New York Law as a Source of Rights

Last month,in People v Weaver (5/12/09)(discussed here, the Court of Appeals held that the New York Constitution requires that a warrant issued upon probable cause be issued before the police can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Thus New Yorkers need not worry that police without warrants or cause could attach such devices to their vehicles in New York and record the vehicles' minute by minute location.

In People v Buchanan (6/30/09) the Court again found that the New York Constitution provides protections that have not been clearly found under the United State Constitution.

The issue in Buchanan had appeared to be whether the use of a non-visible stun belt on a defendant in a murder trial because it was the judge's policy to use such devices where a defendant is charged with a serious crime deprived deprived the defendant of due process of law. The defendant relied on Deck v Missouri (544 US 622, 626 [2005]), in which the United States Supreme Court held that the Due Process Clause prohibits a state from confining a defendant in "visible shackles" during a criminal trial, unless a "special need," based on facts specific to the case, is shown. The People argued that Deck is distinguishable because the stun belt here was not visible to the jury.

The Court held that it did not need to resolve the applicability of Deck because

"we need not reach the constitutional issue, however, for we conclude as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason."

The court adopted a "rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint. A formal hearing may not be necessary, but the trial court must conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint." The Court did not state is this rule is of constitutional nature. Nor did it state the nature of rule making authority other than the constitution.

Regardless, the message for counsel should be clear - in addition to all other arguments, preserve claims as being based in rights under New York law.

In Case You Missed It.....

Above the Law did a story on our friend DiscoverReady, yesterday.



"The Charlotte Observer reports that a legal services firm is poised to hire 100 Charlotte based attorneys:



Unfortunately, we're talking about document review attorneys:



DiscoverReady, which analyzes e-mails and electronic documents for law firms and corporate legal departments, is opening the office on Trade Street uptown in mid-June. The company has already hired about two dozen workers and will hire others in waves throughout the year, said Jim Wagner Jr., DiscoverReady's chief executive officer."



Surely, truly awful jobs are better than no jobs, but several commenters point out just how awful working for DiscoverReady can actually be:



"This is the temp job from hell. DiscoverReady and Shawn Treadwell at Strategic Legal repeatedly lied to the contract attorneys about the job, assuring us that we would start working the next day, then telling us at the last minute that there would be no work tomorrow. I quit the project, and still haven't been paid a month later. You're better off being unemployed."



"Don't get your hopes up. After being out of work for months following law school, I signed on with DiscoverReady to do doc review. I worked for 4 days, was told I did a good job, then never heard from them again. The pay rate is good, but not if you work 4 days every 6 months. I got a real job finally and then got an email asking if I was interested in working again, 6 months after having worked. Didn't bother replying."



"I have to add that when I asked the project manager at DiscoverReady (Andrew Mayer) if I could print out the timesheet that Strategic Legal had emailed me, he told me that I couldn't use their printers, but if I needed to print something, I could go to the Kinko's down the street."



DiscoverReady temps jobs are a horrible way to make a living, but an excellent way for the government and law school industry to mask how truly staggering and dismal the job market really is.



http://abovethelaw.com/2009/06/law_jobs_in_charlotte_kind_of.php

State Farm v. Langan

In State Farm Mut. Auto. Ins. Co. v. Langan, 55 A.D.3d 281 (2d Dep't, 2008), the Appellate Division, 2d Department, held that, regarding no-fault benefits, a loss is "accidental" where the incident is "unexpected, unusual and unforeseen" from the point of view of the injured person. Generally speaking, this struck a blow against insurers who seek to disclaim coverage where only one person intentionally caused the loss. Thus, for example, where insurers previously sought to disclaim no-fault coverage for an occupant of a vehicle that was intentionally struck (but where said occupant played no role in the scheme), Langan provides that such a disclaimer would be invalid. The disclaimer would only be appropriate where the insurer can demonstrate that the injured person in question was a party to the intentional conduct.

It thus bears noting that, on June 11, 2009, the Court of Appeals dismissed State Farm's further appeal in that matter. See State Farm Mut. Auto. Ins. Co. v. John Robert Langan,etc., 2009 NYSlipOp 74754 (Ct. of App., 2009), which dismissed the appeal sua sponte on the basis that the App. Div.'s order "does not finally determine the action within the meaning of the Constitution." As a result, the App. Div.'s holding will apparently remain settled law (at least in the 2d Dep't) for the foreseeable future.

Practitioners citing to Langan in briefs may consider noting in the citation that the appeal was dismissed (e.g., State Farm Mut. Auto. Ins. Co. v. Langan, 55 A.D.3d 281 (2d Dep't, 2008), app. dismissed, 2009 NYSlipOp 74754 (Ct. of App., 2009)).

Labaton

"Dear Tom,

I emailed the below complaint to the powers that be at Labaton at 140 Broadway on Friday, and by Monday there was a big change in attitude at 225 Varick Street, the offsite location where we work. No more having to go search for a staff attorney to input your time four times a day. In fact, now you write your time yourself for when you arrive and depart for the day; you do not have to notate a lunch break on the timesheet. Staff Attorney is trying not to be an animal, but it's hard for him not to act like a dick. Stay tuned. Hold these people accountable if they mistreat you.

Thanks for making your blog available so that we can fight back against these abuses.


From: @rocketmail.com>
Subject: Countrywide Project
To: @labaton.com, @labaton.com, @labaton.com
Date: Friday, June 19, 2009, 2:30 AM


I believe you should know what is going on at 225 Varick Street. I am an experienced contract attorney and I have worked under some horrible conditions in my time, but your treatment of your so-called short-term attorneys ranks as one of the worst experiences I have had in my career. On any project that I have worked on, if you have to sign in and out when you arrive and leave for the day and notate breaks as well, you do so yourself. However at Varick Street, I have to locate one of your two staff attorneys who could be in any of the four rooms in order to inform them when I arrive in the morning, when I leave at night or when I take a break for lunch, both going to and returning from lunch. Then after I locate one staff attorney, I may be told by him or her that I have to track down the other one because the timesheet is with that person. Do you realize how time consuming this is when you have about fifty attorneys doing this, each doing it four times a day? Do you understand how demoralizing it is to be micromanaged like this? And you have the nerve to label us as employee attorneys on your website. This is insane! Why can’t we just input our time on the timesheet ourselves? Why does a staff attorney have to input our time?

How about these other rules? You can't eat at your workstation, not even a candy bar or a piece of fruit; you have to take an elevator and go to another floor. You can't use the microwave or the kitchenette on the floor; you have to take an elevator and go to another floor. You can't answer your cellphone and step out of the room to answer a call. You have to ignore the call and again take the elevator and go to another floor. It seems like that you are riding the elevator all day in order to do basic everyday activities. All this we are told because we can't offend Merrill Corporation. Who or what is this entity? I have worked at the top law firms in the city and they never subjected me to this kind of nonsense.

Do you think that when you treat attorneys so disrespectfully that they will do a good job for you and be conscientious in reviewing documents? I don’t think so!

It is bad enough that you are paying attorneys a pitiful rate, but they will not put up with lousy treatment for long combined with your low flat rate. You will have a mass defection when a decent project comes along. Also, your treatment of “employees” will be exposed in blog world and your law firm will be embarrassed.

In addition, your staff attorney John B, is nasty and unprofessional. He fosters a negative work environment and he has no people skills. The attorneys who work on your project there despise his pettiness. He should not be managing a doc review of a high profile case. He does not even dress in a professional manner and you expect your short-term attorneys to dress in business casual.

I suggest you make some changes before this project gets out of hand."

Never Mind That All The Document Review Has Been Outsourced, Ann Israel Tells NYC Unemployed Law Grad To "Stay Positive" And Go To Iraq

"It seems like Hester Prynne would have an easier time finding work right now wearing a scarlet letter A for her act of adultery than an attorney with a juris doctor degree from a low-ranked school on his or her resume.



But a lawyer newly admitted in New York and New Jersey who makes that complaint to legal consultant Ann Israel in a New York Lawyer column gets scant sympathy.



Rather than focusing on her 'obscene' law school debt and likelihood of a lower post-law-school salary, in real dollars, than she made in an interim think-tank position between college and law school, 'Hester' should pull up her socks and figure out what her best options are now, Israel advises. With her joint bar admissions, she certainly has some, both inside and outside the legal profession.



Among the practice possibilities to which Israel points is a gig in the military."



http://www.abajournal.com/news/hester_prynne_seeks_advice_about_jd_from_low-ranked_law_school

DWI Suppression Hearings

Father's day weekend on a beautiful and clear summer June in Ithaca is not as big a deal as Mother's Day. Those mothers, they are a mighty powerful group, whether they are speaking out about drunk drivers or having a holiday. But nevertheless my wife went out of her way to celebrate this weekend. I got a grill, a present or a job? you decide! It is such a thankless job to be the "GrillMaster"... She did her best to make my day special. It is tough to be her, I am a big pain at times, sometimes so full of myself, and tougher yet to be married to a man whose attention is focused elsewhere quite often. I get lost in my own thinking. Yeah, I am guilty of not listening, or hearing what she is saying. I like to sit and think. Sometimes I even wake up in the middle of the night with ideas or creative strategies.

This was especially so this special weekend because my brain was preoccupied with an upcoming DWI Suppression Hearing.

I get into my cases. I get excited about the challenges in my cases. How to get over some bad facts. How to maximize the value of good facts. I write out all my cross examinations in long form because I believe my goals and sub-goals need to be nailed down right the first time. I spend many hours preparing.

I have been watching a house painter for the past two weeks. I like watching other people do work. He was prepping a house a few blocks from Gimme Coffee. I am not a house painter but I do know one thing about painting. The key to doing a good paint job is all in the prep. Old homes require meticulous prep. Get rid of all the old rot. He spent hours and hours Scraping, sanding, and puttying each nook and cranny. The detail in the prep determines the final value of the paint job. Bad prep (incomplete or inadequate) leads to a bad looking and short lasting paint job. Even applying the best paint perfectly will not excuse a bad prep job. Ultimately, the paint will chip, peel, or look horrible.

Funny but DWI case prep is much the same way. You will rarely have a good result or a great result ie. great defense without complete and detailed preparation. I shudder when I see attorneys "wing it." Maybe in old westerns gunslingers can shoot from the hip but a well done defense requires time and work. For instance, For a recent defense to my client's DWI charges I wrote out a detailed cross examination chapter for the arresting officer (many chapters make up a hearing or trial) of my client's driving pattern pre-stop, it looks or sounds something like this:

GOAL: normal driving responses

At approx 200am on 01/10 you were traveling west on buffalo st.
You then saw a car in back of you
A car with bright headlights
You then let the car pass you
it was a red car
the red car was a 2003 bmw
You followed the red car
You followed the red car closely
You watched my client’s driving very closely
You observed the driver
His driving was not erratic
There was nothing unusal about his driving
Isn’t it true that the only violation you observed were bright lights from the car
Aside from that everything else appeared to be normal
You didn’t observe anything else erractic or unusual about the operation of the vehicle
The car traveled at the appropriate speed
The driver stayed in his lane of travel
You then activated your emergency lights
The driver slowed his car down
Smoothly
Safely
Gradually he reduced his speed
He brought the car to a stop
Safely
Parallel to the curb
The car did not touch the curb
the car used his turn signal
the right turn signal
And mr. c immed pulled over as a normal driver should in that situation
He parked his car on buffalo st in a normal manner

Each piece of my puzzle goes into place to build on my theory of the case. Great mental and physical function, step by step, block by block, chapter by chapter of cross examination of the cop. I usually have prepared between 15-20 chapters for a suppression hearing. Often I have 3 to 5 chapters to cross examine one field sobriety test. The time put in is well worth the effort. All the detailed preparation builds on the strengths of my case theory and exposes the weaknesses in the prosecution's case.

Chapters lead to establishing chapter goals which then adds up to a story. Our successful story of driving like a normal driver and functioning (mentally and physically) as a sober individual. The concept of using cross examination to tell a story and creating chapters comes from the master book on cross examination, written by Pozner and Dodd, called The Art and Science of Cross Examination. It should be in every trial lawyer's book case.

In my defense practice, my mantra, "the prep, the prep, the prep will give you the right rep."

SkaTTTen, SkaTTTen, SkaTTTen

Two weeks ago, we learned how Skadden will literally jerk you around night after night for weeks on end without pay while twiddle dee and twiddle dum try to figure out how to load documents into a computer.



Today, we learn how Skadden nearly destroyed the career of a young staff attorney. In short, staff attorney, sponsored by the Skadden pro bono program, undertook representation of a poor divorcee. The staff attorney's representation turned out to be nothing short of disastrous. Staff attorney didn't seek an iota of financial disclosure from the husband. Wife was later informed by staff attorney that she didn't "have the experience nor the time to handle a lengthy relocation trial," and that she could pretty much could forget about relocating to Florida with her child, after which Wife broke down in tears. The Skadden representation was found to be so bungled that the court had to undo the stipulation of settlement. You can follow the horrifying chain of representation below.



In the order dissolving the settlement agreement, the judge explicitly set out who she felt was to blame for this horror show of events:



"The Court is not using the actual name of the wife's former counsel so as not to embarrass her. . . The court attributes any errors in her representation of the Wife not to staff attorney's own lack of skill or judgment, but to inadequate training, supervision and oversight by Skadden and by InMotion."

- Justice Ellen Gesmer, NYS Supreme Court



Despite the judge's finding, two short weeks after the ruling, the biglaw media propaganda machine kicked into high gear smearing the reputation of this young staff attorney by prominently displaying her name at the front end of an article. Any future employer can easily google the name of this young woman and learn what an incompetent dolt she was. Skadden meanwhile pretty much gets off scott free.



http://www.nylj.com/nylawyer/adgifs/decisions/061809gesmer.pdf



http://www.law.com/jsp/article.jsp?id=1202431553713&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20090618&kw=Failure%20to%20Supervise%20Pro%20Bono%20Attorney%20Dooms%20Divorce%20Pact

Albany County Judge Gerard Maney Charged With DWAI

Albany family court judge Gerard Maney arrested for DWAI
June 20, 6:09 AM · Daniel Weaver - Albany CPS and Family Court Examiner
LINK

Albany County Family Court Judge, Gerard E. Maney, was arrested by Green Island Police on Thursday evening, June 18, 2009, and charged with DWAI. Maney allegedly had a .07 BAC and attempted to avoid a DWI checkpoint by making an illegal u-turn.

Besides being Albany Family Court Judge, Maney has also been acting Supreme Court Justice since 1991, Judge of Family Treatment Court since 2002 and Judge of Juvenile Drug Court since 2006.

Maney was the focus of national attention in 2000 when Jill and Michael Carroll of Berne took their son off of Ritalin and were charged with neglect (see articles below). The Carroll's had become concerned about the side effects of the drug prescribed for their son who had ADHD. Judge Maney sided with Child Protective Services, without hold a fact finding hearing according to the New York State law journal.

A September 29, 2006 Times-Union article claimed that Judge Maney had seen 23 men and women successfully complete drug and alcohol treatment in his court.

In 2001, the Third Division of the New York State Appellate Court overturned a ruling of Judge Maney's that had terminated a father's visiting rights. According to the New York Law Journal, the court ruled that Maney had expressed hostility toward the father and his attorney and thwarted the father's efforts to visit his son. The case was then turned over to a different judge.

There are currently no plans to remove Judge Gerard E. Maney from the bench while he awaits the outcome of the charges against him.

New York State Office of Court Administration - relationship map



Albany County judge charged with DWAI
Updated: June 19, 2009 05:04 PM EDT
LINK

An Albany County Judge has found himself on the other side of the law after running into some trouble at a DWI check point. Judge Gerard Maney is facing charges that he had too much to drink when he got behind the wheel.

Green Island police say around 8:00pm Thursday night, Maney turned onto the Green Island Bridge and became one more driver ensnared in a highly-publicized checkpoint.

According to police, Maney even tried to do a u-turn on the bridge to avoid the traffic stop. Police followed after him and they say he did not pull over until he had driven a mile and a half more.

Police say the judge's short and slow run from the law ended outside the Purple Pub in Watervliet, when Maney was pulled over.

After failing a field sobriety test, police took the judge in where they say he blew a .07; not drunk, but still impaired.

Maney received a ticket and was sent home.

NEWS10 went to Maney's home on Friday, but found out that he was actually at work; deciding on cases at the Albany County Courthouse.

Many people in the legal profession who NEWS10 spoke with told us Maney has a sterling reputation. He has served as a Family Court Judge since 1991 and even established the Albany County Family Treatment Court.

A statement issued by Family Court Chief Clerk David B. Cardona said of Maney, "He's a good guy. A great judge. He is well respected not only by those who work with him but those who appear before him. As for the allegations, we have no comment." [Editor's note: David Cardona, a lawyer and Chief Family Court Clerk in the same court as Judge Gerard Maney, is speaking out in support of his boss, Judge Maney. David Cardona is also the son of the Presiding Judge of the Third Dept, Anthony Cardona](pictured at left).


At the very least, the arrest may stall Maney's aspirations for a higher bench. Just this past week, he announced his candidacy for State Supreme Court Justice.

Right now, it is unclear if these charges will affect his run.

Because Judge Maney was not legally drunk at the time, he was actually issued a DWAI and not a DWI. So what's the difference?

Under the law, anyone with a blood alcohol level of .08 or higher is considered legally drunk. That's when police issue a DWI. If the blood alcohol level is under .08, but above .06, it's considered driving while impaired, and the person is issued a DWAI.


Albany County Family Court

Sobriety check snags judge despite alert
Albany jurist accused of DWAI count; cops say he tried to flee
By ROBERT GAVIN, Staff writer, First published: Saturday, June 20, 2009
LINK

GREEN ISLAND -- By the time Albany County Family Court Judge Gerard Maney allegedly tried to avoid a road sobriety checkpoint on the Green Island Bridge (pictured below) Thursday night, it was no secret police were out looking for drunk drivers.



More than 24 hours earlier, District Attorney David Soares (pictured at left) issued a news release to announce that 16 law enforcement agencies would be at DWI checkpoints around Albany County, much they did twice last summer on Thursday nights.

Despite the advance warning, 24 motorists were arrested within a five-hour span - including Maney, a family court judge in Albany since June 1991.

Maney, 59, of Albany, allegedly spotted the checkpoint on the bridge just after 8:30 p.m.

Police in Green Island say he made a U-turn, failed to comply with a traffic stop and led police for a 1-1/2 mile chase before he "finally came to a stop" outside the Purple Pub restaurant in Watervliet.

An officer detected a "strong odor of alcoholic beverage" coming from the judge. He failed a field sobriety test, a police report said.

He was taken back to the Green Island police station, where he registered 0.07 percent on an alcohol test, just below the 0.08 percent legal limit for DWI, sources said.

Maney was charged with a driving while ability impaired by alcohol, a violation akin to a traffic ticket, and issued tickets. He was released but given a ticket to appear in Green Island Town Court at 6:30 p.m. on July 7.

His immediate status on the bench had not changed by late Friday afternoon, said Kari Holloway, a spokeswoman for the state Office of Court Administration. She said the office were aware of the arrest and looking into the details. The case was pending, she said.

But the arrest could have wider implications for Maney's future.

Maney, the supervising judge for the Third Judicial District, earlier this week announced his candidacy to be a state Supreme Court justice. The district comprises Rensselaer, Columbia, Greene, Ulster and Schoharie counties, along with Sullivan and Albany.

Maney, a former assistant corporation counsel for the city of Albany, was appointed to Family Court by former Gov. Mario Cuomo. The state Senate unanimously confirmed his nomination. He began what he described as a "lifelong ambition" on June 11, 1991.

Maney did not return a call to his home late Friday afternoon.

A person familiar with the judicial system's disciplinary procedures against judges told the Times Union that judges arrested on alcohol-related driving allegations, in New York and other states, are generally not kicked off the bench - depending on the details of the case.

They usually receive a public admonishment, the least severe of the three levels of punishment possible from the state Commission on Judicial Conduct, the source said. The next most serious reprimand for a judge would a censure, followed by outright removal from the bench.

The source said reprimands can be more severe than an admonishment in the event of "aggravating circumstances," such as a judge throwing their name and status around during an arrest. While unfamiliar with the details of Maney's arrest, the person said leading police on a pursuit might be considered an aggravated circumstance.

The judge's brother, John Maney, was arrested on DWI and felony reckless endangerment charges in 1991. At the time, police alleged that when he was pulled over on Route 9 in Loudonville, he drove off and almost hit a police officer before being arrested near Colonie Town Hall. The case prompted complaints that he received special treatment from Colonie police.

That September, he pleaded guilty to driving while ability impaired and misdemeanor reckless endangerment and fined $325. The case was adjourned for six months in contemplation it would be dismissed.

Bob Gardinier contributed to this report. Robert Gavin can be reached at 434-2403 or rgavin@timesunion.com

COMMENTS from Crime Confidential

The Mysteries of Ritalin!
Chapter II

In our continuing series, we share with you several of the recent newspaper articles which show a continued biased approach to the truth. As we continue forward, we believe that the truth will come forth and prevail. We hope that these reports will be of benefit to each who read them. If you are one of the millions of people who are currently taking mood-altering prescription drugs, we suggest that you share this series with your family physician - for only through education, will they stop being a part of this form of genocide. Editor

New York Judge Rules Child Has Right to Visit Foster Mother
John Caher, New York Law Journal
June 27, 2001

In an apparent case of first impression in the United States, a Family Court
judge in Albany, N.Y., has held that a child has a liberty interest --
independent from that of his father and rooted in the constitutional
guarantees of freedom of association, equal protection and due process -- to
maintain a long-established relationship with his foster mother.

Judge W. Dennis Duggan's extraordinary opinion holds that a 6-year-old child
can assert a right to maintain contact with a person with whom he has
developed a parentlike relationship: in this case, the foster mother who was
essentially the only parent figure the boy knew from virtually the day he
was born to the day five years later when he was turned over to the custody
of his father.



Although an Australian court had ruled similarly, Duggan (pictured at right) is apparently the
first judge in the United States to expand the concept of free association
in such a dramatic and potentially reverberating fashion in the orbit of
family law.

In sum, the decision holds that: a child has a state and federal
constitutional right to maintain personal relations with a person with whom
he or she has developed a parentlike relationship; the child is entitled to
a process to enforce that right against unwarranted restrictions by the
state, a parent or another person; the child's and parent's rights must be
carefully balanced; and the court should presume that the parent's decision
to restrict or end contact with the nonbiological relation is in the child's
best interest.

Duggan acknowledges in Webster v. Ryan, 1448D, that he is recognizing a
right that is not explicitly found in the Constitution, and one which
requires a delicate balancing of liberties when exercised: the new-found
right of a child to maintain contact -- over the objections of a fit,
biological parent -- to a nonbiological relation against the right of a
parent to raise his or her child free of government interference.

A hearing will be held July 9 to determine if the boy in this case, who has
made no request for visitation with his former foster mother, has standing
to assert a claim and, if so, if granting such a demand would be in his best
interests. Duggan's decision outlines in detail the process for the child to
assert his enumerated and unenumerated rights and, if necessary, the
analysis the court will undertake in its best-interest evaluation.

"The narrow holding in this case is that a statutory scheme that permits
court intervention to order contact between a child and a parent or sibling
or grandparent is an unconstitutional denial of a child's right to equal
protection of the laws when the law does not provide a procedure for the
child to assert the same right with respect to a person with whom the child
has a significant or substantial parent-like relationship," Duggan wrote.
"Since the court holds that such a right is fundamental and constitutes a
liberty interest under the Due Process Clause, the child must have an
effective forum to assert that right."

Webster v. Ryan began as a petition by the foster mother, Harriet Webster,
raising the question of whether she had standing to make a claim for
visitation rights against the father, Alex Ryan Sr. In January, Duggan held
that Webster lacks standing. But in a footnote, the judge hinted at what was
to come and noted in a letter to counsel last month that he would be issuing
a follow-up decision addressing a child's standing to assert a liberty
interest in maintaining a relationship with a nonbiologically related person
"when that relationship has arisen under extraordinary circumstances and for
which the best interest of the child requires that the child have access to
the courts to maintain such a relationship."

BORN AN ADDICT

The case centers on Alex Ryan Jr., a boy born addicted to cocaine on June 2,
1995. Alex's mother, a cocaine and crack addict, abandoned the child of her
boyfriend. The baby was removed from her custody shortly after birth. Ryan,
the father, immediately sought custody, but the child was turned over to the
foster care of Webster. From 1995 to 1998, Ryan was afforded one hour of
supervised visitation each week and in 1999 his parental rights were
terminated by Albany County Judge Gerard E. Maney upon a finding of
permanent neglect.

Last spring, the Appellate Division, 3rd Department, reversed. In an
unusually pointed decision directed at another court, the 3rd Department
said Judge Maney had "repeatedly thwarted the father's efforts" and
displayed hostility toward both Ryan and his attorney. The 3rd Department
found the record generally supportive of a finding that the father was
qualified to care for his son and remanded the matter, with instructions
that it be handled by a different judge. The case then came before Judge
Duggan.

Duggan granted Ryan custody of his son and initially afforded Webster
temporary visitation against the father's wishes. Webster subsequently
sought an order affirming her visitation rights, and in his January decision
Duggan said he could find no statutory basis for granting her petition. Now,
with the latest opinion, Duggan said that while Webster lacks standing to
seek visitation with Alex, Alex may have standing to seek visitation with
Webster.

The court relied primarily on two precedents, Troxel v. Granville, 530 U.S.
57 (2000), and Alison D. v. Virginia M.,77 NY2d 651 (1991) -- and then
conceded in a footnote that the result in Alex Ryan's case, if visitation
with the foster mother ultimately results, would probably be different under
a Troxel analysis and would definitely be contrary under Alison D. Troxel was the 6-3 U.S. Supreme Court case last year where the terribly splintered Court -- it issued six separate opinions, three going each way -- struck down as applied in that matter a Washington State statute allowing any person to petition for visitation with any child.

Justice John Paul
Stevens (pictured at right), in a dissent, raised the issue of the child's independent constitutional rights, and Justice Anthony M. Kennedy also lent support to that concept in his dissent. In those dissents, as well as a dissent in a
New York Court of Appeals case, Duggan found authority for his holding.

In Alison D., the New York Court of Appeals held in a per curium decision
that the estranged mate of a lesbian woman could not assert a claim for
visitation. In dissent, now

Chief Judge Judith S. Kaye noted that the law does not define "parent" and that if she were to do so, she would include a "de facto" parent.

TIME FOR ACTIVISM

If Duggan is delving here into the realm of judicial activism -- and he
acknowledges he probably is -- he suggests that there is a time for such an
approach, and that time is now. In the first of 45 footnotes in a 44-page
opinion, Duggan struggles with the Family Court's inability to keep up with
a changing society, bemoans the outlived usefulness of terms like "custody"
and "visitation," suggests that children are usually shortchanged in an
adversary system with winners and losers and notes that he has ceased using
the word "visitation" in his orders, employing the word "parenting time"
instead.

With references back to the Federalist Papers and up to the present, Duggan goes to lengths to explain and justify the expansionist nature of his decision. He notes that the U.S. Supreme Court has recognized due process and equal protection rights to travel (Edwards v. California, 314 U.S. 160,1941), to wed (Loving v. Virginia, 388 U.S. 1, 1967) and privacy (Griswold v. Connecticut, 381 U.S. 479, 1965) even though those rights are not specified in the Constitution.

"The judiciary has no equivalent of the Rosetta Stone or Dead Sea scrolls to
divine the Framers' intent or unlock the original understanding of
Constitutional text when making a decision that determines a right or
expands a recognized right," Duggan wrote. "However, there still must be a
faithfulness to the text of the Constitution, a respect for the traditions
and values of our society and a deference to legislative authority."

Appearing in Webster v. Ryan were: Charles T. Kriss of Kriss Kriss &
Brignola in Albany for Webster; F. Stanton Ackerman of Ackerman Wachs &
Finton in Albany and Laurie B. Kurtzman of Schenectady for Ryan; and law
guardian Peter J. Scagnelli of Albany.

REACTION TO THE RULING

"This is an incredible decision," said Ackerman, counsel for the father.
Ackerman said the decision is constitutionally defective in that it tramples
the rights and destroys the statutory and common law autonomy of a
judicially determined competent parent.

"If this ruling stands, we are going to have to add a new branch to the
Family Court system to handle cases of this nature," Ackerman predicted,
adding that he could find no case in the nation that supports Duggan's
finding. "I just find it unusual, and bizarre, that he is discriminating
against a parent with sole custody. The boundaries of this decision are
unlimited."

Kriss declined comment on behalf of Webster, as did Scagnelli on behalf of
the boy.

Martin F. Guggenheim, professor of Clinical Law and director of Clinical and Advocacy Programs at New York University School of Law, said the ruling has enormous implications. However, he said that in light of the Justice Stevens
and Kennedy dissents in Troxel, and the Court of Appeals' 1992 decision in
Matter of Michael B., 590 NYS2d 60, it was probably just a matter of time
before some judge rendered a decision along these lines.

In Matter of Michael B., although not on point, the Court of Appeals
explored through Judge Kaye the weight to be given a child's bonding with
his long-time foster family in determining the placement that would be in
his best interest. The court found no liberty interest in a foster family
that can survive a child's interest in being returned to his parents.

With the court rejecting the argument that a child has a liberty interest in
remaining with the foster family, the court set the stage for a rule that
would allow post-return visitation in certain circumstances, Guggenheim
said. He said Duggan's decision providing a framework for post-return
visitation can comfortably co-exist with the principle adopted in Michael B.
and the proposition that the law should not countenance a rule that would
trump the very goal of foster care, which is the eventual reunification of
the family unit.

"In tolerating post-return access, courts would be taking into account
better than current law has the needs of children who grow up in
circumstances that no person who cares about children would have wanted,"
said Guggenheim, a family law expert. "Now the question is whether the law
is powerless to take the needs of the child into account. Frankly, I would
hope the answer is 'no,' that there is power in the law to figure out what
the right post-return arrangements might include."

Guggenheim said, however, that the father's views must be taken into account
and should be afforded great deference -- as, in fact, Judge Duggan held.

Richard Wexler, executive director of the National Coalition for Child Protection Reform in Alexandria, Va., said the ruling is detrimental to the extent that it pits a child against his father.

"This ruling, if it is upheld on appeal, will open a Pandora's box leading
to enormous harm to children all over the country," Wexler said. "There is
little more damaging to a small child psychologically than too much choice.
Here, you are placing the ultimate choice in the hands of a very young
child."

Wexler said that once the biological parent is found competent and fit, a
court should defer to that parent's judgment absent extraordinary
circumstances.

"We have lost the fundamental presumption that most of the time parents are
in the best interests of their children," Wexler said. "Even if,
hypothetically, this particular child might do better in a situation where
there is a voluntary agreement for visitation, the tension caused by the
court interference itself, the harm caused by the meddling, outweighs any
possible benefit. What this court has forgotten is what every doctor is
supposed to learn in medical school: First do no harm."

Guggenheim said that while he understands and generally agrees with Wexler's
position, he also believes that a balancing of the interests and rights, as
ordered by Duggan, is both feasible and equitable.



Parents lose fight to take 8-year-old off Ritalin Child's hyperactivity disrupted classes, school officials say
Associated Press, Wire Sevices, October 22, 2000
BYLINE: Lynn Brezosky
The Associated Press
LINK

BERNE, N.Y. - The school nurse called during Kyle Carroll's first week of second grade in September. Wasn't Kyle going to be taking his Ritalin?

No, Jill Carroll said, he made it through the summer without the drug and did just fine. She and her husband, Michael, were holding out, hoping the Ritalin days were over.

On Sept. 15, the Carrolls say, they got another call. Their 8-year-old son was in the office and the district was threatening to expel him unless the medicating resumed.

Superintendent Steven Schrade, who wasn't with the approximately 1,200-student school district when all this happened, denies the threat and now says the whole situation with Kyle "was from well-intentioned people and just snowballed."

Confidentiality reasons, Schrade says, prevent him from discussing the case or the battle of wills the Carrolls say took place between Kyle and his teacher.

"I think there are a number of other factors that we can't talk about," he says. "Believe me, Ritalin wasn't the only reason that the family ended up in Family Court."

Meetings would follow, with the Carrolls on one side of the table and a team including guidance counselors and special education specialists on the other.

"I just started throwing things at them, why Kyle shouldn't be on Ritalin," says Michael Carroll, a construction worker. "They just kept throwing things back at me, why he had to be. They didn't let me finish a sentence. They were comparing Ritalin to insulin. It has nothing to do with that. [Without insulin] the child dies. Without Ritalin you've just got to give a lot more time."

The law requires that school employees report instances of neglect to child protective agencies. In Kyle's case, someone at the school equated the failure to medicate Kyle with the unexplained bruises or signs of malnutrition that might prompt other calls.

The matter went to Family Court, where a judge ordered the Carrolls to continue giving Kyle medications prescribed by a physician.

"The case as I see it is educational neglect," says Pamela J. Joern, the law guardian appointed to the case. "Your child has a diagnosis, it interferes with his education, a recommendation is made. It is not followed by the parents. It continues to interfere with his education. The parents take no steps to address the problem.

"It's not a pro-Ritalin decision; it's not an anti-Ritalin decision. A parent failed to ensure their child was able to receive an education."

Ritalin is a brand name for the methylphenidate, which is believed to increase a child's alertness by stimulating the central nervous system.

Psychiatrist Susan Abbott says Kyle probably was better able to learn when medicated.

"If unmedicated, you certainly won't learn as much as well, you won't achieve the same grades, you may not be able to follow your aspirations, attend your college of choice," she says. "When the kids in the neighborhood don't play with you and you fall further and further behind ... that's sad."

American doctors are now writing an estimated 11.4 million Ritalin prescriptions a year - more than double the approximately 4.5 million written five years ago. According to recent studies, the United States makes and uses 85 percent of the world's supply of the drug, and use is now beginning to pick up in Western Europe.

To Dr. Peter Breggin, author of several books on the subject and crusader against psychotropic drugs as a whole, it all speaks of mind control, of Big Brother and ultimately of trampled constitutional rights. Especially when he believes that the malady Ritalin and similarly classed drugs are used to treat - Attention Deficit Hyperactivity Disorder, often called Attention Deficit Disorder - is "a fabrication" meant to label certain personality types as diseases. ADD is not diagnosed from the kind of evidence of brain irregularities that doctors use for, say, Alzheimer's disease or strokes, he says. "The diagnosis is if the kid squirms in his chair, interrupts, is sloppy - a list of things that annoy teachers and make it hard to teach."

Jeffrey Schaler, a psychologist who teaches at American University's School of Public Affairs, agrees.

"There's no deficiency that Ritalin is fixing," he says. "What it's doing is changing a behavior so the child complies with expectations and behaviors expected of him. You drug the child and get him to comply by drugging."

On Ritalin, the Carrolls say, Kyle is a zombie. He barely eats or sleeps; Michael says he senses him lying awake in his bedroom long into the night. When the parents went to school to view the children's pipe-cleaner bug projects, all the other children ran around excitedly. Kyle sat at his desk, staring off into space.

"We'd rather have him hyperactive than 'duh...,"' says Jill, who works as a store clerk.

Side effects like Kyle's are often attributed to Ritalin; the drug has also been associated with stunted growth and irregular heartbeat.

The Carrolls, who have three other children, feel the school would rather drug Kyle than take time with him.

Says Abbott, "I think in a world where each child can have their own teacher that would work. But in a class where teachers spend 33 percent of the time on one child with ADHD, you kind of have to think of the real world here."

After heavy media attention, the Carrolls' doctor has agreed to take Kyle off the drug and he has been enrolled in a special education program in another school district.

Ritalin Case Puts Parents, Courts on Collision Course
BY JOHN CAHER, New York Law Journal (August 17,2000)



ALBANY - An educational neglect case in Albany involving a 7-year-old boy whose parents were hauled into court after taking him off Ritalin has sparked a national debate over privacy rights, judicial authority and parental sovereignty.

The Kyle Carroll case is apparently the first in the nation in which parents were pressured - if not outright ordered - by a judge to give their child the controversial stimulant after the school district petitioned the court.

Albany County Family Court Judge Gerard E. Maney has become something of a lightning rod for criticism in a widely reported matter illustrating some of the legal complexities that arise when schools and courts are confronted with a child covered under the Individuals with Disabilities Act (IDEA), 20 U.S.C. 1400.

His ruling has galvanized parental rights advocates who insist that the courts have no business ordering parents to administer a psychotropic drug to their child, even though that is not quite what Judge Maney did in the case.

"It is enormously harmful for the child for Gerard Maney to substitute his judgment, or for a [Child Protective Services] caseworker to substitute his or her judgment, in these circumstances," said Richard Wexler, executive director of the National Coalition for Child Protection Reform in Alexandria, Va. "I don't believe the child welfare law was ever intended to be used this way."

The case, and ensuing debate, involves a boy in the Berne-Knox-Westerlo School District who was diagnosed with attention deficit/hyperactivity disorder, or ADHD.

Kyle Carroll is among some 3.8 million school children, mostly boys, with ADHD, according to the American Academy of Pediatrics, and one of at least a million kids treated with Ritalin. ADHD is a disorder covered under the Individuals with Disability Education Act, which requires school districts to provide educational services in the least restrictive environment that will meet a child's needs.

Upon the recommendation of a psychologist, a doctor prescribed Ritalin (methylphenidate) and, under the mandates of IDEA, teachers crafted an Individualized Education Plan to accommodate Kyle. Ritalin was administered and Kyle became subdued.

But Kyle's parents, Jill and Michael Carroll of Berne, a rural community outside Albany, grew concerned over the side effects their son seemed to be exhibiting - sleeplessness and loss of appetite, both of which have been associated with Ritalin - and informed the school that they wanted to take their son off the drug for a couple of weeks to see if the problems cleared up. That resulted in a visit from an Albany County Child Protective Services worker, and ultimately a petition that landed before Judge Maney.

In court, the school district accused the Carrolls of educational neglect. Michael Carroll was represented by Assistant Public Defender William P. Andrews. Attorney Ruth H. Supovitz of Albany appeared for Jill Carroll.

The law guardian, Pamela J. Joern of Albany, supported the district's position that the family should be required to address Kyle's condition.

"The child was diagnosed with ADHD, not by the school but by a psychologist, and a medical doctor prescribed Ritalin based on the recommendations of the psychologist," Ms. Joern said. "The child took it for a period of time, his behavior improved and the parents unilaterally decided, because of their own beliefs, that they weren't going to give him Ritalin. His behavioral problems returned and interfered with his school performance."

No hearing held there was no fact-finding hearing before Judge Maney. There was no testimony taken and there was no written decision rendered.

Instead, the Carrolls, under at least the theoretical threat of having their child removed from their custody, consented to an adjournment in contemplation of dismissal (ACOD).

"The consent ACOD directed the parents to comply with the doctor's treatment regimen, which was a prescription for Ritalin," Ms. Joern said. "They could get a second opinion, but they couldn't ignore the problem.... This was not a case where a judge directs parents, over their objection, to give a child a prescribed medication. That is just not what happened."

Regardless, media and commentators around the country have weighed in with Brave New World concerns, many of them focusing - unfairly in Ms. Joern's opinion - on the supposed heavy handedness of Judge Maney.

Mr. Wexler said the Albany County Family Court overstepped its bounds by, in effect, compelling a particular medical regimen in a situation that was clearly not life-and-death.

"It is not as if these parents simply refused Ritalin outright," Mr. Wexler noted. "They tried it. They saw that it was having harmful consequences for their child and they did what any responsible, loving parent would do.... It is terribly damaging for children for the state to rush in willy-nilly and substitute its judgment for parents in those situations."

Professor Jeffrey Schaler, a psychologist who teaches Justice, Law and Society in the School of Public Affairs at American University in Washington, D.C., said the consent decree constitutes an inappropriate use of judicial authority.

"I think that parents have a right to not give their kids drugs and this deprives the parents of the liberty of raising a child as they see fit," Professor Schaler said.

"If the child is disruptive in class, the school has a right to ask that something be done, but I don't think that is the equivalent to saying they must put a particular chemical in a child's body."

Ritalin, Professor Schaler said, does not address a medical condition the way, say, insulin addresses the condition of diabetes. Rather, he said, it is a "form of social control," an area where judges should not tread.

"What the judge is doing here is engaging in parens patriae," Professor Schaler said. "Invading a child's body or person with a chemical is an invasion of privacy and also a deprivation of due process. It deprives the parents of the liberty of raising their child as they see fit, and deprives the child of the liberty to not be on Ritalin."

Professor Schaler said a more appropriate judicial response would have been to impose on the parents the responsibility of making sure their child is not disruptive in school, and affording them the autonomy to find their own solution.

But Ms. Joern, the law guardian, suggests that is exactly what Judge Maney did. Ms. Joern said the judge ordered the only remedy before him - Ritalin - and left the door wide open for the parents to suggest another medically approved alternative.

Courts Reluctant Lucia Whisenand, an attorney in Syracuse and former chairwoman of the New York State Bar Association's Children in the Law Committee, noted that courts, including the U.S. Supreme Court, are usually reluctant to intrude in matters of parental discretion.

Ms. Whisenand said the U.S. Supreme Court ruling on June 5 in Troxel v. Granville, a grandparents rights case, is illustrative. In Troxel, the Court reaffirmed the right of parents to raise their children without state interference, absent a showing of harm to the child. However, the divided Court did not clearly identify the appropriate standard for review in determining when an exercise of parental discretion results in the type of harm that can invoke government intervention.

"You have an obligation [as a parent] to provide appropriate food, shelter and medical care," Ms. Whisenand said. "The problem is, what's appropriate?"

Ms. Whisenand said absent "some pretty strong evidence that the child was at great risk if he didn't take the Ritalin," a court is "walking on some pretty thin ice" if it orders ingestion of the drug.

Overtreatment Possible There continues to be considerable debate over labeling of a child as ADHD-afflicted, and the efficacy of using Ritalin, and nagging concerns that behavioral problems are overly attributed to attention deficit/hyperactivity disorder and overly treated with methylphenidate, according to Karen S. Norlander, of Ruberti, Girvin & Ferlazzo PC in Albany, a former staff attorney with the State Department of Education and former general counsel to Statewide Youth Advocacy.

"You have groups that will absolutely swear by Ritalin and you have groups, including the medical profession, that raise serious questions about any kind of drug for children and the long-term effects," said Ms. Norlander, who is also a former law guardian and 18-B attorney in Family Court, and is now of counsel to a firm that focuses on education law, children and family law.

She said it is "very troubling" for the judicial system to become entangled in the debate, but acknowledges that circumstances often require judges, particularly in family law matters, to delve into areas that some would consider out of judicial bounds.

With the Kyle Carroll case, there is no record from which to seek review by a higher court, and with the consent ACOD, nothing to appeal. So the propriety of Judge Maney's decision will apparently go unreviewed, while the debate over what he did, did not do, should have done or should not have done continues.

Meanwhile, a handful of other cases in which schools are attempting to employ judicial clout to compel use of Ritalin are pending.

Last One Out Turn Out The Light

"In a move that is sending shudders through the global BigLaw community, Rio Tinto has hired a team of Indian attorneys in an effort to cut by 20 percent its annual legal budget of about $100 million."



And it's not just contract attorney work anymore.



"Although outsourcing legal work to India is far from a novel concept, Rio Tinto is bypassing law firms and outsourcing legal work directly. Plus, not just legal processing but substantive legal work is being handled by the Indian attorneys it retained through CPA. Thus, the Rio Tinto move represents 'a fundamentally new way of working,' the Times article explains."



http://www.abajournal.com/news/biglaw_firms_shudder_as_rio_tinto_retains_legal_team_in_india/

Sallie Mae Is Satan

End your bondage in these awful cockroach-ridden sweatshop basements by lobbying for student loan reform.



Check out the following posting I pulled up on JD Underground. How succinct and so accurately put! Sure, there is a lot of trash and nonsense on these boards, but a jewel like this makes it all worth it:





"First of all the banks... disadvantaged? Who gives a fuck? The banks never loaned out their own money. The lenders are lending out free money from the FED. When people default banks make a FREE 30k on the default which the GOVERNMENT Guarantees. And on top of that they write off the losses...



And let's be honest, if corporations / lenders do go under.. they can go BANKRUPT. They can start over.... Which is something that student loan borrowers can NOT do. The people who work at a corporation that is not ran well can just close up shop and start a new corporation, or go through BANKRUPTCY and reform the exact same corporation without their debt just like a number of major corporations are doing RIGHT NOW here in America, or in the worst case scenario the people who poorly ran that corporation into the ground can go get a job some place else.



The problem is that student loan borrowers can NEVER escape from the problem. That's just UnAmerican. The fees and penalties which are stacked on top of their debt, by lenders who have never really done anything (except fill out some forms for the Government) are taking advantage of other people's hard luck.



Talk about a free lunch. I guess a free lunch is fine if you are a corporation,.... but a free lunch for the middle class well that is EVIL. What a bunch of hypocrisy.



How about this pay your fucking taxes and have a real education and health care system like they do in Europe instead of forcing young people to take out massive loans for college AND THEN putting them into default and making a ton of money of their hardship when their business fails. How about that huh?



And I don't think anyone is talking about a free ride anyway. What we want is the right to go bankrupt... a right which EVERY bank and corporation in America has. It's also a right which EVERY American had up until 1998....



Our country worked fine until 1998. It's a fucking sewer today. The mantra of personal responsibility for the MIDDLE CLASS (but not for corporations) has been an abject and total failure in the real world. It might work fine on Fox News, but it does not work on Main Street.



People need to be able to go bankrupt just like every corporation in America can. Bankruptcy allows people to get back on their feet and start over. That's the American way. Risk makes the system work. Without risk the system fails.



If you really want personal responsibility start at the top. Make corporate executives PERSONALLY responsible for losses of the corporation and make it impossible for them to go bankrupt. Turn them into slaves if the corporation fails. I bet the idea of bankruptcy wont be seen as a free ride then."





Or sentence them to ten years in the hellish basements of their biglaw whore counterparts!



If you haven't done so already, join the facebook group:



http://www.facebook.com/group.php?gid=46657437878

The Golden Rule and the Value of Transparency

I am a one man law firm, as they say a "solo practitioner." This is neither good or bad, it is my choice. In my heart, I have always cared more about the relationships I created with people than about being thought of as weird or abnormal. I am not normal if normal means traditional. Not when it comes to doing business. The truth is you buy a person not a business. This is especially true within the services industries.

Lots of businesses have lost this mentality. My chiropractic patients always had one main pivotal question, "do you care?" Do you care about your patients? Do you place their goals and their needs first? The real question was, "can I trust you?" or "are you trust worthy?"

I used to call my patients after their first treatment (after their first spinal adjustment). I did this for a few reasons:

1. They might feel more pain or get worse after that adjustment. Worse meaning more symptoms. This did not mean the care was wrong or ineffective. It merely meant that things were changing and anytime you make changes there is a period of adjustment of the body to those changes.

2. They might feel less pain or get better after that first treatment. That alleviation of symptoms might only be temporary. Feeling better was great but not my purpose or the goal of my treatment. I was not a pain doctor, I was a corrective doctor. A doctor who wanted my patients to understand that I was focused and interested in the long term. I wanted them to embrace changes that would ensure quality lifetime function.

3. I wanted my patients to have no surprises. I wanted them to know what they were facing, and to not sugarcoat the extent of the road ahead.

I practice law much the same way. I want my DWI clients to have no surprises. No surprises from the Courts, the Judges, the Prosecutors, the DMV, or me. To the greatest extent possible I want my counsel of their legal issues to be holistic.

I want my clients to know their choices. I want them to be empowered by that sense of choice. I want them to understand how their criminal charge or charges can affect many other areas of their life, both now and in the future. I give my clients access and direction to important resources and specific information. I tell them they are not mushrooms. They will not be in the dark about what awaits them. I walk them through each phase of their case, explaining potential problems and solutions.

So how does that all relate to my topic for today? What do I believe?

I believe to do what I do the way I do I "must" practice law transparently.

I got the word from our new president. To me it means openly, without pretense, easily understood, and accessible. Anyone who has been represented by me can tell you I am down to earth, one on one, easy to find, and probably alittle too verbose. It comes from my background, my parents, and my philosophy of life. It is what it is and I am who I am.

Call it the straight shooter or the mince no words or the facts are the facts or the tell it like it is. No you can not have your cake and eat it too! You get what you pay for! I tell people if you want fantasy hire someone else.

I believe what you put out comes back. What comes around goes around.

It may not happen today or tomorrow but sooner or later it's coming. Call it Karma, call it the golden rule, call it the law of the universe, but whatever you call it does not matter. What counts is that you respect the law and understand that it will not be cheated. Every dog has his day!

I have experienced this law in every area of my life. I have sowed bad seeds and reaped much pain and sorrow. I have sown good seeds, showed care and appreciation, and reaped abundant joy. Every one of us will learn this or as is said you will be "schooled" in this.

So for all these reasons I practice law the way I do. I do not hide behind walls, offices, or secretaries. Those that get me get me and those who do not, well they will gravitate to those with a like mentality. For those who want a Transparent DWI Defense Lawyer I am here in beautiful Ithaca.

Slip Of The Tongue?

Apparently, this former Coleman Legal Staffing clown didn't get the memo. Biglaw won't be bringing in Native American Indians to do the work, but rather will be outsourcing all the work to Indians on the Indian subcontinent.

"Firms aren't going to go back to the same level of hiring for partner-track associates. Firms still need to hire for the traditional associate track because they will be future leaders of the firm, Robert Nourian said, but there won't be as much of that hiring.

Instead, firms will focus on staff lawyers with credentials maybe only half a step below the traditional associate level to help in a support capacity.

'There's chiefs and there's Indians,' Nourian said. 'Somewhere down the pyramid you can have some folks who maybe aren't Ivy League grads.'"

New York Lawyer, 6/17/09

Axiom Legal

"Axiom Legal" is a temp agency masquerading as something new, so cool, and so different. But actually it's 10 times worse than any agency with the bullshit you have to put up with.

Axiom was started several years ago by a former Davis Polk associate who claimed to hate the legal business and who thought he could compete against them with "a new kind of firm". It was to be based in a loft office in Soho with all sorts of cool people. Like the Spiderman song, "Be yourself in a world that's crazy and cool". I'm soooooooooooooooooooooo Axiom!

Axiom said no more big law firm B.S. with the partners raking in big margins off associate work. They went to various big firm type clients like Morgan Stanley and Goldman Sachs to offer "the same service at a better price".

They then interviewed people, who had to fit their cool, mod-squad image. Any independent thinker or non-clone was definitely off-the-list. No they had to have a lot of artists and aspiring models.

Their key interviewer was Don Carlson, a smirk-face asshole from Harvard and Goldman. Kiss his prematurely bald-headed butt big time or you'll never get through the door!

Well lo and behold, Axiom brought in a private equity fund hedge fund to buy their shares a la Update.

While hyping themselves as something so trendy and insisting how they are not a temp agency, that's all they are, as they now gigglingly admit.

If you love kissing ass and love working in a Soho loft with a bunch of loser wannabes, then Axiom is the place for you!

Wise Counsel

"Tom,

Heads up! There is a new bottom feeding agency in town. The person who is complaining about Wise Counsel is spot on. Although the agencies are all fly by night (on a broomstick), Wise sub-let some tiny rabbit cage space on Third Avenue. They sent me for a total waste interview in Garden City, Long Island at a nothing firm. They then started asking me if I wanted to sub-sub-let some space in their office to operate a private practice. You see, these agencies will find any ways and means to skin you alive. You don't have a job - and they don't have anything for you - so they try to get rent money out of you.

The second of the Big Three has to be Helene Diamond. Every temp has dealt with her agency, Peak, at some point offering the lowest possible rate and the worst jobs, usually in places like Bridgeport, Connecticut with no commuting allowance. (This is a real experience I had with her.)

The third and winner of the Booby Prize goes to Sean Treadwell, who has called every temp but never returns their calls or emails. There is always some non-existent position with him. He wins the resume-collector of the year award. He's just fishing around to see what's out there and to get everyone's resume so he can claim to be their massa'.

The new and up-and-coming power player of the week is Sara Kim of Yorkson, also famous for touting non-existent jobs and being very nasty."

Conflicts Require Corrective Action, Not Just A Wink

In People v Connolly (2009 NY Slip Op 04822 6/12/09)the Court held that the grand jury proceeding was defective where

one of the grand jurors informed the prosecutor that she was the mother of one of the alleged victims and the mother-in-law of another. In addition, the grand juror's daughter had commenced a civil action against defendant, allegedly arising from the same facts that resulted in the instant indictment against defendant. Although the special prosecutor instructed the grand juror not to participate in any proceeding concerning those witnesses and not to listen to their testimony, she was permitted to remain in the grand jury room during the presentation of the remaining evidence concerning defendant and she heard defendant's testimony. She then was permitted to participate, consult and vote on all of the charges against defendant that did not involve her relatives.

The Court explained that

although the grand juror in question did not participate in the vote concerning the particular count of the indictment that pertained to her daughter and son-in-law, she participated in the remainder of the proceedings concerning defendant, including the vote to indict him on the remaining counts in the indictment. In addition, the daughter of the grand juror had a financial interest in defendant's indictment and conviction, arising from the pending civil action, and we conclude that potential prejudice arose from permitting the victims' family member to determine whether to indict defendant. The special prosecutor was therefore required to excuse the grand juror from participating in the case against defendant or to present the matter to the court.

This holding seems fairly obvious. What is not obvious is why the special prosecutor, appointed to avoid a conflict of interest, thought otherwise.

SORA: When Is Person Whom The Defendant Had Never Seen Before Not a Stranger

In People v Helmer (2009 NY Slip Op 04830 4th Dept 6/12/09) the sole issue was whether the victim was a stranger to defendant for purposes of determining whether defendant should have been assessed 20 points on the risk assessment instrument for risk factor 7, "[r]elationship with victim."

The Court held that despite the fact that it was undisputed that defendant and the 15 year old victim had sexual relations on the same day on which they had their first face-to-face meeting, she was not a stranger to the defendant. The Court based this holding on the fact that the defendant and the victim had communicated via the Internet and telephone for several weeks before they actually met in person.

Prior to meeting, they had more than 100 Internet exchanges and 30 telephone calls and through their communications, the victim knew defendant's name and age, as well as the status of defendant's pending divorce. The Court concluded that

The risk assessment guidelines provide that "the term stranger' includes anyone who is not an actual acquaintance of the victim" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 12 [2006]). The term "acquaintance" spans a range of social interactions, and we conclude in this case that, based upon the extensive communication through electronic means over a period of weeks and the information learned therein, defendant and the victim were not strangers when they engaged in sexual relations.

Wake Up Calls

Last week was a busy one. I had multiple DWI hearings, a mini trial, and a DMV Refusal administrative hearing. These took place within three counties and five town/city Courts. Jumping cities to counties is fine when the weather is good but when November hits the roads in Upstate NY can be challenging and potentially dangerous. Moving about keeps things interesting and sometimes how they do things (handle criminal cases) in other parts of the state gives all my cases a new perspective.

I remember way back in my Brooklyn, NY days I worked out (thats how we said exercised) in a real basement gym. Just free weights back then, no cardiovascular machines, no aerobics, just men grunting and yelling. In fact, it was a big deal when sometime around 1978 the first women were allowed to join. It was located in Sheepshead Bay. The owner was a chiropractor named Julie Levine. Anyway, there were some real characters who worked out there and the entertainment value alone made the crazy workouts bearable.

It's funny the stuff you remember from 30 years ago, there was one guy who wanted me to wake him up early. He was willing to pay me to keep calling him until he got up, and came to the gym. It seems that giving Wake Up calls was something I am good at.

When I was a chiropractor I gave my patients wake up calls to change their lifestyles, their diets, and their bad habits. That trend to wake people up by either motivation or inspiration has continued with my legal clients. Many of us definitely need a wake up call.

A wake up call is a call to action. A call to make a change. A call to re-evaluate and to potentially re-assess your priorities and your values. Along the spectrum of cases there are people who do not want to accept any responsibility for their current problems or situation.

You are where you at this time and place for a reason. Life is many things but it is also a great teacher of lessons. What you do not learn from, you will be forced to repeat. Much like failing a class in school you must take it over and over till you get it right.

Lawyers, Judges, and Courts are in people's lives for a reason. Many problems are an opportunity to change, to come back to what is most important to you, and to get out of a destructive life path. Until people see the value in their situation they will expend huge amounts of energy fighting it.

Maybe you will find out who your friends really are? As they say, everyone wants to know you when things are good, what about when things are not so good. Maybe you will find out the value of having family? Being arrested and going through the criminal process definitely brings change. I have seen it break up long term relationships, and also strengthen ones that were weak.

I am of the opinion that everything happens for a reason and a purpose. I do not believe in randomness. I believe in God. To me that is the Grand Organized Designer. The plan is sometimes bigger than we can see but I believe in this perfection. I have seen so many people over the course of twenty plus years of professional practice look back on the most horrific events with gratitude. They see that the new job, the new life, the new relationship, and all the changes that came about as a result of their DWI curse were truly a blessing in disguise.

Court of Appeals Allows Admission of Identification Evidence Which is Product of Suggestive Procedures Not Conducted by Police

In People v Adams (53 NY2d 241 [1981]) the Court of Appeals held that evidence of an unnecessarily suggestive police-arranged identification of a criminal suspect must be suppressed as a matter of State constitutional law. Unfortunately, despite the fact that misidentification is the single greatest cause of wrongful convictions, the Court of Appeals in People v Marte (2009 NY Slip Op 04741 June 11, 2009) held that no similar per se rule applies to a suggestive identification in which the police are not involved.

The Court did recognize that "suggestiveness originating with private citizens can create a risk of misidentification" and concluded that "Perhaps other safeguards would be appropriate in particular cases, and we do not rule out the possibility that a court, in balancing probative value against prejudicial effect, may find some testimony so unreliable that it is inadmissible."

There is a Court that has held that unreliable identification evidence is inadmissible. That Court is located in Washington, D.C. and has nine members. Way back in 1977 that Court held in Manson v Braithwaite (432 US 98 [1977]) that "reliability is the linchpin in determining the admissibility of identification."

The decision of the Court of Appeals not to apply a per se rule against the admission of identification evidence which is the product of suggestive identification procedures should not be read to permit the admission of unreliable identification evidence. One would think that, given the United States Constitution, as interpreted by the United States Supreme Court and the Supremacy Clause, unreliable identification is inadmissible in New York courts.

SkaTTTen Strikes Again

"Tom,

Remember the article you had about SkaTTTen? Well, Kelly is staffing a project at Skadden, and not only is the pay rate the "new reality" (33/hr) but the work has been irregular. I am on the project and was told on Monday not to come in on Tuesday. Then on Tuesday night, I was told not to come in Wednesday. And finally, tonight/Wednesday night, I was told not come in on Thursday. Each of the last two nights we had to wait to find out whether or not come in the following day.

This is especially frustrating not only because we don't get paid (obviously) for our days off, but because we have also had to work weekends at times. We may still have to work weekends in the future. I know that this is a temp job, but I've never been on one where it was so on-and-off. I think if there were more opptys out there many of us would leave...."

Wake Up, People!

I have been reading the most recent string of comments. Which is better? Update, or the Tower staffing agency? Who cares? Stop trying to compare dog shit with cow shit. Even I who has been writing about this snake infested industry for years now has time and again fallen prey to the fake, poodle charlatan lapdogs. Make no doubt about it, there is nothing "professional" about these posturing, Verscace-clad monstrosities. If you aren't blacklisted from at least a half a dozen of these horrorshops, you are clearly doing something wrong. May God help us.

Let's End the DDP (Drinking Driver Program) Confusion!

Over the past few weeks I have been contacted by half a dozen people who are confused about New York's DMV's Drinking Driver Program, and their DWI cases. Some of the common issues:

1. How does the alcohol evaluation counselor determine the need for treatment?
2. When is the DDP mandatory?
3. Can I get my full license privilege back early by completing the DDP?
4. How does my conditional license pre conviction relate to my conditional license post conviction?


1. Alcohol Evaluations with OASAS certified providers have a wide range of formats. The most common format is the two visit, screen and evaluation. I have heard of four visit evals. In some of the wealthier parts of New York State (not Ithaca), I have seen fees of $125 a visit with four visits to reach a conclusion. In Ithaca, it is around $80 a visit. I have seen evaluations with drug/alcohol screenings (Urine tests) and breath tests. Sometimes these may surprise the unwary.

The evaluators can be very subjective as to who requires treatment. I have spoken to some evaluators who feel the charge of DWI alone or a breath test with a BAC of over .08 qualifies a person for twelve weeks of three time a week twelve step classes. I have heard that positive responses to the following questions could automatically signal an abuse diagnosis:

Question 1: Do you have or had you had any hangovers?
Question 2: Do you think it is OK to have one drink and drive?
Question 3: Have you drank any alcohol since your arrest?

I would want a definition of hangover before answering that first question, but then I'm an attorney. Is feeling tired or bad the day after drinking a hangover? I sometimes feel that way after eating too much late night ice cream, would that qualify as a hangover? Be careful how you answer any question.

Now some evaluators are fair and some are not. Some will view the totality of person's life and behavior before rendering an opinion while others unfortunately do not. I have been surprised in both directions. Sometimes my clients did not get a treatment recommendation when in my opinion, half common sense and half legal, they needed help. And while I am not a drug/alcohol counselor you can often tell who needs help.

Other clients who only drink socially, never to excess, and with no underlying problems were given an alcohol abuse diagnosis. Please NOTE: You are allowed a second opinion.

2. The DDP is mandatory in the following situations:

-When the Court orders it as part of your CD, conditional discharge (a condition of your compliance with paying fines, and the VIP (victim impact panel)).

-It is also mandatory if you want a conditional license privilege post conviction.

This is a crucial distinction. There is a PCCL (Pre-Conviction Conditional license) while you await a final disposition of your criminal case. It is given by the DMV after 30 days have run on your hardship privilege (the hardship privilege license is a conditional bridge license). The hardship privilege is merely for the 30 days following your suspension pending prosecution which occurs at the initial appearance if your BAC was .08 or higher.

When your criminal matter is resolved, usually at sentencing, you are supposed to "hand in" your pre conviction conditional license (PCCL) to the Court. If you or your attorney request, the Court will give you a 20 day stay of your suspension period. In other words, you will get your full privilege to drive back for 20 days from your sentencing date. You will get another 3 part form (like the hardship privilege document) that states the stay period, and the start of the suspension period. If after the 20 days have run and you have not signed up for the DDP classes you now have NO license privilege.

You are expected to sign up for the DDP to get a Post conviction conditional license, and you will get your full license back after the program is completed (for first time DWI offenders over the age of 21) and you pay "somemore" DMV fees.

3. The great news is after a total of seven weeks (16 hours) of DDP classes you will get your full license privilege back even if you had a DWAI: 90 day license loss or a DWI: 6 month license loss. There are some exceptions where the DMV will not shorten the Court mandated suspension period. See NOTE below.

If you are still driving at this point, without signing up for the DDP you are driving on a suspended license. If you are pulled over without a post conviction conditional license you are going to be charged with an AUO (aggravated unlicensed operation), a misdemeanor.

NOTE: Even if you complete the DDP the DMV will not give you back your full license privilege until the end of the revocation/suspension period:

1. if you originally had refused the breath test (the chemical test back at the station),
2. if you committed the alcohol or drug-related violation while driving a commercial vehicle,
3. if you were under 21 at the time of your arrest.

However, you can still complete the DDP and maintain your post conviction conditional license while the suspension/revocation period runs.

4. Do not confuse Pre and Post conviction Conditional licenses. The "pre" is given while awaiting the resolution of your criminal case without taking a DDP class. The pre is before your case is resolved. The "post" is only given in conjunction with signing up for and taking the DDP classes.

So I hope that this sheds some light on this pre, post, PCCL, DDP, and DWI alphabet soup. If not call or shoot me an email.

The big disclaimer: The Power of the DMV
The DMV has the ultimate discretionary powers to deny any driving privileges (limited or full) and/or relicensure depending on the motorist’s driving history and any other factors they wish to consider. This discretion may be exercised despite eligibility and after the minimum statutory periods of revocation or suspension has expired. Always check with the DMV concerning your driving status before you drive. Sometimes the Court may have sent the wrong paperwork or no paperwork to the DMV. In addition, if the DMV informs you that you do not have to do the DDP but the Court does, you still have to complete the DD.