appellant and respondent, are due 10 days after thefinal due date for filing appellant's reply brief (see section 500.12[d] of thisPart).
500.3. Fees
Only grammatical changes were made to this section.
§ 500.3. Fees
(a) Upon the filing of record material in a civil appeal pursuant to section500.11, 500.12 or 500.26(a) of this Part, appellant shall provide the clerk of theCourt the fee in the amount specified in CPLR 8022 in the form of an attorney'scheck, certified check, cashier's check or money order payable to "State of NewYork, Court of Appeals" unless:
(1) appellant demonstrates exemption from the fee requirements by statute orother authority;
(2) other payment arrangements have been made with the clerk of the Court;
(3) the appeal is accompanied by a motion requesting poor person relief or amotion requesting relief from payment of the filing fee; or
(4) appellant in the Court of Appeals provides a copy of an order issued by anycourt in the action or proceeding to which the appeal relates granting that partypoor person relief, together with a sworn affidavit that the same financialcircumstances exist at the time of filing in the Court of Appeals as when theorder granting poor person relief was issued.
(b) Upon the filing of each motion or cross motion in a civil case pursuant tosections 500.21 through 500.24 or 500.26(b) of this Part, movant shall provide the clerk of the Court with the fee in the amount specified in CPLR 8022in the form of an attorney's check, certified check, cashier's check or moneyorder payable to "State of New York, Court of Appeals"Appeals" unless:
(1) movant demonstrates exemption from the fee requirements by statute or otherauthority;
(2) other payment arrangements have been made with the clerk of the Court;
(3) the motion or cross motion is accompanied by a motion requesting poor personrelief or a motion requesting relief from payment of the filing fee; or
(4) movant in the Court of Appeals provides a copy of an order issued by anycourt in the action or proceeding to which the motion relates granting that partypoor person relief, together with a sworn affidavit that the same financialcircumstances exist at the time of filing in the Court of Appeals as when theorder granting poor person relief was issued.
(c) Except as provided in subsections (a) or (b) above or where otherwisespecifically required by law or by the Court, no fees shall be charged by theclerk of the Court.
500.5 Sealed Documents and Confidential Material
Subsection (e) was added to address the filing of confidential matter subject toa statutory proscription against publication. The title of the Section was changed to add the words “confidential material”.
§ 500.5. Sealed Documents and Confidential Material
(a) Documents under seal are not available for public viewing.
(b) Any papers sealed by a court below or otherwise required by statute to besealed shall be sealed in the Court of Appeals.
(c) Any party to an appeal or motion may request that papers not sealed below besealed in this Court. Such requests shall be by an original and one copy of amotion pursuant to section 500.21 of this Part, with proof of service of one copyon each other party.
(d) Documents and transcripts ordered sealed by the Court of Appeals or a courtbelow shall be reproduced in separate volumes of the record on appeal. Each suchvolume shall be clearly identified on the cover as containing sealed material.
(e) To the extent possible, papers filed shall not contain confidential material subject to a statutory proscription against publication. Where such material must be included, the cover of the paper filed shall clearly indicate that the documentcontains confidential material.

500.6 Developments Affecting Appeals, Certified Questions, Motions and CriminalLeave Applications
This rule was expanded to require counsel on an appeal to timely inform theclerk's office of any changes in the status of related litigation originallyreflected on appellant's preliminary appeal statement, and of related litigationinitiated after that statement was filed in this Court.

§ 500.6. Developments Affecting Appeals, Certified Questions, Motions and CriminalLeave Applications
Counsel shall timely inform the clerk's office and each other party by letter ofall developments affecting appeals, section 500.27 certified questions, motionsand criminal leave applications pending in this Court, including contemplated andactual settlements, circumstances or facts that could render the matter moot andpertinent developments in applicable case law, statutes and regulations. For appeals, counsel shall also timely inform the clerk's office and each other party by letter of any changes in the status of any related litigation reported on the appellant's preliminary appeal statement or of any related litigation commenced after the filing of appellant's preliminary appeal statement. Such letters shall contain proof of service on each other party.

500.7. Post-Briefing, Post-Submission and Post-Argument Communications
Only Grammatical changes were made to this section
§500.7. Post-Briefing, Post-Submission and Post-Argument Communications
Except for communications providing the information required by section 500.6 ofthis Part or those specifically requested by the Court, post-briefing,post-submission and post-argument written communications to the Court are notfavored, and shall be returned to the sender unless accepted by the clerk of theCourt following a written request with a copy of the proposed submission and proofof service of one copy on each other party.

500.8. Withdrawal of Appeal, Motion or Criminal Leave Application
Only grammatical changes were made to this section
§ 500.8. Withdrawal of Appeal, Motion or Criminal Leave Application
(a) Appeals.
(1) Before argument or submission, an appeal shall be marked withdrawn uponreceipt by the clerk of the Court of a stipulation of withdrawal signed by counselfor all parties <<+to the appeal+>> and by all self-represented litigants and, incriminal appeals, additionally by defendant.
(2) After argument or submission, a request to withdraw an appeal shall besupported by a stipulation of withdrawal signed by counsel for all parties to theappeal and by all self-represented litigants and, in criminal appeals, additionally by defendant. The request shall be submitted to the Court for determination.
(b) Motions.
(1) Before its return date, a motion shall be marked withdrawn upon receipt bythe clerk of the Court of a written notice of withdrawal signed by counsel for themoving party, with proof of service of one copy on each other party.
(2) After the return date, a request to withdraw a motion shall be supported by astipulation of withdrawal signed by counsel for all parties to the motion and byall self-represented litigants. The request shall be submitted to the Court for determination.
(c) Criminal Leave Applications. A request to withdraw an application shall bein writing and, if made on behalf of a defendant, shall also be signed bydefendant. The request shall contain an indication of service of one copy uponall parties and, if the request is made by defendant personally, proof of serviceupon defense counsel, if defendant is represented. The request shall be submittedto the assigned Judge for determination.
500.9. Preliminary Appeal Statement
Only grammatical changes were made to this section.

§ 500.9. Preliminary Appeal Statement
(a) Within 10 days after an appeal is taken by (1) filing a notice of appeal inthe place and manner required by CPLR 5515, (2) entry of an order granting amotion for leave to appeal in a civil case, or (3) issuance of a certificategranting leave to appeal in a criminal case, appellant shall file withthe clerk of the Court an original and one copy of a preliminary appeal statementon the form prescribed by the Court, with the required attachments and proof ofservice of one copy on each other party. No fee is required at the time of filingthe preliminary appeal statement.
(b) Where a party asserts that a statute is unconstitutional, appellant shallgive written notice to the Attorney General before filing the preliminary appealstatement, and a copy of the notification shall be attached to the preliminaryappeal statement. The notification and a copy of the preliminary appeal statementshall be sent to the Solicitor General, Department of Law, The Capitol, Albany,New York 12224.
(c) After review of the preliminary appeal statement, the clerk will notify the parties either that review pursuant to section 500.10 or section 500.11 of this Part shall commence or that the appeal shall proceed in the normal course.

§ 500.10. Examination of Subject Matter Jurisdiction (No changes were made to this section)
500.11 Alternative Procedure for Selected Appeals
Subsections (c) (3) and (d) were changed to reflect the addition of §500.1 (f).
Subsection (e) was added to set forth the Court's longstanding practice onalternative review appeals of not permitting appellants to file a reply brief,except where so authorized by the Court or on the Court's own motion.
Former subsection (e) was changed to (f).
Former subsection (h) was added to require counsel to indicate in its 500.11 letter thestatus of any related litigation.
Former subsections (f) was changed to (g) and former subsection (g) was changed to (i).

§ 500.11. Alternative Procedure for Selected Appeals
(a) On its own motion, the Court may review selected appeals by an alternativeprocedure. Such appeals shall be determined on the intermediate appellate courtrecord or appendix and briefs, the writings in the courts below and additionalletter submissions on the merits. The clerk of the Court shall notify all partiesby letter when an appeal has been selected for review pursuant to this section.Appellant may request such review in its preliminary appeal statement. Respondentmay request such review by letter to the clerk of the Court, with proof of serviceof one copy on each other party, within five days after the appeal is taken.
(b) Appeals may be selected for alternative review on the basis of:
(1) questions of discretion, mixed questions of law and fact or affirmed findingsof fact, which are subject to a limited scope of review;
(2) recent, controlling precedent;
(3) narrow issues of law not of statewide importance;
(4) nonpreserved issues of law;
(5) a party's request for such review; or
(6) other appropriate factors.
(c) Appellant's filing. Within 25 days after the date of the clerk of theCourt's letter initiating the alternative review procedure, appellant shall:
(1) file three copies of the intermediate appellate court record or appendix andthree copies of each brief filed by each party in the intermediate appellatecourt. Original exhibits to be relied upon which are not in the record orappendix at the intermediate appellate court shall be filed or, if they are onfile with the clerk of the trial court, subpoenaed to this Court and the Court soadvised by letter. Such exhibits shall be clearly identified and, whereappropriate, their authenticity shall be certified or stipulated to;
(2) file an original and two copies of a letter stating its arguments in supportof appellant's position on the merits. If appellant objects to review pursuant tothis section, the letter shall also explain that position;
(3) include as part of its submission a disclosure statement pursuant to section 500.1(f) of this Part, if necessary;
(4) file proof of service of one copy of its arguments on each other party; and
(5) remit the fee, if any, required by section 500.3(a) of this Part.
(d) Respondent's filing. Within 20 days after service of appellant's submission,respondent shall file an original and two copies of a letter stating its argumentsin support of its position on the merits. If respondent objects to reviewpursuant to this section, the letter shall also explain that position. Respondentshall include in its submission a disclosure statement pursuant to section 500.1(f) of this Part, if necessary, and file proof of service of one copy of its arguments on each other party.
(e) Appellant's reply. A reply is not permitted unless authorized by the Court upon request of the appellant, which shall accompany the proposed filing, or onthe Court's own motion.
(f) Abandonment of arguments. A party shall be deemed to have abandoned any argument made in the intermediate appellate court briefs not addressed or reserved in the written submission to this Court.
(g) Review of subject matter jurisdiction. An appeal selected for reviewpursuant to this section is subject to dismissal on the Court's own motion, shouldit be determined that the Court is without subject matter jurisdiction.
(h) Related litigation. Where necessary, each letter filing shall indicate thestatus of any related litigation as of the date of the letter's filing.
(I ) Termination of alternative procedure. If the Court terminates its review of the appeal pursuant to this section before disposition, the clerk of the Courtwill notify counsel by letter and set a schedule for full briefing of the appeal.
(j) Amicus curiae relief. The Attorney General of the State of New York may file, no later than the filing date set for respondent's submission, an originaland two copies of an amicus curiae submission without leave of the Court, withproof of service of one copy on each party. Any other proposed amicus curiaeshall request amicus curiae relief pursuant to section 500.23(a)(2) of this Part.
500.13 Content and Form of Briefs in Normal Course Appeal
Subsection (a), governing the contents of briefs on normal course appeals, wasexpanded to require that any disclosure statement required by subsection 500.1(f),and an indication of the status of any related litigation, each be included beforethe table of contents in the party's principal brief. The subsection was furtherexpanded to require appellant to include a statement demonstrating the Court'sjurisdiction over the appeal and the reviewability of issues raised on the appeal.
Subsection (b), treating brief covers, was expanded to state that plastic coversshall not be used.

§ 500.13. Content and Form of Briefs in Normal Course Appeals
(a) Content. All briefs shall conform to the requirements of section 500.1 ofthis Part and contain a table of contents, a table of cases and authorities and,if necessary, a disclosure statement pursuant to section 500.1(f) of this Part. Such disclosure statement shall be included before the table of contents in the party's principal brief. Appellant's brief shall include a statement showing that the Court has jurisdiction to entertain the appeal and to review the questions raised, with citations to the pages of the record or appendix where such questions have been preserved for theCourt's review. Respondent's brief may have a supplementary appendix attached to it. The original of each brief shall be signed and dated, shall have theaffidavit of service affixed to the inside of the back cover and shall beidentified on the front cover as the original. Each brief shall indicate thestatus of any related litigation as of the date the brief is completed. Suchstatement shall be included before the table of contents in each party's brief.
(b) Brief covers. Brief covers shall be white and shall contain the caption ofthe case and name, address, telephone number, and facsimile number of counsel orself-represented litigant and the party on whose behalf the brief is submitted,and the date on which the brief was completed. In the upper right corner, thebrief cover shall indicate whether the party proposes to submit the brief withoutoral argument or, if argument time is requested, the amount of time requested andthe name of the person who will present oral argument (see section 500.18 of thisPart). If a time request does not appear on the brief, generally no more than 10minutes will be assigned. The Court will determine the argument time, if any, tobe assigned to each party. Plastic covers shall not be used.

500.14 Records, Appendices and Exhibits in Normal Course Appeals
Subsection (b)(5) was amended to require, as relevant to the appeal, theinclusion of the jury charge. The subsection was further amended to requireinclusion of any testimony, affidavits, jury charge or exhibits cited in the briefof the party filing the appendix.
Subsection (e) was added to require that a reproduced record or appendix containthe statement required by CPLR 5531. Former subsection (e) was relettered subsection (f)

§ 500.14. Records, Appendices and Exhibits in Normal Course Appeals
(a) Record material. Appellant shall supply the Court with record material inone of the following ways:
(1) Appellant may subpoena the original file to this Court from the clerk of thecourt of original instance or other custodian, and submit original exhibits to berelied upon, and supplement these with an original and 24 copies of an appendixconforming to subdivision (b) below, with proof of service of three copies of theappendix on each other party. If appellant is represented by assigned counsel, orhas established indigency, an oral or written request may be made of the clerk ofthis Court to obtain the original file.
(2) Appellant may file with the clerk of the Court one copy of the reproducedrecord used at the court below. This record shall be supplemented by an originaland 24 copies of an appendix conforming to subdivision (b) below, with proof ofservice of three copies of the appendix on each other party.
(3) Appellant may file with the clerk of the Court an original and 24 copies of anew and full record which shall include the record used at the court below, thenotice of appeal or order granting leave to appeal to this Court, the decision andorder appealed from to this Court, and any other decision and order brought up forreview, with proof of service of three copies of the new record on each otherparty.
(b) Appendix. An appendix shall conform to the requirements of CPLR 5528 and5529, and shall be sufficient by itself to permit the Court to review the issuesraised on appeal without resort to the original file (see subsection [a] [1] ofthis section) or reproduced record used at the court below (see subsection [a][2]of this section). The appendix shall include, as relevant to the appeal, thefollowing:
(1) the notice of appeal or order or certificate granting leave to appeal;
(2) the order, judgment or determination appealed from to this Court;
(3) any order, judgment or determination which is the subject of the orderappealed from, or which is otherwise brought up for review;
(4) any decision or opinion relating to the orders set forth in subsections(b)(2) and (3) above; and
(5) the testimony, affidavits, jury charge and written or photographic exhibitsuseful to the determination of the questions raised on appeal or cited in thebrief of the party filing the appendix .
(c) Respondent's appendix. A respondent's brief may include a supplementaryappendix.
(d) Inadequate appendix. When appellant has filed an inadequate appendix,respondent may move to strike the appendix (see section 500.21 of this Part) ormay submit an original and 24 copies of an appendix containing such additionalparts of the record as respondent deems necessary to consider the questionsinvolved, with proof of service of three copies of the appendix on each otherparty. The Court may direct appellant to supplement the appendix with additionalparts of the record it deems necessary to consider the questions involved.
(e) Description of action or proceeding. The reproduced record and additional papers or the appendix shall contain the statement required by CPLR 5531.
(f) Correctness of the record. The correctness of the reproduced record or the appendix and additional papers shall be authenticated pursuant to CPLR 2105 or stipulated to pursuant to CPLR 5532.

500.15 Extensions of Time
This section was amended by deleting the requirement that requests for extensionsof time for filing papers on appeal be made no earlier than 20 days before thefiling due date set by the clerk's office or otherwise prescribed by the Rules.The change was prompted by the currency of the Court's calendar and the Court'sexperience that the requirement no longer served a useful purpose in managingappeals.

§ 500.15. Extensions of Time
The clerk of the Court is authorized to grant, for good cause shown, a reasonableextension of time for filing papers on an appeal. A request for an extension maybe made by telephone call to the clerk's office. The party requesting an extension shall advise the clerk of the Court of the position of each other party with regard to the request. A party granted an extension shall file a confirmation letter, with proof of service of one copy on each other party, unless the clerk's office has notified allparties in writing of the determination of the request.
500.16 Failure to Proceed or File Papers
Subsection (c) was revised to clarify that a party can seek judicial review ofdismissal and preclusion orders by motion on notice.
§ 500.16. Failure to Proceed or File Papers
(a) Dismissal of appeal. If appellant has not filed and served the papersrequired by section 500.11, 500.12 or 500.26(a) of this Part within the time setby the clerk's office or otherwise prescribed by this Part, the clerk of the Courtshall enter an order dismissing the appeal.
(b) Preclusion. If respondent has not filed and served the papers required bysection 500.11, 500.12 or 500.26(a) of this Part within the time set by theclerk's office or otherwise prescribed by this Part, the clerk of the Court shallenter an order precluding respondent's filing.
(c) Judicial review. A party may seek judicial review of dismissal andpreclusion orders entered pursuant to subsections (a) and (b) above by motion onnotice in accordance with section 500.21 of this Part.
500.17 Calendar
Grammatical changes were made to this section and the requirement of a detailed statement of the reasons for the requested adjournment was added to subsection (d).
§ 500.17. Calendar
(a) Notification of argument time and date. When the calendar has been prepared,the clerk of the Court shall advise counsel by letter of the date and timeassigned for oral argument.
(b) Calendar preferences. A party seeking a preference shall address a letter tothe clerk of the Court, with proof of service of one copy on each other party.The letter shall state why a preference is needed, why an alternativeremedy, such as review pursuant to section 500.11 of this Part or submission without argument, is not appropriate, and opposing counsel's position on the request.
(c) Notification of unavailability. Counsel have a continuing obligation tonotify the clerk's office of days of known or possible unavailability for oralargument during the Court's scheduled Albany sessions.
(d) Adjournments. Requests for adjournment of a calendared appeal are notfavored. A party seeking an adjournment shall address a letter to the clerk ofthe Court, with proof of service of one copy on each other party. The lettershall state in detail why the adjournment is necessary, and why submission on the brief filed or having substitute counsel argue are not viable alternatives, and opposing counsel's position on the request.

§ 500.18. Oral Argument (No changes were made to this section.)
§ 500.19. Remittitur (No changes were made to this section.)
§ 500.20 Criminal Leave Applications. ( Changes to this section are not discussed in this commentary.)
500.21 Motions--General Procedures
Section (f) was changed to reflect the change in section 500.11, with regard to the disclosure statement pursuant to section 500.1(f).
Section (h) was added to clarify the Court's practice of automatically filing andentering orders issued on motions. The section further advises that the Court hasno procedure for filing additional papers, such as proof of service of a copy ofthe order with notice of entry.

§ 500.21. Motions--General Procedures
(a) Return date. Regardless whether the Court is in session, motions shall bereturnable on a Monday or, if Monday is a legal holiday, the first business day ofthe week unless otherwise provided by statute, order to show cause or stipulationso ordered by a Judge of the Court. Motions shall be submitted without oralargument, unless the Court directs otherwise. No adjournments shall be permittedother than in those limited instances provided by statute (CPLR 321[c] and 1022).
(b) Notice and service. Movant shall serve a notice of motion and supportingpapers on sufficient notice to each other party, as set forth in the CPLR andbelow. In computing the notice period, the date of service shall not be included.
(1) When movant's papers are personally served, movant shall give at least eightdays' notice (CPLR 2214[b]).
(2) When movant's papers are served by regular mail, movant shall give at least13 days' notice (CPLR 2103[b][2]).
(3) When movant's papers are served by overnight delivery service, movant shallgive at least nine days' notice (CPLR 2103[b][6]).
(4) When movant's papers are served by facsimile transmission, movant shallcomply with CPLR 2103(b)(5), and give at least eight days' notice.
(c) Filing. Unless otherwise permitted by the Court or clerk of the Court,movant shall file its papers, with proof of service on each other party of therequired number of copies, at Court of Appeals Hall no later than noon on theFriday preceding the return date. On or before the return date of the motion,respondent may file papers in opposition to the motion, with proof of service oneach other party of the required number of copies. Submissions shall not be filedby facsimile transmission or electronic mail, except when requested by the clerkof the Court. The Court's motion practice does not permit the filing of replybriefs and memoranda. A request for permission to file papers after the returndate of the motion is governed by section 500.7 of this Part.
(d) Number of required copies. Except in cases of indigency, where subsection(g) below applies, the number of copies required to be filed is as follows:
(1) Motions for permission to appeal in civil cases. Movant shall file anoriginal and six copies of its papers, with proof of service of two copies on eachother party. Respondent may file an original and six copies of papers inopposition to the motion, with proof of service of two copies on each other party.
(2) Motions for reargument of appeals, reargument of motions for permission toappeal and reargument of decisions on certified questions. Movant shall file anoriginal and six copies of its papers, with proof of service of two copies on eachother party. Respondent may file an original and six copies of papers inopposition to the motion, with proof of service of two copies on each other party.
(3) Other motions. For motions other than those addressed in subsections (d)(1)and (2) above, movant shall file an original and one copy of its papers, withproof of service of one copy on each other party. Respondent may file an originaland one copy of papers in opposition to the motion, with proof of service of onecopy on each other party.
(e) Fee required. Movant shall remit the fee, if any, required by section500.3(b) of this Part with each motion and cross motion filed.
(f) Form of papers. Movant's papers and opposing papers shall comply in formwith section 500.1 of this Part. The papers shall include a disclosure statementpursuant to section 500.1(f) of this Part, if required.
(g) Proof of indigency. Any motion may be made on one set of papers, with proofof service of one copy on each other party, where:
(1) the motion requests poor person relief and contains the information requiredby CPLR 1101(a), or
(2) movant provides a copy of an order, issued by any court in the action orproceeding to which the motion relates, granting that party poor person relief,together with a sworn affidavit that the same financial circumstances exist at thetime of filing in the Court of Appeals as when the order granting poor personrelief was issued.
(h) Orders determining motions. The original of an order of the Court of Appealsissued on a motion decision is filed in the clerk's office automatically by theclerk of the Court and is entered on the date of decision. There is no procedurefor filing additional papers, such as proof of service of a copy of the order with notice of entry upon adverse parties. If necessary, such papers may be filed inthe office where papers submitted to the court of original instance are filed.
500.22
Subdivision (a) was clarified to make it clear that the movant need not file an original and six copies of its papers if permitted to proceed pursuant to section 500.21(g)Subdivision (b) (5) was changed to refer to 500.11 (f) with regard to the disclosure statement.

§ 500.22. Motions for Permission to Appeal in Civil Cases
(a) Filing and notice. Movant shall file an original and six copies of itspapers, unless permitted to proceed pursuant to section 500.21(g), with proof of service of two copies on each other party. The motion shall be noticed for areturn date in compliance with CPLR 5516 and section 500.21(b) of this Part.
(b) Content. Movant's papers shall be a single document, bound on the left, andshall contain in the order here indicated:
(1) A notice of motion (see CPLR 2214).
(2) A statement of the procedural history of the case, including a showing of thetimeliness of the motion.
(i) If no prior motion for leave to appeal to the Court of Appeals was filed atthe Appellate Division, movant's papers to this Court shall demonstrate timelinessby stating the date movant was served (see CPLR 2103[b]) with the order orjudgment sought to be appealed from, with notice of entry.
(ii) If a prior motion for leave to appeal to the Court of Appeals was filed atthe Appellate Division, movant's papers filed in this Court shall demonstrate thatthe timeliness chain is intact by stating:
(a) the date movant was served with the order or judgment sought to be appealedfrom, with notice of entry,
(b) the date movant served the notice of motion addressed to the AppellateDivision upon each other party, and
(c) the date movant was served with the Appellate Division order denying leaveto appeal with notice of entry.
(3) A showing that this Court has jurisdiction of the motion and of the proposedappeal, including that the order or judgment sought to be appealed from is a finaldetermination or comes within the special class of nonfinal orders appealable bypermission of the Court of Appeals (see CPLR 5602[a][2]).
(4) A concise statement of the questions presented for review and why thequestions presented merit review by this Court, such as that the issues are novelor of public importance, present a conflict with prior decisions of this Court, orinvolve a conflict among the departments of the Appellate Division. Movant shallidentify the particular portions of the record where the questions sought to bereviewed are raised and preserved.
(5) A disclosure statement pursuant to section 500.1(f) of this Part, ifrequired.
(6) Copies of the order or judgment sought to be appealed from with notice ofentry, as well as copies of all relevant orders, opinions or memoranda rendered inthe courts below. The papers shall state if no opinion was rendered.
(c) Additional documents. Movant shall file with its papers one copy of therecord below, or appendix if the appendix method was used in the court below, andone copy of the briefs filed below by each of the parties.
(d) Opposing papers. Respondent may file an original and six copies of papers inopposition to the motion, with proof of service of two copies on each other party.The opposing papers shall state concisely respondent's argument for dismissal ordenial of the motion.

500.23 Amicus Curiae Relief (Changes to this section are not discussed in this commentary.)


500.24. Motions for Reargument of Appeals, Motions and Decisions on CertifiedQuestions
Subsection (a) was changed to add 500.21(g). Only grammatical changes were made to the rest of the section.
§500.24. Motions for Reargument of Appeals, Motions and Decisions on CertifiedQuestions
(a) Filing and notice. Movant shall file an original and six copies of itspapers, with proof of service of two copies on each other party. An original andone copy of a motion for reargument of a motion may be served and filed if filingof an original and one copy of papers was allowed on the underlying motionpursuant to section 500.21(d)(3) or (g).
(b) Timeliness. Movant shall serve the notice of motion not later than 30 daysafter the appeal, certified question or motion sought to be reargued has beendecided, unless otherwise permitted by the Court.
(c) Content. The motion shall state briefly the ground upon which reargument issought and the points claimed to have been overlooked or misapprehended by theCourt, with proper reference to the particular portions of the record and to theauthorities relied upon.
(d) New matters. The motion shall not be based on the assertion for the firsttime of new arguments or points of law, except for extraordinary and compellingreasons.
(e) Limitation on motions. The Court shall entertain only one motion per partyfor reargument of a specific appeal, motion or certified question decision.
(f) Opposing papers. Except on those motions described in section 500.21(d)(3),respondent may file an original and six copies of papers in opposition to themotion, with proof of service of two copies on each other party. The opposingpapers shall briefly state respondent's argument for dismissal or denial of themotion.
§ 500.25. Emergency Matters; Orders to Show Cause ( There were no changes to this section.)
§ 500.26. Primary Election Session Procedures (Changes not discussed in this commentary)
§ 500.27. Discretionary Proceedings to Review Certified Questions from FederalCourts and Other Courts of Last Resort (Changes not discussed in this commentary)