Adjunct Law Prof. Blog
LINK
I bring Sanders v. Grenadier Realty, Inc, ____Fed. Appx. _____, 2010 WL 605715 (2d Cir. Feb. 22, 2010), because it contains a nice concise summary of the new motion to dismiss standards under Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). As the court explained:
To survive a motion to dismiss, plaintiffs must “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In considering whether a claim is facially plausible, we do not accept legal conclusions as true. See Ashcroft v. Iqbal, 129 S. Ct. at 1949-50 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Thus, the conclusion that defendants discriminated against plaintiffs on account of their race and national origin in violation of . . . section[] 1982” does not state a plausible claim to relief. While paragraph 17 does allege facts consistent with a discrimination claim, i.e., that non-black residents were granted subsidies, it nevertheless “stops short of the line between possibility and plausibility of entitlement to relief,” id. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557 (internal quotation marks
omitted)), because plaintiffs do not allege any facts supporting an inference of racial animus. Accordingly, we conclude that the district court properly dismissed the § 1982 claim.
Mitchell H. Rubinstein
Chủ Nhật, 30 tháng 5, 2010
Thứ Tư, 26 tháng 5, 2010
Looted Cultural Objects Recovered in Iraq
Radio Free Europe/Radio Liberty today reports that Iraqi authorities seized ten ancient gold coins along with two paintings during a sting operation that broke up an antiquities smuggling ring.
http://www.rferl.org/content/Iraq_Says_Antiquities_Ring_Busted/2053617.html
http://www.rferl.org/content/Iraq_Says_Antiquities_Ring_Busted/2053617.html
Thứ Ba, 25 tháng 5, 2010
A Particularized Review of Bill of Particulars
To understand the need for a bill of particulars it helps to first review the history of indictments in New York:
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
Thứ Bảy, 22 tháng 5, 2010
New York DWIs and PSI Final Thoughts
On this beautiful Ithaca morning I have a few lingering thoughts concerning NY PSIs for DWIs.
The PSI (pre-sentence investigation) report is NOT a public document. Disclosure is limited to the defendant, defendant's attorney, the judge, and the prosecutor. In fact the report is usually held by the Court and can only be viewed by counsel and not copied nor circulated. Although I have had a number of Courts send me the report for viewing prior to sentencing this is more the exception than the rule.
Probation officers act as an agent of the Court. Their role is to assist the Court (the judge) in determining a fair and appropriate sentence. In certain criminal cases (other than DWIs) a client may opt for jail time in lieu of a lengthy period of probation. In NYS generally misdemeanor probation is three years and felony probation is five years. If Probation is recommended for a DWI it is usually not negotiated to a term of jail. DWI Probation (supervision) may be in addition to a term of jail but not in exchange for a term of jail.
The Purpose for probation in DWI cases is to assist the defendant in obtaining and maintaining sobriety. This specific and necessary purpose, namely to monitor (supervise) the defendant from drinking (any consumption of alcohol) or being in the presence of alcohol. A violation of probation by drinking, being around alcohol, or being in alcohol serving establishments generally results in a six month jail term. Sobriety is the goal. Treatment, classes, and rehabilitation are the means to reach and maintain an alcohol free life. With DWI probation this is taken very seriously, and there is no wiggle room for special events or for "I did not know" type excuses.
Thứ Sáu, 21 tháng 5, 2010
Understanding the New York DWI PSI (Pre-Sentence Investigation) Part Two
The PSI is a process that should be taken very seriously. Your honesty with the probation department is paramount. They will be checking and verifying any and all information provided. Sometimes referred to as "collaterals," as in collateral sources of information, the contact phone numbers and references you provide to the officer must corroborate with your statements to the officer. Lying about your previous employment, drinking, and drug use will negatively affect your report. Your being accurate and truthful with the probation officer will go a long way to ensure a favorable report.
First impressions count. Showing up on time for your appointment, being clean, neat, and ready to cooperate will start your interview off on the right foot. You may be asked to go for a drug/alcohol evaluation and/or a psychiatric evaluation. In certain situations, more than one probation interview may be necessary. Also in certain situations the probation officer may feel it is important to have a one on one discussion with some of your family members prior to writing his report.
The Pre-Sentence Report contains the following sections:
1. A Cover sheet. This has the basic facts about you and the charges.
2. Prior Criminal History. Your attitude about past behavior (whether you have accepted full responsibility for your actions) and current behavior are very important. If you have pled guilty now is NOT the time to downplay your guilt or your actions. The officer will be attempting to see if you are owning up to this crime, and how you came to be in this situation.
The two most important R's are: REMORSE and RESPONSIBILITY
3. Your Social History, and current circumstances.
Stability of home life (past and present), family and friends (support), education, employment, use of drugs and/or alcohol, involvement in any treatment/rehab programs, and mental health history and counseling.
The OVERALL EVALUATION of the officer will be based upon the following:
a. Your attitude
b. Your behavioral habits, traits, and tendencies
c. Your future interests, goals, and plans
d. Your ability to cope with your past problems and your current charges
e. Your current and past associations with people (who you hang out with)
f. Your family relationships (your support system)
ARE you STABLE?
How STABLE are you?
What can probation predict in terms of your future behavior?
In other words are you a danger to yourself or others?
Do we have a cause to be concerned?
Do you require supervision?
At the end of every report is a pink sheet entitled, " Departmental Sentence Recommendation with Supporting Reasons." NOTE: This comes from the Probation Officer's supervisor, and not from the probation officer.
Your attorney can contact probation and provide information about you as well. In instances where PSIs are ordered I commonly provide the Court, the Prosecutor, and the probation officer with information concerning my clients to ensure the best outcomes.
In the end, being up front and candid with probation is the best strategy overall.
Understanding the New York DWI PSI (Pre-Sentence Investigation)
There is not much written online concerning the process surrounding New York State's system of determining who receives a sentence of probation for a misdemeanor DWI. It is a mystery to many. I believe as a DWI defense lawyer that uncertainty is a nightmare for those going through this process. In this blog, and the next I hope to explain the procedure in simple terms.
First, the vast majority of DWI cases as well as other criminal cases in this state are negotiated with pleas. The cases that go to hearings and trials have issues that need to be addressed by either Judges and/or Juries.
If the case is resolved with a negotiated plea then the District Attorney may or may not agree (as part of the plea agreement) to waive a PSI (Pre-Sentence Investigation). What that means is that the District Attorney may or may not be seeking a term of Probation as part of the final sentencing of the Court. He may be seeking probation for your DWI because of the results of your drug/alcohol evaluation, the amount of your BAC (Blood Alcohol Concentration) at time of your arrest, a DWI involving (property or people) damages, prior criminal history, prior history of drugs and/or alcohol abuse, your age, and driving history.
For all New York State DWI Misdemeanors Probation Terms are for Three Years.
NOTE: Probation could be terminated early (less than a three year term) by your attorney filing a Motion with the Judge after a period of "good" probation. "Good" meaning a period of time in which you have no problems, no committed offenses, and/or crimes, involving the use of drugs, and/or alcohol.
A PSI is where you are interviewed by the Probation Department (usually of the County's Probation Office in the city in which you live) to determine an appropriate sentence for the crime being pled to. NOTE: If you are from Out of State, Probation can not be recommended by the department because it can not be transferred to another state or country so it unlikely that probation will be part of sentencing. Unfortunately, since the Judge and DA can not give a term of probation they may seek some jail time.
Now the Court (The Judge) can still seek a PSI (Pre-Sentence Investigation) before rendering it's sentence because ultimately the Judge must agree to "the deal" struck between both sides (Counsel for the defendant as well as Counsel for the State of New York). This can add many weeks to the process between making a deal, and having a final resolution of the matter. Sometimes PSIs (and their final report to the Court) can take four to six weeks even though the actual interview usually takes less than an hour.
The way that it works is if after a final disposition (case outcome) by negotiated plea bargain if can go one of two ways:
If the Judge and DA both agree to a CD (Conditional Discharge) then there is NO Probation and no need for a PSI.
OR
If a PSI is ordered by the Judge then Probation department will contact the defendant and set up an interview. This is a "this is your life" type of interview and review. Probation is usually for people who need supervision. Supervision normally entails being watched over with random screenings and tests for the use of drugs and alcohol. It is also likely to include some type of drug counseling/rehab/treatment program and/or mental health counseling.
In my next blog I will detail what goes into a PSI report, and how a probation determination is made.
Thứ Năm, 20 tháng 5, 2010
Major Art Theft in Paris
Several paintings were discovered stolen from the Paris Museum of Modern Art during the morning of May 20, 2010. They are of inestimable cultural and monetary value.
When a major theft such as this one occurs, it is reasonable for investigators to presume that the crime is part of a broader plan. For instance, paintings can be used as collateral for weapons purchases or as payment for sizeable drug buys. Because it is more portable and discreet to carry a canvas worth millions through an airport rather than carrying the equivalent in cash, valuable artwork can be used to move large amounts of cash without being detected. It is also reasonable for the police to assume, in the first instance, that information or assistance may have been provided by someone on the inside of the institution. As evidence develops, the police can rule in or rule out these suspicions.
I have included a list below of the stolen paintings, and links to their images on the web. If you spot any of these artworks or have any information related to the theft, you can contact your local INTERPOL central bureau. In the United States you can report any information to the FBI via the internet at https://tips.fbi.gov.
1. "Pigeon with the Peas" by Pablo Picasso news.yahoo.com/nphotos/slideshow/photo//100520/ids_photos_wl/r2288127354.jpg/
2. "Pastoral" by Henri Matisse
www.the-artfile.nl/gallery/artists/matisse/pastorale.jpg
3. "Olive Tree near Estaque" by Georges Braque
http://d.yimg.com/a/p/rids/20100520/i/r3355612611.jpg
4. "Woman with a Fan" by Amedeo Modigliani
http://news.yahoo.com/nphotos/slideshow/photo//100520/ids_photos_wl/r2748639951.jpg/
5. "Still Life with Chandeliers" by Fernand Leger
no image found
When a major theft such as this one occurs, it is reasonable for investigators to presume that the crime is part of a broader plan. For instance, paintings can be used as collateral for weapons purchases or as payment for sizeable drug buys. Because it is more portable and discreet to carry a canvas worth millions through an airport rather than carrying the equivalent in cash, valuable artwork can be used to move large amounts of cash without being detected. It is also reasonable for the police to assume, in the first instance, that information or assistance may have been provided by someone on the inside of the institution. As evidence develops, the police can rule in or rule out these suspicions.
I have included a list below of the stolen paintings, and links to their images on the web. If you spot any of these artworks or have any information related to the theft, you can contact your local INTERPOL central bureau. In the United States you can report any information to the FBI via the internet at https://tips.fbi.gov.
1. "Pigeon with the Peas" by Pablo Picasso news.yahoo.com/nphotos/slideshow/photo//100520/ids_photos_wl/r2288127354.jpg/
2. "Pastoral" by Henri Matisse
www.the-artfile.nl/gallery/artists/matisse/pastorale.jpg
3. "Olive Tree near Estaque" by Georges Braque
http://d.yimg.com/a/p/rids/20100520/i/r3355612611.jpg
4. "Woman with a Fan" by Amedeo Modigliani
http://news.yahoo.com/nphotos/slideshow/photo//100520/ids_photos_wl/r2748639951.jpg/
5. "Still Life with Chandeliers" by Fernand Leger
no image found
Thứ Hai, 17 tháng 5, 2010
Elaine P. Dine - Different Name, Same Toilet Bowl
I am sure Elaine P. Dine was a very nice lady back in the day. The successors to her recruiting outfit however have done a very fine job in defecating all over her legacy these past 10 years. (Do a thread search to pull up some of the horror stories that have occurred over the years.) It seems like the "Elaine P. Dine" moniker has worn out its welcome however, and now the Dine sewer scrounging gang is operating under the more generic sounding name of US Legal Support. Be forewarned.
Thứ Bảy, 15 tháng 5, 2010
DA Investigates Claims $40 Million Business "Stolen" With Forged Contracts
Businesswoman Says American Dream Turned to "Nightmare"
LINK
Part One of a Series
Following inquiries by The Black Star News, the District Attorney in Queens County has confirmed that his office is investigating allegations by a Guyanese immigrant that forged signatures on contracts she never signed were used to wrest control of her multi-million dollar businesses by a money lender who was at one time a prospective partner.
The immigrant, Christine Persaud, who's in her 40s, says she never signed partnership agreements with the prospective partner because of several clauses she didn't like in the proposed agreement, including one in which the money lender wanted future disputes to be arbitrated before an individual who had done some work for him in the past.
"Why would I sign a contract where someone says disputes should be taken to someone who has done some work for his family in the past?" says Persaud. She says control of her businesses, which brought in more than $10 million annually, was fraudulently snatched from her.
What's more, even though the prospective investor had only filed a claim for 50% ownership of one business, Caring Home Care, the arbitrator awarded him 100% ownership, more than $2 million in cash, and claims against a second Persaud business, records show.
"They don't even have original copies of these alleged contracts I signed," Persaud adds, referring to the documents used at arbitration to take away her businesses. "I challenge them to produce them so a forensics expert can review them."
"This is robbery," Persaud says, in an interview with The Black Star News. "I will not stop fighting until I expose the robbery and get my businesses back. This can't be allowed to happen in America. They are trying to turn my American dream into an American nightmare," she says, adding that she reported the alleged forgeries to the DA's office a year ago and provided documentation to Jonathan D. Scharf, an assistant district attorney in the Economic and Environmental Crimes Bureau.
She says her former finance manager also misappropriated nearly $200,000, according to an accountant Persaud hired; this manager is now working for the money lender who now controls the businesses Persaud founded.
"There is an ongoing investigation into the Christine Persaud case," says Helen Peterson, spokesperson at DA Richard Brown's Office, when asked about Persaud's allegations of the use of forged contracts to steal her business. "But it would be inappropriate to comment at this time."
Peterson declined to say whether the DA's office had already interviewed Persaud, the forensics expert who compared her signatures to those on the contracts, or any of the lawyers who have handled the case for her. "I am ready and willing to cooperate with the District Attorney or the U.S. Attorney," Persaud says.
Persaud estimates that her three businesses, which she built from scratch, are worth over $40 million. Caring Home Care, which provides nursing and home care services for the elderly, sick people, or those incapacitated, was founded in 1997. Persaud later started Liberty Home Care, as the business expanded, and Christine Nursing Center, for training home care
and nursing aides.
She says she now regrets the day she placed an advertisement in The New York Post in 2007, seeking payroll funding for Caring Home Care. Through the ad placement, she was introduced to a businessman named Abraham Klein.
Even though Caring alone brought in almost $9 million a year, payments for her clients took several weeks; in the meantime there was pressure to meet bi-weekly payroll, she says.
Persaud, a single mother, says at the time she was introduced to Klein, she had a new born --she now has a two and a half year old, and six month old twins, born by a surrogate mother-- so much of the negotiations for the payroll funding was done between Klein and Melquisedec Escobar, Caring's financial manager, a Philippines native whom Persaud sponsored for work papers, records show.
Klein agreed to fund the payroll, retaining 66% of the profit after all expenses cleared, while Persaud got 33%. Some financiers familiar with this line of business say these terms were overly-generous in Klein's favor.
Persaud says things initially went smoothly so she and Klein started negotiating a possible 50/50 partnership in Caring, which had about 300 employees. In addition to the payroll funding, Klein injected $100,000 as down payment on the proposed partnership, Persaud says. Since the health care industry is highly regulated, the partnership was contingent upon
Klein getting licensed by the State Department of Health, Persaud says.
However, if Klein wasn't licensed by the DOH within two years, then his $100,000 would be returned, with a 4% interest, Persaud says, and a copy of the proposed partnership agreement she says she never signed, shows.
Klein then brought his son Joel Klein and brother in law, Philip Gottehrer, to work at Caring, at his own expense, Persaud says. "I did not know they were planning to take my businesses," she says.
Persaud claims even Klein's attorney, Mendel Zilberberg, of Mendel Zilberberg & Associates, P.C., knows that the agreements enforced at arbitration were forgeries because she and an attorney who represented her during the negotiations, Samuel Rieff, had gone to Zilberberg's office at one point to sign the papers; she says she ultimately declined when Zilberberg wouldn't remove the terms she objected to.
When contacted by The Black Star News, Zilberberg declined to speak and through a spokesperson said: "We don't comment about ongoing cases." Through the spokesperson, he also declined to have questions submitted via e-mail message.
Persaud says her dispute with Klein began when he approached her in October 2008, for a $7 million line of credit through Caring Home Care, to finance expansion of a business he said he operated in China. Since she knew nothing about the business, she declined, she says.
A few months later, she learned that Klein had contacted some of her clients and identified himself as Caring's owner, she says. When she objected, he sent her a letter asking that the pair appear before the arbitrator named by Klein in the proposed contract, she says. "I was shocked when I then received the letter. I would have been happy to return his $100,000 with interest. He was not a partner or owner."
Klein has claimed the parties had signed one of the agreements on May 11, 2007, court papers show.
Rieff, the lawyer who represented Persaud during contract negotiations with Klein, later submitted an affidavit dated April 20, 2009 stating that he represented her and Caring Home Care through the end of 2008, during which time she never signed a partnership agreement.
"I was still negotiating terms of a proposed Agreement after May 17, 2007. These negotiations lasted an additional several months without an Agreement being signed," Rieff, the lawyer who represented Persaud, wrote in his affidavit.
Rieff, when contacted by The Black Star News on April 28, 2010, declined to comment about his affidavit, saying: "I don't represent her any longer and I don't comment to the media. I'm not going to answer any questions."
At the time the dispute started, Persaud had also hired another lawyer, Queens-based Eugene Levy, to handle Klein's attempt to take her to the arbitrator, Marvin Neiman, of Neiman & Mairanz, P.C., in Manhattan, whom she says Klein had proposed.
Neiman did not return a telephone message from The Black Star News seeking comment.
Levy had raised questions about the arbitration clause on what Persaud maintains was merely a proposed contract, records show. That section, referring to Persaud and Klein, said that the "parties acknowledge that Mr. Nieman represented some members of the Klein family in the past and hereby waive any conflict of interest." In yet another version of what Klein claims was also a signed document --and Persaud refutes-- the arbitration clause states that the "members acknowledge that Mr. Neiman may have represented some members of the Klein family in the past, and thereby waive any conflict of interest."
"Who in her right mind would sign a contract with that kind of language?" Persaud says. "I'm not that stupid."
Levy, the Persaud attorney wanted the issue addressed. "Unless there is a full disclosure as to your firm's representation of the Klein family we again strongly object to any 'arbitration proceeding' being held," Levy wrote to Neiman, in a letter dated March 17, 2009, and added, "There are serious jurisdictional and ethical issues involved in these contemplated
proceedings. Until the jurisdictional defects of this arbitration have been resolved our client does not submit to the authority of your office as arbitrator."
Nevertheless, in a letter dated March 18, 2009, Neiman countered: "I have reviewed the contents thereof and discovered that the statement in the arbitration clauses of the parties' agreement, that I represented members of the Klein family was incorrect as related to the Klein family in this matter, and was based on a similarity of names with former clients of
mine, so that when the issue was broached to me to serve as arbitrator in this matter, I informed the parties that I believed that I represented the Kleins in the past and that this should be known to all of the parties at the time of the execution of the agreement."
"So first he had represented the Klein family then, after my lawyer objects, suddenly he discovered that he had not represented Abraham Klein's family but another Klein? Who can believe that?" Persaud says.
Neiman also warned Levy in his letter that "if your letter is meant to convey to me that you will default in appearing at the arbitration, please be advised that you do so at your client's peril. The matter will proceed tomorrow as scheduled."
The records show that the arbitration hearing did proceed the next day, on March 19, 2009, at the offices of Neiman & Mairanz. In attendance were Neiman; Abraham Klein and his attorneys, Mendel Zilberberg, and Marvin L. Tenzer, of Tenzer & Lunin, LLP; and, by telephone was Paul Salazar, also of Zilberberg's firm.
The records also show that Zilberberg had asked that the transcripts be sealed. Persaud and her attorney Levy, who had challenged Neiman's qualification to be a neutral arbiter, were not there.
In addition to being awarded control of Caring, the most lucrative of Persaud's three businesses, Klein was also awarded $2,172,607.58, which he claimed he was owed by Caring even though he testified that he had put in about $800,000 in Caring and about $180,000 in Liberty Home Care, records show.
Klein was also awarded 50% claim on Liberty Home Care; he told Neiman during the arbitration that Persaud had also verbally agreed that he would be a partner in Liberty.
"Liberty was not even part of the dispute," Persaud says. "Klein loaned me about $150,00 to launch Liberty when things were still going well. There was no partnership agreement for Liberty because it was a loan. But Neiman gave him Liberty too, without even the benefit of a forged contract," Persaud says. "At least Caring was taken away with forged contracts. This is not nice."
During the arbitration, according to the transcript, Neiman had asked Klein how the money he said he took from Caring to give Persaud, for Liberty, was accounted for, the record shows. Neiman said, "if the money came out of Caring, how is it recorded on Caring's books? Is it recorded as an accrual of your--as a reduction of your liability or is it recorded as investment from Caring?"
"I don't exactly know" Klein had responded.
At the arbitration, three documents were presented as constituting the partnership agreement.
The Black Star News has reviewed copies of the disputed documents. Non of the three documents' signature page refers to an agreement between Klein and Persaud; but rather, Persaud and "X1". Presumably the signatures next to "X1" belongs to Klein.
On the final page of one of the documents, "Minutes of Meeting of Board of Directors of Better Hope Home Care Agency, Inc." the typed entity above Persaud's purported signature is identified as "Better Hope Home Care Agency, Inc" and not Caring Home Care.
Even Better Hope is then crossed out with a pen and substituted with "All Borough Community Home Care Inc." Then, there's a signature Persaud maintains is not hers; and there is a signature next to "X1"; presumably Klein's. The space underneath "Attest," presumably where a witness would have signed, is blank. There is no date; there is no notary stamp or
signature.
What's more, the three signatures attributed to Persaud, in the three different documents, all look different from each other. "Maybe they were forging by committee," Persaud says.
Robert F. Bey, president of ALR Forensics, in Rockville Centre, New York, examined the three documents against samples of her signature provided by Persaud and wrote, in a report dated May 11, 2009, that the "range of variation" in
the signature on the documents "contains some significant differences" compared to Persaud's known handwriting, he said.
He concluded, after reviewing additional Persaud signatures that it was "probable" that Persaud was "not the author of the signature" on the documents.
Bey also wondered, in an interview, why no originals of the three documents exist. "These are pretty important documents I must say--all of a sudden all three of them disappear and we just have copies? That's not logical to me."
"There are some indications in the questioned signatures that there may be some hesitation; maybe some slow writing which would be indicative of a forged signature," he said.
Bey, has been subpoenaed by Klein's attorney, Zilberberg, to produce the notes of all the work he's done on behalf of Persaud, on May 18, 2010 at Zilberberg's offices. He said when he asked Zilberberg about originals of the disputed documents, he was told they would be produced if needed.
Separately, Persaud says she informed the Department of Health (DOH) about the alleged fraud but that officials she spoke with took no action. Since Klein wasn't licensed by DOH, Neiman granted him power of attorney to sign Persaud's name, on documents that required DOH licensing, and for anything that he required to operate Caring.
"I'm sorry, but at this time we at the State Health Department will not be able to comment on the questions you have raised about Caring Home Care," said Tom Allocco, a department spokesman, when told by The Black Star that Persaud's allegations about the forged contracts was being investigated by the DA in Queens County.
With respect to the licensing, the Public Health Council had approved a change in Caring's ownership from Persaud to Caring LHCSA, LLC dba Caring Home Care "with Abraham Klein as the sole member of the LLC." He declined to comment when asked how the DA's probe might affect the matter. "How can they make such an approval based on fraud and while my case has now been appealed?" Persaud says.
After the March 19, 2009 session before Neiman, he returned his ruling in Klein's favor on March 31, and Klein moved to have the award confirmed in State Supreme Court in King's County. A hearing date of April 17 was set before Justice Arthur M. Schack.
On April 15, Levy, the Persaud attorney, left a message on the voicemail system in Zilberberg's office, which was closed for Passover observance, asking for an adjournment because he had another case to handle on April 17.
On the day before the hearing before Judge Schack, Levy had his secretary April Fischer, fax an affirmation of actual engagement to the judge's chambers stating that Levy was arguing another case, Pena vs. Occhiogrosso, on April 17, in State Supreme Court in Queens. (It later turns out that Levy had made a mistake; the proper title on his case was actually Pena vs. Pena, a matrimonial matter, on that same date before Judge Sidney Strauss, Index 025075/2006, records show).
Fischer later filed a sworn affidavit stating that she spoke with a member of Judge Schack's staff and was told that the proceeding would be adjourned until June 19, 2009.
Records also show that Zilberberg knew of Levy's request for an adjournement by the morning of April 17; he told his secretary to inform Levy that he was declining.
So, on April 17, 2009, the hearing did proceed before Judge Schack; a judgment was entered on default. Schack later wrote that Levy's affirmation of actual engagement had been defective because it had the incorrect case, no caption, and it didn't provide the name of the judge on the case.
Levy filed a motion to have the default vacated, with corrected papers; Judge Schack declined.
"So I lost my business, twice, without even having my day in court," says Persaud. "Why are they afraid of the evidence? Why not let it be decided on its merits through a trial?"
The Black Star News did not get a response to questions sent via e-mail message to the Unified Court System's spokesperson.
Persaud believes that Klein was assisted in seizing control of her business by Melquisedec Escobar, her former financial manager. She says an accountant discovered that Escobar, who wrote an affidavit claiming that he witnessed Persaud signing a partnership agreement with Klein, had allegedly embezzled at least $191,573 from Caring and Liberty. "Based on
the results of our examination, these actions, if proved in a court of law, could constitute a violation of criminal and/or civil law," the certified public accountant, Ibe Moses Nwankpa, wrote in a report dated March 19, 2009.
According to the accountant, Escobar had been authorizing checks and withdrawal slips to himself. The accountant wrote that Escobar had allegedly diverted $45,073 from Caring; $125,000 from Liberty; and an additional $21,500 were payments made to himself through an account he opened at Citibank, Liberty Ave., Richmond Hill, N.Y., 11419, under the name Mel Escobar/Caring. Most of these alleged thefts occurred between January 2007 and December 2008, the accountant wrote.
Nwankpa did not return a phone message seeking comment from The Black Star.
Escobar was made monitor at Caring by Neiman, and given a raise; he now works for Klein at Caring. Separately, Rabbi Jacob Spitzer, who is heavily involved in healthcare issues, was made the receiver shortly after the Neiman award.
"I don't know about it. You have to speak with our lawyer," Escobar said, when contacted by The Black Star News by telephone and asked about Persaud's allegations that her signatures had been forged on the contracts.
When reminded that he had signed an affidavit dated April 14, 2009, submitted to State Supreme Court in King's County in support of Klein's motion to have the Neiman award confirmed, he said, before hanging up the phone: "I don't know what you're asking. Goodbye."
Persaud says Escobar had been able to use her signature without her knowledge because he had once had her sign a one-page power of attorney, so he could handle Caring's taxes with the Internal Revenue Service. She says when she discovered the alleged Escobar thefts, she wrote to the Department of Homeland Security's U.S. Citizenship and Immigration Services on April 20, 2009, asking that Escobar's work papers be revoked.
Homeland Security wrote back on April 29, 2009 to inform Persaud that Escobar's work visa had been revoked, the record shows.
"Then I got a contempt order from Judge Schack saying I should have Escobar's work status restored within 24 hours," Persaud says, adding that she did not comply. "I thought the right thing to do is to report a theft."
"This judge is totally against me," Persaud said. "I don't know why he won't recuse himself. Don't I have any rights?"
During a recent hearing before in his chambers, in the presence of Persaud and the opposing counsel Judge Schack noted that Persaud had filed a complaint about him so everything would now have to be done by the book, she said. He was referring to a letter a friend wrote on her behalf, complaining about the judge to Ann Pau, the chief Administrative Judge, New York Unified Court System, Persaud said.
Persaud has been holed up at Liberty Home Care since Klein took total control of Caring a year ago. She says in the last few weeks, Klein's attorneys have been garnishing money from Liberty's clients --even though Neiman had awarded him a 50% claim and total control was to revert to Persaud once Klein was in control of Caring. She says Klein has been
sending letters to Liberty's clients, garnishing funds for services that her workers have already performed.
One of the notices to garnishee that Persaud says is being sent to Liberty's clients bears the letterhead of a City Marshall in Queens, Bruce Frankenberg; with Christine Persaud, and Caring Home Care Agency, as the debtor; Abraham Klein, as the creditor; and, Mendel Zilberberg & Associates, as attorneys for the creditor.
Persaud says if Judge Schack ordered an accounting, the records would show that Klein has more than recovered the $2,172,607.58 "wrongfully awarded" to him, through Caring's revenue. "There was $2.5 million in receivables when the business was taken from me, which more than pays for the gift Neiman gave to Klein," Persaud says. "Why is Judge Schack still allowing Klein to divert my clients when he should have no more interest in Liberty Home Care?"
Neiman's March 31, 2009 decision and award states, "..at such time that Klein is approved as the operator of Caring by the agencies with jurisdiction, Persaud shall then become the owner of Liberty free and clear of any equity claims of Klein therein."
It's unclear under what jurisdiction or authority that Klein continues to interfere with Liberty's business, Persaud says. "He places illegal garnishes on money due to Liberty," she says. "He is making me more determined to expose the truth."
Another attorney who is working on Persaud's case, Lawrence E. Kaye, says, of Schack, "The judge is essentially punishing her for the mistakes of her lawyer."
Persaud says the year-long tussle with Klein has ruined her health. She says since having intestinal surgery last July, she hasn't been able to heal due to the stress. Persaud takes 650 milligrams of Percocet (oxycodone) every four to six hours, to deal with acute severe pain. Still, even though her doctor, Usukumah E. Usukumah, wrote a note on May 10, 2010, Judge Schack has ordered Persaud to appear for deposition before Klein's attorney Zilberberg, who is seeking to uncover assets; the deposition, which started last week, continues tomorrow at the court house in King's County.
Dr. Usukumah, an obstetrician and gynecologist, wrote that "the medication, a narcotic, will definitely interfere with her sensorium and ability to rationally reason. She should be excused from any legal responsibilites until she is clinically well to do so."
In the meantime, another attorney, Stephen Preziosi, filed an appeal on May 3, 2010 to the Second Department, seeking a reversal of Judge Schack's refusal to vacate his confirmation of the Neiman award to Klein.
"He issued a default judgment saying the other side didn't show up when the other side had sent a sworn statement saying I'm engaged in the court room," Preziosi said. "Generally any judge or another attorney would extend the courtesy to
another attorney saying 'okay, you're engaged in anther case, okay so we'll adjourn. We'll put it over to another date when you can be here and litigate on the merits rather than find by default.' Default judgments are frowned upon by all the courts in New York. The courts prefer to judge and decide cases on their merits based on the arguments of both parties not by
default. That's right out of the case law."
Persaud is popular in the Richmond Hill, Queens, neighborhood where she runs her businesses and a few years ago, she started a food pantry, handing out groceries to needy families every Friday afternoon, in front of her business. She says in the beginning, about 20 people showed up; now she hands out food to about 500 people each Friday afternoon.
Last Friday, several of these families showed up to demonstrate in her support, with some men and women on wheelchairs, holding signs that read "Hands off Liberty," and "Stop Feasting On Other People's Labor."
Persaud said: "I don't know how I can help them if they steal all my businesses."
The Black Star News is an investigative newspaper. Please send e-mail messages to milton@blackstarnews.com or call (212) 481-7745 if you have documentation about cases that need to be investigated.
"Speaking Truth To Empower."
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Part One of a Series
Following inquiries by The Black Star News, the District Attorney in Queens County has confirmed that his office is investigating allegations by a Guyanese immigrant that forged signatures on contracts she never signed were used to wrest control of her multi-million dollar businesses by a money lender who was at one time a prospective partner.
The immigrant, Christine Persaud, who's in her 40s, says she never signed partnership agreements with the prospective partner because of several clauses she didn't like in the proposed agreement, including one in which the money lender wanted future disputes to be arbitrated before an individual who had done some work for him in the past.
"Why would I sign a contract where someone says disputes should be taken to someone who has done some work for his family in the past?" says Persaud. She says control of her businesses, which brought in more than $10 million annually, was fraudulently snatched from her.
What's more, even though the prospective investor had only filed a claim for 50% ownership of one business, Caring Home Care, the arbitrator awarded him 100% ownership, more than $2 million in cash, and claims against a second Persaud business, records show.
"They don't even have original copies of these alleged contracts I signed," Persaud adds, referring to the documents used at arbitration to take away her businesses. "I challenge them to produce them so a forensics expert can review them."
"This is robbery," Persaud says, in an interview with The Black Star News. "I will not stop fighting until I expose the robbery and get my businesses back. This can't be allowed to happen in America. They are trying to turn my American dream into an American nightmare," she says, adding that she reported the alleged forgeries to the DA's office a year ago and provided documentation to Jonathan D. Scharf, an assistant district attorney in the Economic and Environmental Crimes Bureau.
She says her former finance manager also misappropriated nearly $200,000, according to an accountant Persaud hired; this manager is now working for the money lender who now controls the businesses Persaud founded.
"There is an ongoing investigation into the Christine Persaud case," says Helen Peterson, spokesperson at DA Richard Brown's Office, when asked about Persaud's allegations of the use of forged contracts to steal her business. "But it would be inappropriate to comment at this time."
Peterson declined to say whether the DA's office had already interviewed Persaud, the forensics expert who compared her signatures to those on the contracts, or any of the lawyers who have handled the case for her. "I am ready and willing to cooperate with the District Attorney or the U.S. Attorney," Persaud says.
Persaud estimates that her three businesses, which she built from scratch, are worth over $40 million. Caring Home Care, which provides nursing and home care services for the elderly, sick people, or those incapacitated, was founded in 1997. Persaud later started Liberty Home Care, as the business expanded, and Christine Nursing Center, for training home care
and nursing aides.
She says she now regrets the day she placed an advertisement in The New York Post in 2007, seeking payroll funding for Caring Home Care. Through the ad placement, she was introduced to a businessman named Abraham Klein.
Even though Caring alone brought in almost $9 million a year, payments for her clients took several weeks; in the meantime there was pressure to meet bi-weekly payroll, she says.
Persaud, a single mother, says at the time she was introduced to Klein, she had a new born --she now has a two and a half year old, and six month old twins, born by a surrogate mother-- so much of the negotiations for the payroll funding was done between Klein and Melquisedec Escobar, Caring's financial manager, a Philippines native whom Persaud sponsored for work papers, records show.
Klein agreed to fund the payroll, retaining 66% of the profit after all expenses cleared, while Persaud got 33%. Some financiers familiar with this line of business say these terms were overly-generous in Klein's favor.
Persaud says things initially went smoothly so she and Klein started negotiating a possible 50/50 partnership in Caring, which had about 300 employees. In addition to the payroll funding, Klein injected $100,000 as down payment on the proposed partnership, Persaud says. Since the health care industry is highly regulated, the partnership was contingent upon
Klein getting licensed by the State Department of Health, Persaud says.
However, if Klein wasn't licensed by the DOH within two years, then his $100,000 would be returned, with a 4% interest, Persaud says, and a copy of the proposed partnership agreement she says she never signed, shows.
Klein then brought his son Joel Klein and brother in law, Philip Gottehrer, to work at Caring, at his own expense, Persaud says. "I did not know they were planning to take my businesses," she says.
Persaud claims even Klein's attorney, Mendel Zilberberg, of Mendel Zilberberg & Associates, P.C., knows that the agreements enforced at arbitration were forgeries because she and an attorney who represented her during the negotiations, Samuel Rieff, had gone to Zilberberg's office at one point to sign the papers; she says she ultimately declined when Zilberberg wouldn't remove the terms she objected to.
When contacted by The Black Star News, Zilberberg declined to speak and through a spokesperson said: "We don't comment about ongoing cases." Through the spokesperson, he also declined to have questions submitted via e-mail message.
Persaud says her dispute with Klein began when he approached her in October 2008, for a $7 million line of credit through Caring Home Care, to finance expansion of a business he said he operated in China. Since she knew nothing about the business, she declined, she says.
A few months later, she learned that Klein had contacted some of her clients and identified himself as Caring's owner, she says. When she objected, he sent her a letter asking that the pair appear before the arbitrator named by Klein in the proposed contract, she says. "I was shocked when I then received the letter. I would have been happy to return his $100,000 with interest. He was not a partner or owner."
Klein has claimed the parties had signed one of the agreements on May 11, 2007, court papers show.
Rieff, the lawyer who represented Persaud during contract negotiations with Klein, later submitted an affidavit dated April 20, 2009 stating that he represented her and Caring Home Care through the end of 2008, during which time she never signed a partnership agreement.
"I was still negotiating terms of a proposed Agreement after May 17, 2007. These negotiations lasted an additional several months without an Agreement being signed," Rieff, the lawyer who represented Persaud, wrote in his affidavit.
Rieff, when contacted by The Black Star News on April 28, 2010, declined to comment about his affidavit, saying: "I don't represent her any longer and I don't comment to the media. I'm not going to answer any questions."
At the time the dispute started, Persaud had also hired another lawyer, Queens-based Eugene Levy, to handle Klein's attempt to take her to the arbitrator, Marvin Neiman, of Neiman & Mairanz, P.C., in Manhattan, whom she says Klein had proposed.
Neiman did not return a telephone message from The Black Star News seeking comment.
Levy had raised questions about the arbitration clause on what Persaud maintains was merely a proposed contract, records show. That section, referring to Persaud and Klein, said that the "parties acknowledge that Mr. Nieman represented some members of the Klein family in the past and hereby waive any conflict of interest." In yet another version of what Klein claims was also a signed document --and Persaud refutes-- the arbitration clause states that the "members acknowledge that Mr. Neiman may have represented some members of the Klein family in the past, and thereby waive any conflict of interest."
"Who in her right mind would sign a contract with that kind of language?" Persaud says. "I'm not that stupid."
Levy, the Persaud attorney wanted the issue addressed. "Unless there is a full disclosure as to your firm's representation of the Klein family we again strongly object to any 'arbitration proceeding' being held," Levy wrote to Neiman, in a letter dated March 17, 2009, and added, "There are serious jurisdictional and ethical issues involved in these contemplated
proceedings. Until the jurisdictional defects of this arbitration have been resolved our client does not submit to the authority of your office as arbitrator."
Nevertheless, in a letter dated March 18, 2009, Neiman countered: "I have reviewed the contents thereof and discovered that the statement in the arbitration clauses of the parties' agreement, that I represented members of the Klein family was incorrect as related to the Klein family in this matter, and was based on a similarity of names with former clients of
mine, so that when the issue was broached to me to serve as arbitrator in this matter, I informed the parties that I believed that I represented the Kleins in the past and that this should be known to all of the parties at the time of the execution of the agreement."
"So first he had represented the Klein family then, after my lawyer objects, suddenly he discovered that he had not represented Abraham Klein's family but another Klein? Who can believe that?" Persaud says.
Neiman also warned Levy in his letter that "if your letter is meant to convey to me that you will default in appearing at the arbitration, please be advised that you do so at your client's peril. The matter will proceed tomorrow as scheduled."
The records show that the arbitration hearing did proceed the next day, on March 19, 2009, at the offices of Neiman & Mairanz. In attendance were Neiman; Abraham Klein and his attorneys, Mendel Zilberberg, and Marvin L. Tenzer, of Tenzer & Lunin, LLP; and, by telephone was Paul Salazar, also of Zilberberg's firm.
The records also show that Zilberberg had asked that the transcripts be sealed. Persaud and her attorney Levy, who had challenged Neiman's qualification to be a neutral arbiter, were not there.
In addition to being awarded control of Caring, the most lucrative of Persaud's three businesses, Klein was also awarded $2,172,607.58, which he claimed he was owed by Caring even though he testified that he had put in about $800,000 in Caring and about $180,000 in Liberty Home Care, records show.
Klein was also awarded 50% claim on Liberty Home Care; he told Neiman during the arbitration that Persaud had also verbally agreed that he would be a partner in Liberty.
"Liberty was not even part of the dispute," Persaud says. "Klein loaned me about $150,00 to launch Liberty when things were still going well. There was no partnership agreement for Liberty because it was a loan. But Neiman gave him Liberty too, without even the benefit of a forged contract," Persaud says. "At least Caring was taken away with forged contracts. This is not nice."
During the arbitration, according to the transcript, Neiman had asked Klein how the money he said he took from Caring to give Persaud, for Liberty, was accounted for, the record shows. Neiman said, "if the money came out of Caring, how is it recorded on Caring's books? Is it recorded as an accrual of your--as a reduction of your liability or is it recorded as investment from Caring?"
"I don't exactly know" Klein had responded.
At the arbitration, three documents were presented as constituting the partnership agreement.
The Black Star News has reviewed copies of the disputed documents. Non of the three documents' signature page refers to an agreement between Klein and Persaud; but rather, Persaud and "X1". Presumably the signatures next to "X1" belongs to Klein.
On the final page of one of the documents, "Minutes of Meeting of Board of Directors of Better Hope Home Care Agency, Inc." the typed entity above Persaud's purported signature is identified as "Better Hope Home Care Agency, Inc" and not Caring Home Care.
Even Better Hope is then crossed out with a pen and substituted with "All Borough Community Home Care Inc." Then, there's a signature Persaud maintains is not hers; and there is a signature next to "X1"; presumably Klein's. The space underneath "Attest," presumably where a witness would have signed, is blank. There is no date; there is no notary stamp or
signature.
What's more, the three signatures attributed to Persaud, in the three different documents, all look different from each other. "Maybe they were forging by committee," Persaud says.
Robert F. Bey, president of ALR Forensics, in Rockville Centre, New York, examined the three documents against samples of her signature provided by Persaud and wrote, in a report dated May 11, 2009, that the "range of variation" in
the signature on the documents "contains some significant differences" compared to Persaud's known handwriting, he said.
He concluded, after reviewing additional Persaud signatures that it was "probable" that Persaud was "not the author of the signature" on the documents.
Bey also wondered, in an interview, why no originals of the three documents exist. "These are pretty important documents I must say--all of a sudden all three of them disappear and we just have copies? That's not logical to me."
"There are some indications in the questioned signatures that there may be some hesitation; maybe some slow writing which would be indicative of a forged signature," he said.
Bey, has been subpoenaed by Klein's attorney, Zilberberg, to produce the notes of all the work he's done on behalf of Persaud, on May 18, 2010 at Zilberberg's offices. He said when he asked Zilberberg about originals of the disputed documents, he was told they would be produced if needed.
Separately, Persaud says she informed the Department of Health (DOH) about the alleged fraud but that officials she spoke with took no action. Since Klein wasn't licensed by DOH, Neiman granted him power of attorney to sign Persaud's name, on documents that required DOH licensing, and for anything that he required to operate Caring.
"I'm sorry, but at this time we at the State Health Department will not be able to comment on the questions you have raised about Caring Home Care," said Tom Allocco, a department spokesman, when told by The Black Star that Persaud's allegations about the forged contracts was being investigated by the DA in Queens County.
With respect to the licensing, the Public Health Council had approved a change in Caring's ownership from Persaud to Caring LHCSA, LLC dba Caring Home Care "with Abraham Klein as the sole member of the LLC." He declined to comment when asked how the DA's probe might affect the matter. "How can they make such an approval based on fraud and while my case has now been appealed?" Persaud says.
After the March 19, 2009 session before Neiman, he returned his ruling in Klein's favor on March 31, and Klein moved to have the award confirmed in State Supreme Court in King's County. A hearing date of April 17 was set before Justice Arthur M. Schack.
On April 15, Levy, the Persaud attorney, left a message on the voicemail system in Zilberberg's office, which was closed for Passover observance, asking for an adjournment because he had another case to handle on April 17.
On the day before the hearing before Judge Schack, Levy had his secretary April Fischer, fax an affirmation of actual engagement to the judge's chambers stating that Levy was arguing another case, Pena vs. Occhiogrosso, on April 17, in State Supreme Court in Queens. (It later turns out that Levy had made a mistake; the proper title on his case was actually Pena vs. Pena, a matrimonial matter, on that same date before Judge Sidney Strauss, Index 025075/2006, records show).
Fischer later filed a sworn affidavit stating that she spoke with a member of Judge Schack's staff and was told that the proceeding would be adjourned until June 19, 2009.
Records also show that Zilberberg knew of Levy's request for an adjournement by the morning of April 17; he told his secretary to inform Levy that he was declining.
So, on April 17, 2009, the hearing did proceed before Judge Schack; a judgment was entered on default. Schack later wrote that Levy's affirmation of actual engagement had been defective because it had the incorrect case, no caption, and it didn't provide the name of the judge on the case.
Levy filed a motion to have the default vacated, with corrected papers; Judge Schack declined.
"So I lost my business, twice, without even having my day in court," says Persaud. "Why are they afraid of the evidence? Why not let it be decided on its merits through a trial?"
The Black Star News did not get a response to questions sent via e-mail message to the Unified Court System's spokesperson.
Persaud believes that Klein was assisted in seizing control of her business by Melquisedec Escobar, her former financial manager. She says an accountant discovered that Escobar, who wrote an affidavit claiming that he witnessed Persaud signing a partnership agreement with Klein, had allegedly embezzled at least $191,573 from Caring and Liberty. "Based on
the results of our examination, these actions, if proved in a court of law, could constitute a violation of criminal and/or civil law," the certified public accountant, Ibe Moses Nwankpa, wrote in a report dated March 19, 2009.
According to the accountant, Escobar had been authorizing checks and withdrawal slips to himself. The accountant wrote that Escobar had allegedly diverted $45,073 from Caring; $125,000 from Liberty; and an additional $21,500 were payments made to himself through an account he opened at Citibank, Liberty Ave., Richmond Hill, N.Y., 11419, under the name Mel Escobar/Caring. Most of these alleged thefts occurred between January 2007 and December 2008, the accountant wrote.
Nwankpa did not return a phone message seeking comment from The Black Star.
Escobar was made monitor at Caring by Neiman, and given a raise; he now works for Klein at Caring. Separately, Rabbi Jacob Spitzer, who is heavily involved in healthcare issues, was made the receiver shortly after the Neiman award.
"I don't know about it. You have to speak with our lawyer," Escobar said, when contacted by The Black Star News by telephone and asked about Persaud's allegations that her signatures had been forged on the contracts.
When reminded that he had signed an affidavit dated April 14, 2009, submitted to State Supreme Court in King's County in support of Klein's motion to have the Neiman award confirmed, he said, before hanging up the phone: "I don't know what you're asking. Goodbye."
Persaud says Escobar had been able to use her signature without her knowledge because he had once had her sign a one-page power of attorney, so he could handle Caring's taxes with the Internal Revenue Service. She says when she discovered the alleged Escobar thefts, she wrote to the Department of Homeland Security's U.S. Citizenship and Immigration Services on April 20, 2009, asking that Escobar's work papers be revoked.
Homeland Security wrote back on April 29, 2009 to inform Persaud that Escobar's work visa had been revoked, the record shows.
"Then I got a contempt order from Judge Schack saying I should have Escobar's work status restored within 24 hours," Persaud says, adding that she did not comply. "I thought the right thing to do is to report a theft."
"This judge is totally against me," Persaud said. "I don't know why he won't recuse himself. Don't I have any rights?"
During a recent hearing before in his chambers, in the presence of Persaud and the opposing counsel Judge Schack noted that Persaud had filed a complaint about him so everything would now have to be done by the book, she said. He was referring to a letter a friend wrote on her behalf, complaining about the judge to Ann Pau, the chief Administrative Judge, New York Unified Court System, Persaud said.
Persaud has been holed up at Liberty Home Care since Klein took total control of Caring a year ago. She says in the last few weeks, Klein's attorneys have been garnishing money from Liberty's clients --even though Neiman had awarded him a 50% claim and total control was to revert to Persaud once Klein was in control of Caring. She says Klein has been
sending letters to Liberty's clients, garnishing funds for services that her workers have already performed.
One of the notices to garnishee that Persaud says is being sent to Liberty's clients bears the letterhead of a City Marshall in Queens, Bruce Frankenberg; with Christine Persaud, and Caring Home Care Agency, as the debtor; Abraham Klein, as the creditor; and, Mendel Zilberberg & Associates, as attorneys for the creditor.
Persaud says if Judge Schack ordered an accounting, the records would show that Klein has more than recovered the $2,172,607.58 "wrongfully awarded" to him, through Caring's revenue. "There was $2.5 million in receivables when the business was taken from me, which more than pays for the gift Neiman gave to Klein," Persaud says. "Why is Judge Schack still allowing Klein to divert my clients when he should have no more interest in Liberty Home Care?"
Neiman's March 31, 2009 decision and award states, "..at such time that Klein is approved as the operator of Caring by the agencies with jurisdiction, Persaud shall then become the owner of Liberty free and clear of any equity claims of Klein therein."
It's unclear under what jurisdiction or authority that Klein continues to interfere with Liberty's business, Persaud says. "He places illegal garnishes on money due to Liberty," she says. "He is making me more determined to expose the truth."
Another attorney who is working on Persaud's case, Lawrence E. Kaye, says, of Schack, "The judge is essentially punishing her for the mistakes of her lawyer."
Persaud says the year-long tussle with Klein has ruined her health. She says since having intestinal surgery last July, she hasn't been able to heal due to the stress. Persaud takes 650 milligrams of Percocet (oxycodone) every four to six hours, to deal with acute severe pain. Still, even though her doctor, Usukumah E. Usukumah, wrote a note on May 10, 2010, Judge Schack has ordered Persaud to appear for deposition before Klein's attorney Zilberberg, who is seeking to uncover assets; the deposition, which started last week, continues tomorrow at the court house in King's County.
Dr. Usukumah, an obstetrician and gynecologist, wrote that "the medication, a narcotic, will definitely interfere with her sensorium and ability to rationally reason. She should be excused from any legal responsibilites until she is clinically well to do so."
In the meantime, another attorney, Stephen Preziosi, filed an appeal on May 3, 2010 to the Second Department, seeking a reversal of Judge Schack's refusal to vacate his confirmation of the Neiman award to Klein.
"He issued a default judgment saying the other side didn't show up when the other side had sent a sworn statement saying I'm engaged in the court room," Preziosi said. "Generally any judge or another attorney would extend the courtesy to
another attorney saying 'okay, you're engaged in anther case, okay so we'll adjourn. We'll put it over to another date when you can be here and litigate on the merits rather than find by default.' Default judgments are frowned upon by all the courts in New York. The courts prefer to judge and decide cases on their merits based on the arguments of both parties not by
default. That's right out of the case law."
Persaud is popular in the Richmond Hill, Queens, neighborhood where she runs her businesses and a few years ago, she started a food pantry, handing out groceries to needy families every Friday afternoon, in front of her business. She says in the beginning, about 20 people showed up; now she hands out food to about 500 people each Friday afternoon.
Last Friday, several of these families showed up to demonstrate in her support, with some men and women on wheelchairs, holding signs that read "Hands off Liberty," and "Stop Feasting On Other People's Labor."
Persaud said: "I don't know how I can help them if they steal all my businesses."
The Black Star News is an investigative newspaper. Please send e-mail messages to milton@blackstarnews.com or call (212) 481-7745 if you have documentation about cases that need to be investigated.
"Speaking Truth To Empower."
Thứ Sáu, 14 tháng 5, 2010
Contract Attorney Coordinator At Fitzpatrick Cella Not A Fan Of Your Comments
"I would appreciate it if you would remove any negative responses regarding me. If not, I will be taking legal action against you immediately. I can provide your my attorneys name and contact information, he asked me to contact you first and to kindly ask you to remove the two posts about me. Please contact me with any questions. Thank you for your anticipated cooperation."
Thứ Ba, 11 tháng 5, 2010
Court of Appeals Refuses to Permit Vacatur of Plea where agreed upon sentence unlawfully severe
People v Backus, decided today, is one of those short Court of Appeals decisions which seem innocuous, but cryptic, until you read the decision below. The Court of Appeals held simply that the appellate division should be reversed and that the People were not permitted to move to vacate the plea, noting inter alia that the prosecution did not appeal.
On review of the decision below, however, it looks important. Three Fourth Department judges had held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.
The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up. It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.
This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.
Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.
On review of the decision below, however, it looks important. Three Fourth Department judges had held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.
The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up. It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.
This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.
Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.
Thứ Sáu, 7 tháng 5, 2010
12 Good Reasons Not to Represent Yourself for a New York DWI
I love practicing law in an area filled with many colleges and universities. Ithaca, NY has Ithaca College and Cornell University and my practice focuses on DWI defense within 50 square miles of Ithaca. Over the years I have represented many students and professors who attended SUNY Binghamton, SUNY Cortland, University of Buffalo, Keuka College, TC3, New York Chiropractic College, Syracuse University, etc. The Finger Lakes region also draws people from all over the country for college events and games, recreational activities, and conferences.
In my view, higher education and drinking seem to go together like spaghetti and meatballs. Like it or not people like to drink. I enjoy drinking. There is no law against drinking and driving just driving while impaired or intoxicated. College can be stressful because thinking is the hardest work there is. Writing voluminous papers (often expounding on topics no one cares about), reading (usually very dry material), and taking exams (that play with your mind) is not always fun times.
Alcohol is the most common, legal, and socially acceptable drug we have. Some of my best college memories involved sharing a drink with my friends and fraternity brothers. After having been through many years of college between my undergraduate B.S. in Human Biology, my Chiropractic education, and then law school I have seen the use and misuse of drugs and alcohol. Mr. Mackie may say "drugs are baddd," but I do not believe that drugs or alcohol are bad. They have their place, much like everything else.
I have had a lot of very smart clients. Some with Masters degrees, and Phds in very hard subject areas. They are as a group highly intelligent, motivated, able to research, understand, and apply knowledge at a level beyond the average person.
Which brings me to my burning question of the day,
Should these People represent themselves? In other words proceed, "pro se"?
I will start out by stating a clear and unequivocal NO! and then give you my twelve reasons.
1. If you are embroiled in something personally it is impossible to remain objective. Distance gives perspective, balance, and non emotional (clear) judgment.
2. Most even very intelligent people do not understand the legal system. Even relatively simple Burdens of proof between license issues (administrative) and criminal cases are different.
3. Many Attorneys in 2010 have to specialize and focus in particular areas of law.
The attorney that understands and spends years practicing primarily divorce law will not know how to handle even a speeding ticket let alone DWI charges.
4. Different areas of the country, state, county, city have local rules and customs.
How a Judge, Court, or Prosecutor proceeds with a DWI case in one part of the state may differ greatly by how they handle it in another part of the state. A DWI in Manhattan uses a different breath machine, the Intoxilyzer 8000 versus the Datamaster and Draeger Alcotest (State Police) in Upstate New York.
5. There are usually collateral issues (ie. license) that need to be addressed.
Dealing with the DMV and ALJs (Administrative Law Judges) at DMV hearings is another potential aspect of DWI cases that is overlooked by lay people.
6. There are often pragmatic issues that need to be thought through. How is your case going to affect an out of state license? What are the potential penalties and future ramifications to your specific job or profession?
7. If your case requires hearings, motions, and a trial what then? Are you certified in Field Sobriety testing? Are you familiar with the forensic science behind Breath testing? Have you ever cross examined a police officer? Have you ever presented evidence? Have you ever picked a jury?
8. Would you know what to look for after you obtain the police reports, breath test documents, and other discovery? Have you read many of these? Do you understand police procedures and protocols? Would you be able to pick out problems with the processing of your case?
9. Would you know what was missing from police reports and other documents?
What's not there is as important as what is there. Can you read in between the lines?
10. Is it possible for you to look over one case (your own) in a vacuum and have any insight, perspective, and/or place it on the spectrum in comparison to any other cases? Do you have a firm grasp of current DWI case law? Can you pick out the legal issues and research them? Can you spot any potential defenses?
10. Seasoned attorneys even hire attorneys to represent them and their families.
What legal background or training do you possess? Have you had any prior experience representing anyone legally?
12. Do you believe that the Government prosecutor will negotiate with you fairly, in good faith, and the same way as if you were represented by an attorney?
Do you think you are on even ground when talking with the district attorney? Does he know more about your situation than you do?
It is often said that people who represent themselves have a fool for a client, don't be foolish get the best lawyer you can afford.
Thứ Năm, 6 tháng 5, 2010
The Lexolution Chicken Coop Gets Another Visit From The Fire Marshal
I heard that Lexolution tried to put up to 60 or 80 contractors in their tiny space in DC on F St. If, you've seen the space then you'd understand how crazy it is. I wouldn't think that it could hold more that 35-40 at the most - and that would be pushing it. Attorneys were crowded in the hallways. The official company line is that Lexolution didn't have the "bandwidth" to accommodate the additional traffic. However, it is suspect. The day before the reviewers were told leave for the day the Fire Marshall showed up!
Let The Fools Die By Their Own Stupidity
"Thomas Reddy, a second-year student at Brooklyn Law School, hasn't landed a summer internship yet after sending resumes to more than 50 law firms. He is taking on about $70,000 of debt each year of the three-year program to earn his degree, but said he may be fortunate to make $80,000 a year in a lawyer job after graduating. 'That is less than what I was making before I went to law school,' he said."
http://online.wsj.com/article/SB10001424052748704866204575224350917718446.html
Mr. Reddy, with all due respect, you are a complete and utter fool. There is no 80 grand a year job waiting for you, unless you aspire to work in some crowded, dank, overheated basement for 80 hours a week in a temporary capacity. You just made the BIGGEST mistake of your life, and you are about to make it worse by handing over another 70 grand to the snakes at BLS.
Understanding New York DWI Alcohol Evaluations Part 2
When I practiced as a Chiropractic Physician (before my legal career) I was trained in the use of a psychological manual called the DSM- III (this is now the updated DSM- IV). DSM stands for The Diagnostic and Statistical Manual of Mental Disorders. Think of the DSM as "Abnormal Psychology for Dummies" and you have a better picture. This manual allows doctors, psychologists, social workers, addition specialists and a host of other mental health care servers to quickly look up a set of symptoms, patterns, and other behaviors and make a "potential" diagnosis or diagnoses.
As a doctor I needed to differentiate (and sometimes place a rule out diagnosis) between physical illness and psychological illness. Oftentimes patients would have a layer of psychological problems/issues aside from and in addition to their disc or nerve or muscle injury. Now the reason I bring up and explain all of this is because this manual is the "go to" guide for evaluators. As a DWI defense lawyer the manual has new significance for me and my clients.
Legally, Alcohol abuse merely requires education. This can often be in the form of New York State's DMV 7 week Drinking Driver Program (DDP). The Court can force compliance with treatment, rehabilitation, and education related to any plea and/or conviction. In some New York counties this must come before a final case resolution, but in the majority of others it comes as a condition of discharge with the Court (after the final disposition).
The question on everyone's mind is so where is the line between alcohol/drug "abuse" and alcohol/drug "dependence"?
Well generally the following are some of the behaviors that those dependent on alcohol may display:
1. Drinking only one type of alcoholic beverage or preferring one brand.
2. Only going to events, get togethers, and parties that serve alcohol.
3. Being able to drink more and more over time by increasing their tolerance to alcohol.
So far these first three sound like my college days or the behavior patterns of many of us, but please read on,
4. Making a decision to quit drinking and then feeling compelled to drink.
5. Drinking to help a hangover (after a night of intense drinking).
6. A compulsion to drink (feeling you have to drink).
7. Getting shaky and feeling ill if you do not drink (alcohol withdrawl symptoms).
If you become DEPENDENT on alcohol then you should seek help. These last 4 critieria indicate people that have a problem with alcohol.
If we look at what the DSM-IV states we find the following:
If you have (display) 3 of the following 7 symptoms (over the course of a year) you are classified as alcohol dependent. By the way, Alcohol "dependent" is a nice way of saying you have "alcoholism."
-You Neglect activities (giving up on your job, social, and joyful pursuits) because of alcohol,
-You drink Excessively (large quantities over long time periods) beginning drinking early to late,
-You Can not Control your drinking or cut back on drinking,
-You Keep drinking even though it is affecting you mentally, physically, and socially,
-You spend a large majority of time in activities that involve drinking alcohol,
-You get nausea, shakiness, anxiety, and sweating if you do not drink,
-You can really put it away (you have a very high tolerance).
My own personal opinion from helping thousands of people as both a Chiropractor, and as an attorney is those people with drug/alcohol problems usually know it. If they do not deal with it early and own up to it they will eventually be forced by the Court/Legal System to confront their issue with more pain and cost to them and their families in the long run.
To me there is nothing sadder than watching someone throw away their life, and their potential as human beings away due to misuse of drugs or alcohol.
Thứ Tư, 5 tháng 5, 2010
Estate Planning Law Firm
Estate Planning Law Firm - The law office of Inna Fershteyn provides responsive, committed and result-oriented client service in the following areas: trust and estate planning, asset protection, business formation, corporate law, licensing and trademarks, medicaid, health care, immigration, family law, bankruptcy and others. The law office of Inna Fershteyn represents clients all over New York and New Jersey.
Understanding New York DWI Mandatory Alcohol Evaluations: Part I
In November 2006 the New York State legislature stated that ALL alcohol evaluations and screenings for DWI cases must be performed by OASAS certified evaluators. OASAS stands for Office of Alcohol and Substance Abuse Services. You can google OASAS to find a certified evaluator and/or treatment provider in your county. Their website is very informative, and fairly easy to navigate.
Legally you must have a "screening" for alcohol abuse/dependency within 30 days of your initial appearance if you had a BAC (blood alcohol concentration) of .12 or higher on your chemical breath test. A screening is merely a written test, it could even be a true/false test.
The next step up in the process so to speak is an "evaluation" for alcohol abuse/dependency within 30 days of the initial appearance if you had a BAC (blood alcohol concentration) of .15 or higher on your chemical breath test. Some evaluators take one long session to perform an evaluation, while some could take up to four sessions to make an evaluation. Cost of these sessions runs about $80 to $90 per session. So one long eval might cost around $175 or four might cost up to $400. An evaluation is an "interview" with a counselor, and could (may or may not depending upon the evaluator) include a urine screen (NOTE: urine tests check for specific drugs while urine screens are general) for drugs. It is also common for the counselor to obtain "collaterals" from you. A collateral is contact information about people who know you and have seen your drinking. These people may or may not be contacted to confirm what you tell the evaluator. The theory is that people with drug/alcohol problems lie, and therefore these collateral sources would be a potential barometer of your truthfulness and/or sobriety.
The next step for the evaluator is to determine whether you are an alcohol/drug abuser and have an abuse diagnosis or you are chemical (alcohol/drug) dependent. This is a critical determination, and should never be taken lightly by anyone.
My problem (I have a great many issues with the process) with these evaluations is that they can be highly subjective. The evaluators opinions carry a lot of weight for the Court as well as the prosecutor and under the circumstances of an interview or interviews they (the evaluators) may not get the full ie. complete picture. I had one client who went to an evaluation and the evaluator decided on a year's worth of treatment for dependency because the client stated he drank more than 5 drinks at one time. BTW 5 drinks for a man or 4 drinks for a woman at one time is classified as a binge drinker. BINGE is BAD in the world of evals. Imagine if you will a year's worth of 2 to 3 times a week standing up and saying, "hello, my name is Bob and I'm an alcoholic," and you may begin to see the grim picture if you are truly a person without a problem. These sessions would be costly in terms of time and money but more than that unjust in my opinion.
In my next blog I'll discuss the differences between how counselors make an abuse diagnosis versus a dependency diagnosis in more detail.
Thứ Ba, 4 tháng 5, 2010
A Renewed Memorandum of Understanding in the Context of US-Italian Foreign Relations
On May 6 and 7 the Cultural Property Advisory Committee will review the Memorandum of Understanding between the United States and Italy. Italy seeks to preserve its cultural heritage by renewing this MoU, which creates barriers to stop at-risk archaeoligical and ethnological objects from seeping through America's borders. The Archaeological Institute of America describes the upcoming CPAC hearings on its web site at
http://www.archaeological.org/webinfo.php?page=10573.
It is no secret that US-Italian relations have not been the strongest in recent years, so renewing the MoU could foster some degree of goodwill needed to embrace one of America's closest allies. Italy has provided some steps to support the US in the last several years that could merit some affirmation by the White House. These steps include, among others, the merger between Fiat and Chrysler that rescued the failing American automaker; the Italian troop commitment in Iraq, representing the fourth largest military contingent deployed to that country in support of US objectives; and Italy' willingness to receive some of the Guantanamo Bay detainees.
When issues such as the shooting death by US forces in 2005 of an Italian secret service agent--who was escorting a released Italian hostage in Baghdad--still loom large in the background of US-Italian relations; or when Italy remains unsettled by its unwilling demotion from prominent G-8 country to a lower-tiered G-20 nation, it may become important to strengthen US-Italian ties. A renewed MoU between the US and Italy could therefore serve to refresh strained foreign relations.
Photo by NuclearVacuum. CC license.
Senator John Sampson, Now Also "Of Counsel" To Belluck & Fox, Has Reached Past The Middle Towards The Top
Albany
Senate's John Sampson Scores Big With Law Firm
By Tom Robbins, Monday, Jan. 4 2010 @ 10:02AM
LINK
It's good to be the king! State senate leader John Sampson - who only a few months was just another Court Street lawyer scurrying for cases in Brooklyn - has hit the big time. The Post reports that the Democratic majority leader is now "of counsel" to one of the state's biggest personal injury law firms, Belluck & Fox.
As the Post's Brendan Scott points out, this gives the powerful state Trial Lawyers Association a pair of bookends at both sides of the state legislature: Assembly speaker Shelly Silver has a similar gig with another P.I. giant, Weitz & Luxenberg.
Sampson spokesman Austin Shafran told the Post that his boss's new gig "never will be in conflict with his official duties." But he declined to talk turkey about the size of Sampson's new paycheck. Under current state ethics laws, Sampson doesn't have to say. But if the ethics reform package now pending in the senate passes, both Sampson and Silver will have to disclose the range of their incomes, including a new category for those earning over seven-figures. Any clients who do state business must also be disclosed. The current porous ethics disclosure rules allowed Sampson's predecessor, former Republican senate boss Joe Bruno, to secretly pull in millions, a scheme that led to his conviction in Albany federal court last month.
There also could be some political tea leaves to be read here: Sampson has been trying to duck questions about his preferences for this year's gubernatorial race, but Joseph Belluck, the lead partner in Sampson's new firm, has already voted - and heavily - with his pocket book. Campaign records show the lawyer has already anted up $55,900 to Cuomo's swollen campaign chest, which is expected to show a total of some $16 million when disclosed later this month. Belluck is also a major donor to the Democratic Senate Campaign committee, now headed by Sampson, giving $22,500 since 2006. Belluck was also a big booster of ex-gov Eliot Spitzer, donating $60,000 to him between 2004 and 2007. He gave another $16,200 to Paterson back in May 2006 when the former state senator was running as Spitzer's number two. Records show Belluck hasn't contributed directly to Paterson since then.
Albany
And Now Introducing State Senate Leader John Sampson ...
By Tom Robbins, Tuesday, Jun. 16 2009
LINK
Here are a few highlights on the career of John Sampson, the south Brooklyn state senator who is taking the reins from now-deposed state senate Democratic leader Malcolm Smith.
- Like Smith, Sampson is a soft-spoken pol who hasn't made a huge impression since he was elected to the senate in 1996. Also like Smith, Sampson has long held a large warm spot in his heart for the real estate industry, whose clout remains undiminished in Albany, be it Democrats or Republicans.
- A former Legal Aid attorney, Sampson figured out early in his career that there was more money to be made representing landlords than tenants. He hooked up with the law firm of Alter & Barbaro, headed by another ex-tenant lawyer who had seen the light, B. Mitchell Alter.
- Alter, a true wild man of the Court Street bar, recognized talent when he saw it. "Yeah, I encouraged him to think about politics," Alter told the Voice in 2005. "I said, 'You are a good-looking guy, you talk well. Politics might be a good thing for you.'"
- Sampson beat longtime incumbent Howard Babbush, a hack from the Thomas Jefferson Democratic club. It helped that Babbush had been a notorious semi-show in Albany for years; also that the senator had claimed for a decade that he was too ill to face larceny charges brought by Manhattan District Attorney Robert Morgenthau in a wide-ranging case against Albany pols.
- Sampson, whose father came from Guyana, won handily with the backing of then Democratic county leader Clarence Norman.
- Fast forward to 2005 when Norman himself faced indictment on multiple charges of embezzlement by District Attorney Joe Hynes, and Sampson decided to run for D.A. Norman was busy going to trial all through the primary season but he still rooted for his candidate. "I will be doing everything in my power to get rid of Joe Hynes by telling all of the people I can to vote for John Sampson," Norman told the Voice as he entered criminal court shortly before the primary election.
- Hynes' aides were so worried about Sampson winning and moving to quash all of the pending Norman investigations that they planned to bar him from the office until his inauguration, sources said.
- Sampson's resume didn't impress everyone. The Bar Association found him unqualified, saying he just didn't have the experience for the job. It hardly mattered. Sampson, the only African American in the campaign, finished a close second to Hynes in a four-way race, giving the D.A. (who has no significant primary opponent so far this year) a good scare.
- One more special highlight from the D.A. race was Sampson's trip to Israel with another wild man supporter, Democratic Assemblyman Dov Hikind from Brooklyn's Borough Park. There, Sampson saw something he really didn't like: orthodox Jewish settlers being ousted from illegal settlements in Gaza. "This in certain ways is like slavery in America," said Sampson.
- Finally, Sampson could use the exposure his new post will bring: His current senate campaign committee lists just $1,041 in the bank.
Attention, ladies and gentlemen of the Greater Albany League of Lobbyists: The bar is now open!
Cuomo Said to Have $16 Million to Oust N.Y. Governor Paterson
LINK
Nov. 20 (Bloomberg) -- New York Attorney General Andrew Cuomo has raised $16 million in a campaign to challenge Democratic Governor David Paterson in 2010 for the state’s top job, according to a person familiar with his plans.
Cuomo, 51, also a Democrat, has hired five professional fundraisers since January and has set a goal of taking in $20 million by Jan. 15, a person familiar with his plans said. He had amassed more than $10 million in campaign funds as of July, according to the state Board of Elections.
“Twenty million dollars -- that’s the number that gets you in the door, and it will probably dwarf what Paterson has available,” said Hank Sheinkopf, a Manhattan-based political consultant who ran statewide campaigns for H. Carl McCall in the 2006 governor’s race and for Eliot Spitzer in 1998 in his state attorney general contest.
Former New York Mayor Rudolph Giuliani has decided not to run for governor, according to a person familiar with his plans. That makes it more difficult for Cuomo to argue Paterson should step aside, as White House officials had asked him to. Paterson, 55, was under pressure not to run, partly because polls showed he would lose to Giuliani, an unsuccessful GOP presidential candidate in 2008.
A Nov. 16 Siena Research Institute poll showed Giuliani beating Paterson in a governor’s race, 56 percent to 33 percent. The poll showed Cuomo would beat Paterson, 75 percent to 16 percent in a primary election. The survey of 800 voters had a margin of error of 3.5 percentage points.
Paterson’s Unpopularity
“I have a hard time seeing Paterson survive a Democratic primary challenge if he had to face one from Cuomo,” said Kenneth Sherrill, a political science professor at Hunter College in Manhattan. “I don’t think Paterson’s unpopularity can turn around that easily.”
The Democrats’ gubernatorial nominee may affect the success of other politicians on the ticket, including those running for the Legislature, which will determine new boundaries for U.S. congressional districts based on the 2010 census. The next governor will also take the lead in solving the state’s deficit, now estimated at $10 billion through March 2011, through spending cuts or tax increases.
“There’s a lot at stake nationally here,” said Douglas Muzzio, a professor of urban politics at Baruch College in Manhattan. “A disaster at the top of the ticket could bring some of them down.”
By March Cuomo, who was a U.S. Housing & Urban Development secretary under President Bill Clinton, intends to announce his candidacy by the end of March, according to two friends who described private conversations with him this month and last and asked not to be identified because the talks were confidential.
The attorney general’s strategy is to build on goodwill won since becoming the state’s chief prosecutor, the friends and political professionals said. The attorney general’s probes have targeted alleged abuses among student-loan companies, executive bonuses and alleged collusion among health insurers.
In an e-mailed statement released through Richard Bamberger, a spokesman for the attorney general’s office, Cuomo declined to discuss his political intentions for 2010.
“The attorney general has been clear that his focus remains doing the best job possible for the people of New York as attorney general,” Bamberger wrote. “Next year is an election year, and he’ll deal with the politics then.”
Jennifer Bayer, one of Cuomo’s fundraisers, denied there was a plan to run for governor.
“The only discussion there has ever been is about an attorney general campaign,” she said in an e-mail.
Paterson’s Funds
Paterson’s funds total about $5 million, said Richard Fife, his campaign manager. “We will have all the money we will need to win this race.”
The governor began advertising on television in early November, Fife said in a phone interview.
Fife declined to say whether Paterson expects a challenge from Cuomo.
“Andrew Cuomo has said he’s running for attorney general, and we take him at his word,” Fife said. “We’re planning our campaign around the governor’s record. We’re getting the message out, and we’re moving forward.”
Spitzer had raised $19 million by January of 2006, the year he ran for governor, according to state campaign records -- about $1 million less than Cuomo’s goal.
Paterson, who took office after Spitzer resigned amid a call-girl scandal in March 2008, has a job-approval rating that’s been stuck at about 30 percent or below since May, according to public opinion surveys.
Historic Lows
“His ratings have dropped to the lowest point of any governor in New York history, including Spitzer at the height of the sex scandal, since we started conducting surveys in 1983,” said Lee Miringoff, director of the Marist Institute for Public Opinion in Poughkeepsie, New York.
In a Sept. 24 survey, Marist reported that only 17 percent of state voters rated Paterson’s performance positively, with a margin of error of 4 percentage points.
The White House political director told Paterson that President Barack Obama had lost confidence in the governor’s ability to win the 2010 election, especially if Giuliani were to be the Republican candidate, the New York Times said, citing two unidentified Democrats.
Even without a Giuliani threat, Paterson would have to overcome the popularity of Cuomo, whose “favorability” rating is 70 percent among Democrats, according to the Nov. 16 Siena Research poll.
Cuomo’s entry into the governor’s race would begin a battle between scions of two New York Democratic dynasties.
Two Scions
The attorney general is the son of three-term former Governor Mario Cuomo while Paterson is the son of Basil Paterson, an attorney and a member of the Harlem-based political organization that produced former New York Mayor David Dinkins and U.S. Representative Charles Rangel, both Democrats.
Cuomo’s unannounced campaign has featured fundraisers at which talk of the governor’s race has been muted.
On Nov. 3, about 70 supporters paid $1,000 to $5,000 at an event in an 18th-floor apartment with terraces overlooking Central Park in the 37-story art-deco Sherry-Netherland hotel on Fifth Avenue. Cuomo spoke about the need for public integrity and his opposition to higher taxes at the Election Day fundraiser.
“It was a mesmerizing venue with breathtaking views that showed New York at its best,” said Ravi Batra, 54, a New York attorney who said he donated $5,000 that night to Cuomo’s campaign committee, titled “Andrew Cuomo 2010.”
$75,000 Raised
At the cocktail party, which two organizers said raised about $75,000, Cuomo “didn’t talk about running” to unseat Paterson, said New York billionaire John Catsimatidis, 61, who hosted the event in the apartment of Liberty Travel Inc. founder Gilbert Haroche. Another person who attended and asked, like the organizers, not to be identified said the attorney general told him privately he may announce plans as early as January to seek the governor’s job.
“He hasn’t publicly said he’s running,” said Sheinkopf, the McCall adviser. “He’s only making certain he’s ready to go.”
In 2002, Cuomo opposed McCall, who is black, for the Democratic gubernatorial nomination. Cuomo abandoned the effort after black Democratic leaders warned they wouldn’t support him if he won the nomination. McCall, 74, a former state comptroller, was aligned with the same Harlem-based political organization that helped Paterson, who is black, become a state Senate minority leader and Spitzer’s choice for lieutenant governor.
Experience Counts
Batra said he backed Cuomo because of his experience, first as a political adviser to his father, Mario, who was governor from 1983 to 1994, and later as HUD secretary from 1997 to 2001.
Andrew Cuomo became attorney general in 2007 and immediately generated headlines with investigations revealing kickbacks, gifts and free trips to colleges and financial aid officers by firms in the $85 billion student-loan industry.
He got AT&T Inc. and Time Warner Inc., two of the largest U.S. Internet service providers, to sign agreements to remove child-pornography Web sites from their servers and to block access to child-porn newsgroups. He forced companies such as American International Group Inc. and Merrill Lynch & Co. to disclose bonuses received after they received taxpayer aid.
In 2008, Cuomo and other regulators got Citigroup Inc., UBS AG and Merrill to agree to buy back billions in debt to settle claims they improperly touted auction-rate securities as safe, cash-like investments. Banks managing the auctions abandoned the $330 billion market in February 2008, stranding investors who could no longer sell the securities.
Guilty Plea
Last month, Cuomo obtained a guilty plea from Raymond Harding, former chairman of the state Liberal Party, who admitted he took more than $800,000 to do political favors for Alan Hevesi, 68, a former state comptroller. Cuomo is investigating fees paid to a Hevesi associate by investment firms seeking business with the state pension fund, which Hevesi oversaw.
An outgrowth of that investigation has been a Cuomo-drafted code of conduct barring use of so-called placement agents, middlemen who receive payments from investment firms to help them get contracts managing public pension funds.
Cuomo’s successes and poll ratings stand in contrast to his status in 2002, when he backed out of the race against McCall and then was the subject of news reports detailing his divorce from Kerry Kennedy, the daughter of Robert F. Kennedy, the U.S. senator from New York who was assassinated while campaigning for the U.S. presidency in 1968.
Low Polls
Paterson has blamed his low poll ratings on the state’s budget crisis, which has required him to recommend unpopular spending reductions. Unions responded to proposed cuts to health programs and school aid last year with a television ad campaign directed against him.
In recent weeks, Cuomo has traveled the state, attracting headlines in local newspapers by making appearances to help Democrats raise money. Since Labor Day, he’s held fundraising events at the rate of about one a week.
They included an Oct. 20 gathering of real estate industry backers at the Princeton Club hosted by John Zuccotti, chairman of Brookfield Financial Properties Inc.; a Nov. 16 luncheon in Washington, D.C., organized by Anthony Podesta, a lobbyist whose brother, John, headed Obama’s transition team; and a Nov. 18 breakfast at Manhattan’s Sheraton New York for attorneys. Another Sheraton event, a “birthday celebration for Andrew,” is planned for Dec. 17.
No Doubt
“I don’t think there’s any doubt he’s running for governor,” said Peter Harvey, a partner in the law firm Patterson Belknap Webb & Tyler LLP, as he walked out of the Nov. 18 Sheraton fundraiser.
Cuomo no longer makes his pitch for money by telling supporters he needs funds to get re-elected attorney general. When a reporter asked him on Oct. 29 if he was running for governor, he said: “Next year we’ll talk about next year.”
To contact the reporter on this story: Henry Goldman in New York City Hall at hgoldman@bloomberg.net.
Last Updated: November 20, 2009 00:01 EST
Thứ Hai, 3 tháng 5, 2010
How Cheap Is Huron?
According to the New York Times, they are so cheap they billed one of their clients $2.36 for a pack of gum. The Huron Witch is not only evil, she is cheap as hell!
"No charges have been too big, or too small. The Huron Consulting Group, a management consultancy {bottom feeding outsourcing outfit} involved in Lehman, charged $2.54 for 'gum in airport.'"
http://www.nytimes.com/2010/05/02/business/02workout.html
"No charges have been too big, or too small. The Huron Consulting Group, a management consultancy {bottom feeding outsourcing outfit} involved in Lehman, charged $2.54 for 'gum in airport.'"
http://www.nytimes.com/2010/05/02/business/02workout.html
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