The Unified Court System has promulgated a revised Request for Judicial Intervention Form (Form USC-840 Rev. 3/2011), and Addenda, for use in civil practice in the Supreme and County Courts. The revisions contained in the new form are the product of extensive research and development by court personnel, as well as commentary from the professional bar.
The new forms include the RJI itself (UCS-840), a general addendum (UCS-840A), and specialized addenda for Commercial Division (UCS-840C), foreclosure (UCS-840F), and matrimonial matters (UCS-840M).
Parties and counsel should employ these new forms immediately and henceforth. However, to avoid unfairness in its introduction, courts and clerks should accept both the new and the former RJI form (Rev. 1/2000) for filing through August 31, 2011.
Downloaded from http://www.nycourts.gov/forms/rji/index.shtml (Last accessed May 26, 2011)
Chủ Nhật, 29 tháng 5, 2011
Thứ Năm, 26 tháng 5, 2011
Ithaca Lawyer Appears in Ulysses/ Trumansburg Town Court
Just up the road North of Ithaca on Route 96 is Trumansburg, more affectionately known as "T-Burg." Grassroots Festival (be careful driving or walking because of DWI and drugs, etc.), and lots of other Finger Lake events bring people from far and wide to this sleepy little town. Ulysses and T-Burg share the same Courthouse, right on Elm. Street, next to the Post Office. Plenty of parking in lots adjacent to and across from Court, unlike so many of the Courts I visit.
When I first came up here from the City this was always confusing. Confusing, because many Courts are not located in their Towns. For instance, Yates County/ Jerusalem Court is located in Branchport, so if you go to the Town of Jerusalem you're lost! Many towns are just not big enough to have a Courthouse so they share or they are located a town over. City Courts are in their cities but Town and Village Courts may be located anywhere.
Ulysses Court is in a small room, sometimes it's standing room only, and Mondays here are the "busy" Court night. I often go from here all the way back down to Ithaca, and then up on Route 13 to Dryden, which also has their busy Court night on Mondays as well. In the winter, depending on the weather it is not a fun Monday night. Court starts around 6 or 630 here, Dryden runs from 5pm till ? As I like to joke, 5 till done (much like the BBQs).
10 Elm Street, Trumansburg, NY
One Parking lot to the East of the Courthouse, and another
right across the street.
Both Judges move the Courts along briskly here, and I think the small room size actually helps to keep things focused. Another bonus here, walking distance to Gimme Coffee, Red Dragon Chinese Restaurant, and New York Pizza (which unfortunately is closed on Mondays, and doesn't serve Coke or Pepsi products). They sell some "foreign" soda which POs my wife.
Within driving distance is The Falls restaurant (kinda like a diner) which has excellent home cooked food. Rustic wood, Down to earth, and very good.
Phone: 607-387-5411
Fax: 607-387-5843
Email: toujust@twcny.rr.com
Justice Roger Rector holds court Tuesdays 9:30 AM
PTCs scheduled as per the Judge.
Justice Thomas Schlee holds Court Monday evenings at 6pm.
PTCs: Pretrial Conferences (where the Asst. District Attorney is present) are on the 1st Monday of each month at 6pm. These can also be status conferences to see if cases are moving towards a plea or a trial.
The ADA here is Dan Johnson.
When I first came up here from the City this was always confusing. Confusing, because many Courts are not located in their Towns. For instance, Yates County/ Jerusalem Court is located in Branchport, so if you go to the Town of Jerusalem you're lost! Many towns are just not big enough to have a Courthouse so they share or they are located a town over. City Courts are in their cities but Town and Village Courts may be located anywhere.
Ulysses Court is in a small room, sometimes it's standing room only, and Mondays here are the "busy" Court night. I often go from here all the way back down to Ithaca, and then up on Route 13 to Dryden, which also has their busy Court night on Mondays as well. In the winter, depending on the weather it is not a fun Monday night. Court starts around 6 or 630 here, Dryden runs from 5pm till ? As I like to joke, 5 till done (much like the BBQs).
right across the street.
Both Judges move the Courts along briskly here, and I think the small room size actually helps to keep things focused. Another bonus here, walking distance to Gimme Coffee, Red Dragon Chinese Restaurant, and New York Pizza (which unfortunately is closed on Mondays, and doesn't serve Coke or Pepsi products). They sell some "foreign" soda which POs my wife.
Within driving distance is The Falls restaurant (kinda like a diner) which has excellent home cooked food. Rustic wood, Down to earth, and very good.
Phone: 607-387-5411
Fax: 607-387-5843
Email: toujust@twcny.rr.com
Justice Roger Rector holds court Tuesdays 9:30 AM
PTCs scheduled as per the Judge.
Justice Thomas Schlee holds Court Monday evenings at 6pm.
PTCs: Pretrial Conferences (where the Asst. District Attorney is present) are on the 1st Monday of each month at 6pm. These can also be status conferences to see if cases are moving towards a plea or a trial.
The ADA here is Dan Johnson.
New York Attorney Advertising Rule 7.1 Amended
Amendments to Rule 7.1 (c), (d), (e) and (g) of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, were approved by the four presiding justices of the Appellate Division departments. The amendments allow the use of testimonials or endorsements from clients with respect to a pending matter, as long as the clients give informed consent. They allow actors to portray judges, lawyers or clients provided the advertisements disclose that the characters are actors. The rule prohibiting a pop-up or pop-under advertisement in connection with computer-accessed communications has been eliminated.
Former Rule 7.1 (c), (d) (e) and (g) of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, is set forth below, with the deleted sections highlighted:
(c) An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending; [DELETED]
(2) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor;
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case; [DELETED]
(4) use actors to portray the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same;
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence; [DELETED]
(6) be made to resemble legal documents; or
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter. [DELETED]
(d) An advertisement that complies with paragraph (e) may contain the following:
(1) statements that are reasonably likely to create an expectation about results the lawyer can achieve;
(2) statements that compare the lawyer's services with the services of other lawyers;
(3) testimonials or endorsements of clients, where not prohibited by paragraph (c)(1), and of former clients; or [DELETED “where not prohibited by paragraph (c)(1)”]
(4) statements describing or characterizing the quality of the lawyer's or law firm's services.
(e) It is permissible to provide the information set forth in paragraph (d) provided:
[DELETED “subdivision (d) of this section” and replaced it with “in paragraph (d)”
(1) its dissemination does not violate paragraph (a); [DELETED “paragraph (a) and replaced it with “subdivision (a) of this section’]
(2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and
(3) it is accompanied by the following disclaimer: "Prior results do not guarantee a similar outcome."
(g) A lawyer or law firm shall not utilize:
(1) a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firm's own web site or other internet presence; or [DELETED]
(2) meta tags or other hidden computer codes that, if displayed, would violate these Rules.
Rule 7.1 of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, now provides:
Rule 7.1: Advertising.
(a) A lawyer or law firm shall not use or disseminate or participate in the use
or dissemination of any advertisement that:
(1) contains statements or claims that are false, deceptive or misleading;
or
(2) violates a Rule.
(b) Subject to the provisions of paragraph (a), an advertisement may include
information as to:
(1) legal and nonlegal education, degrees and other scholastic distinctions,
dates of admission to any bar; areas of the law in which the lawyer or law
firm practices, as authorized by these Rules; public offices and teaching
positions held; publications of law related matters authored by the lawyer;
memberships in bar associations or other professional societies or
organizations, including offices and committee assignments therein; foreign
language fluency; and bona fide professional ratings;
(2) names of clients regularly represented, provided that the client has
given prior written consent;
(3) bank references; credit arrangements accepted; prepaid or group legal
services programs in which the lawyer or law firm participates; nonlegal
services provided by the lawyer or law firm or by an entity owned and
controlled by the lawyer or law firm; the existence of contractual
relationships between the lawyer or law firm and a nonlegal professional or
nonlegal professional service firm, to the extent permitted by Rule 5.8, and
the nature and extent of services available through those contractual
relationships; and
(4) legal fees for initial consultation; contingent fee rates in civil
matters when accompanied by a statement disclosing the information required
by paragraph (p); range of fees for legal and nonlegal services, provided
that there be available to the public free of charge a written statement
clearly describing the scope of each advertised service; hourly rates; and
fixed fees for specified legal and nonlegal services.
(c) An advertise shall not:
(1) include a paid endorsement of, or testimonial about, a lawyer or law
firm without disclosing that the person is being compensated therefore;
(2) include the portrayal of a fictitious law firm, the use of a fictitious
name to refer to lawyers not associated together in a law firm, or otherwise
imply that lawyers are associated in a law firm if that is not the case.
(3) use actors to portray a judge, the lawyer, members of the law firm, or
clients, or utilize depictions of fictionalized events or scenes, without
disclosure of same; or
(4) be made to resemble legal documents
(d) An advertisement that complies with subdivision (e) of this section may
contain the following:
(1) statements that are reasonably likely to create an expectation about
results the lawyer can achieve;
(2) statements that compare the lawyer's services with the services of other
lawyers;
(3) testimonials or endorsements of clients, and of former clients; or
(4) statements describing or characterizing the quality of the lawyer's or
law firm's services.
(e) It is permissible to provide the information set forth in subdivision (d)
of this section provided:
(1) its dissemination does not violate subdivision (a) of this section;
(2) it can be factually supported by the lawyer or law firm as of the date
on which the advertisement is published or disseminated;
(3) it is accompanied by the following disclaimer: "Prior results do not
guarantee a similar outcome"; and
(4) in the case of a testimonial or endorsement from a client with respect
to a matter still pending, the client gives informed consent confirmed in
writing.
(f) Every advertisement other than those appearing in a radio, television or
billboard advertisement, in a directory, newspaper, magazine or other
periodical (and any web sites related thereto), or made in person pursuant to
Rule 7.3(a)(1), shall be labeled "Attorney Advertising" on the first page, or
on the home page in the case of a web site. If the communication is in the form
of a self-mailing brochure or postcard, the words "Attorney Advertising" shall
appear therein. In the case of electronic mail, the subject line shall contain
the notation "ATTORNEY ADVERTISING."
(g) A lawyer or law firm shall not utilize meta tags or other hidden computer
codes that, if displayed, would violate these Rules.
(h) All advertisements shall include the name, principal law office address and
telephone number of the lawyer or law firm whose services are being offered.
(i) Any words or statements required by this Rule to appear in an
advertisement must be clearly legible and capable of being read by the
average person, if written, and intelligible if spoken aloud. In the case of
a web site, the required words or statements shall appear on the home page.
(j) A lawyer or law firm advertising any fixed fee for specified legal
services shall, at the time of fee publication, have available to the public
a written statement clearly describing the scope of each advertised service,
which statement shall be available to the client at the time of retainer for
any such service. Such legal services shall include all those services that
are recognized as reasonable and necessary under local custom in the area of
practice in the community where the services are performed.
(k) All advertisements shall be pre-approved by the lawyer or law firm, and
a copy shall be retained for a period of not less than three years following
its initial dissemination. Any advertisement contained in a
computer-accessed communication shall be retained for a period of not less
than one year. A copy of the contents of any web site covered by this Rule
shall be preserved upon the initial publication of the web site, any major
web site redesign, or a meaningful and extensive content change, but in no
event less frequently than once every 90 days.
(l) If a lawyer or law firm advertises a range of fees or an hourly rate for
services, the lawyer or law firm shall not charge more than the fee
advertised for such services. If a lawyer or law firm advertises a fixed fee
for specified legal services, or performs services described in a fee
schedule, the lawyer or law firm shall not charge more than the fixed fee
for such stated legal service as set forth in the advertisement or fee
schedule, unless the client agrees in writing that the services performed or
to be performed were not legal services referred to or implied in the
advertisement or in the fee schedule and, further, that a different fee
arrangement shall apply to the transaction.
(m) Unless otherwise specified in the advertisement, if a lawyer publishes
any fee information authorized under this Rule in a publication that is
published more frequently than once per month, the lawyer shall be bound by
any representation made therein for a period of not less than 30 days after
such publication. If a lawyer publishes any fee information authorized under
this Rule in a publication that is published once per month or less
frequently, the lawyer shall be bound by any representation made therein
until the publication of the succeeding issue. If a lawyer publishes any fee
information authorized under this Rule in a publication that has no fixed
date for publication of a succeeding issue, the lawyer shall be bound by any
representation made therein for a reasonable period of time after
publication, but in no event less than 90 days.
(n) Unless otherwise specified, if a lawyer broadcasts any fee information
authorized under this Rule, the lawyer shall be bound by any representation
made therein for a period of not less than 30 days after such broadcast.
(o) A lawyer shall not compensate or give any thing of value to
representatives of the press, radio, television or other communication
medium in anticipation of or in return for professional publicity in a news
item.
(p) All advertisements that contain information about the fees charged by
the lawyer or law firm, including those indicating that in the absence of a
recovery no fee will be charged, shall comply with the provisions of
Judiciary Law s 488(3).
(q) A lawyer may accept employment that results from participation in
activities designed to educate the public to recognize legal problems, to
make intelligent selection of counsel or to utilize available legal
services.
(r) Without affecting the right to accept employment, a lawyer may speak
publicly or write for publication on legal topics so long as the lawyer does
not undertake to give individual advice.
Current through amendments included in the New York State Register, Volume XXXII,
Issue 21, dated May 25, 2011.
Former Rule 7.1 (c), (d) (e) and (g) of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, is set forth below, with the deleted sections highlighted:
(c) An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter still pending; [DELETED]
(2) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor;
(3) include the portrayal of a judge, the portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not associated together in a law firm, or otherwise imply that lawyers are associated in a law firm if that is not the case; [DELETED]
(4) use actors to portray the lawyer, members of the law firm, or clients, or utilize depictions of fictionalized events or scenes, without disclosure of same;
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence; [DELETED]
(6) be made to resemble legal documents; or
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results in a matter. [DELETED]
(d) An advertisement that complies with paragraph (e) may contain the following:
(1) statements that are reasonably likely to create an expectation about results the lawyer can achieve;
(2) statements that compare the lawyer's services with the services of other lawyers;
(3) testimonials or endorsements of clients, where not prohibited by paragraph (c)(1), and of former clients; or [DELETED “where not prohibited by paragraph (c)(1)”]
(4) statements describing or characterizing the quality of the lawyer's or law firm's services.
(e) It is permissible to provide the information set forth in paragraph (d) provided:
[DELETED “subdivision (d) of this section” and replaced it with “in paragraph (d)”
(1) its dissemination does not violate paragraph (a); [DELETED “paragraph (a) and replaced it with “subdivision (a) of this section’]
(2) it can be factually supported by the lawyer or law firm as of the date on which the advertisement is published or disseminated; and
(3) it is accompanied by the following disclaimer: "Prior results do not guarantee a similar outcome."
(g) A lawyer or law firm shall not utilize:
(1) a pop-up or pop-under advertisement in connection with computer-accessed communications, other than on the lawyer or law firm's own web site or other internet presence; or [DELETED]
(2) meta tags or other hidden computer codes that, if displayed, would violate these Rules.
Rule 7.1 of Part 1200 of Title 22 of the Official Compilation of Codes, Rules and Regulations of the State of New York, entitled “Rules of Professional Conduct, now provides:
Rule 7.1: Advertising.
(a) A lawyer or law firm shall not use or disseminate or participate in the use
or dissemination of any advertisement that:
(1) contains statements or claims that are false, deceptive or misleading;
or
(2) violates a Rule.
(b) Subject to the provisions of paragraph (a), an advertisement may include
information as to:
(1) legal and nonlegal education, degrees and other scholastic distinctions,
dates of admission to any bar; areas of the law in which the lawyer or law
firm practices, as authorized by these Rules; public offices and teaching
positions held; publications of law related matters authored by the lawyer;
memberships in bar associations or other professional societies or
organizations, including offices and committee assignments therein; foreign
language fluency; and bona fide professional ratings;
(2) names of clients regularly represented, provided that the client has
given prior written consent;
(3) bank references; credit arrangements accepted; prepaid or group legal
services programs in which the lawyer or law firm participates; nonlegal
services provided by the lawyer or law firm or by an entity owned and
controlled by the lawyer or law firm; the existence of contractual
relationships between the lawyer or law firm and a nonlegal professional or
nonlegal professional service firm, to the extent permitted by Rule 5.8, and
the nature and extent of services available through those contractual
relationships; and
(4) legal fees for initial consultation; contingent fee rates in civil
matters when accompanied by a statement disclosing the information required
by paragraph (p); range of fees for legal and nonlegal services, provided
that there be available to the public free of charge a written statement
clearly describing the scope of each advertised service; hourly rates; and
fixed fees for specified legal and nonlegal services.
(c) An advertise shall not:
(1) include a paid endorsement of, or testimonial about, a lawyer or law
firm without disclosing that the person is being compensated therefore;
(2) include the portrayal of a fictitious law firm, the use of a fictitious
name to refer to lawyers not associated together in a law firm, or otherwise
imply that lawyers are associated in a law firm if that is not the case.
(3) use actors to portray a judge, the lawyer, members of the law firm, or
clients, or utilize depictions of fictionalized events or scenes, without
disclosure of same; or
(4) be made to resemble legal documents
(d) An advertisement that complies with subdivision (e) of this section may
contain the following:
(1) statements that are reasonably likely to create an expectation about
results the lawyer can achieve;
(2) statements that compare the lawyer's services with the services of other
lawyers;
(3) testimonials or endorsements of clients, and of former clients; or
(4) statements describing or characterizing the quality of the lawyer's or
law firm's services.
(e) It is permissible to provide the information set forth in subdivision (d)
of this section provided:
(1) its dissemination does not violate subdivision (a) of this section;
(2) it can be factually supported by the lawyer or law firm as of the date
on which the advertisement is published or disseminated;
(3) it is accompanied by the following disclaimer: "Prior results do not
guarantee a similar outcome"; and
(4) in the case of a testimonial or endorsement from a client with respect
to a matter still pending, the client gives informed consent confirmed in
writing.
(f) Every advertisement other than those appearing in a radio, television or
billboard advertisement, in a directory, newspaper, magazine or other
periodical (and any web sites related thereto), or made in person pursuant to
Rule 7.3(a)(1), shall be labeled "Attorney Advertising" on the first page, or
on the home page in the case of a web site. If the communication is in the form
of a self-mailing brochure or postcard, the words "Attorney Advertising" shall
appear therein. In the case of electronic mail, the subject line shall contain
the notation "ATTORNEY ADVERTISING."
(g) A lawyer or law firm shall not utilize meta tags or other hidden computer
codes that, if displayed, would violate these Rules.
(h) All advertisements shall include the name, principal law office address and
telephone number of the lawyer or law firm whose services are being offered.
(i) Any words or statements required by this Rule to appear in an
advertisement must be clearly legible and capable of being read by the
average person, if written, and intelligible if spoken aloud. In the case of
a web site, the required words or statements shall appear on the home page.
(j) A lawyer or law firm advertising any fixed fee for specified legal
services shall, at the time of fee publication, have available to the public
a written statement clearly describing the scope of each advertised service,
which statement shall be available to the client at the time of retainer for
any such service. Such legal services shall include all those services that
are recognized as reasonable and necessary under local custom in the area of
practice in the community where the services are performed.
(k) All advertisements shall be pre-approved by the lawyer or law firm, and
a copy shall be retained for a period of not less than three years following
its initial dissemination. Any advertisement contained in a
computer-accessed communication shall be retained for a period of not less
than one year. A copy of the contents of any web site covered by this Rule
shall be preserved upon the initial publication of the web site, any major
web site redesign, or a meaningful and extensive content change, but in no
event less frequently than once every 90 days.
(l) If a lawyer or law firm advertises a range of fees or an hourly rate for
services, the lawyer or law firm shall not charge more than the fee
advertised for such services. If a lawyer or law firm advertises a fixed fee
for specified legal services, or performs services described in a fee
schedule, the lawyer or law firm shall not charge more than the fixed fee
for such stated legal service as set forth in the advertisement or fee
schedule, unless the client agrees in writing that the services performed or
to be performed were not legal services referred to or implied in the
advertisement or in the fee schedule and, further, that a different fee
arrangement shall apply to the transaction.
(m) Unless otherwise specified in the advertisement, if a lawyer publishes
any fee information authorized under this Rule in a publication that is
published more frequently than once per month, the lawyer shall be bound by
any representation made therein for a period of not less than 30 days after
such publication. If a lawyer publishes any fee information authorized under
this Rule in a publication that is published once per month or less
frequently, the lawyer shall be bound by any representation made therein
until the publication of the succeeding issue. If a lawyer publishes any fee
information authorized under this Rule in a publication that has no fixed
date for publication of a succeeding issue, the lawyer shall be bound by any
representation made therein for a reasonable period of time after
publication, but in no event less than 90 days.
(n) Unless otherwise specified, if a lawyer broadcasts any fee information
authorized under this Rule, the lawyer shall be bound by any representation
made therein for a period of not less than 30 days after such broadcast.
(o) A lawyer shall not compensate or give any thing of value to
representatives of the press, radio, television or other communication
medium in anticipation of or in return for professional publicity in a news
item.
(p) All advertisements that contain information about the fees charged by
the lawyer or law firm, including those indicating that in the absence of a
recovery no fee will be charged, shall comply with the provisions of
Judiciary Law s 488(3).
(q) A lawyer may accept employment that results from participation in
activities designed to educate the public to recognize legal problems, to
make intelligent selection of counsel or to utilize available legal
services.
(r) Without affecting the right to accept employment, a lawyer may speak
publicly or write for publication on legal topics so long as the lawyer does
not undertake to give individual advice.
Current through amendments included in the New York State Register, Volume XXXII,
Issue 21, dated May 25, 2011.
Thứ Tư, 25 tháng 5, 2011
Rockland County, NY establishes animal abuse registry
For more information on the registry and its legislation, view the link below from the Animal Legal Defense Fund.
http://www.aldf.org/article.php?id=1716
http://www.aldf.org/article.php?id=1716
Thứ Ba, 24 tháng 5, 2011
Thứ Hai, 23 tháng 5, 2011
Important New Decisions - May 23, 2011
Improper to Incorporate Agreement into Judgment Where No Meeting of The Minds
In Alton v Alton, --- N.Y.S.2d ----, 2011 WL 1612577 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that the defendant husband contended that the Supreme Court erred in denying his motion which were to set aside the provisions of the parties' oral, on-the-record stipulation of settlement relating to equitable distribution, maintenance, his obligation to purchase an apartment for the plaintiff wife, and the validity of the parties' prenuptial agreement, because there was no meeting of the minds on an essential material term, to wit, the purchase price of the subject apartment. It held that since a judgment was entered that purported to incorporate the terms of the putative settlement, the defendant was precluded from challenging the validity or enforceability of the settlement by way of motion, but was required either to appeal from the judgment or commence a plenary action. Since the defendant appealed from the judgment, it reached the merits of the defendant's contention that no stipulation of settlement was, in fact, consummated. It noted that in determining whether an agreement exists, the inquiry centers upon the parties' intent to be bound and whether there was a meeting of the minds regarding the material terms of the transaction . A review of the transcribed proceedings at which the parties attempted to negotiate a settlement revealed that the parties never reached an agreement on the essential and material term regarding the purchase price of the apartment. The provisions relating to the apartment purchase were intertwined and integrated with the other provisions of the disputed stipulation of settlement, i.e., the provisions relating to equitable distribution, maintenance, and the validity of the parties' prenuptial agreement. Accordingly, the Supreme Court should not have incorporated the disputed stipulation of settlement provisions into the judgment of divorce.
Best Interest of Child Outweighed Application of Exclusionary Rule in Custody Case
In Matter of Young v Young, --- N.Y.S.2d ----, 2010 WL 6622106 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which awarded the father sole custody of the parties child. It held that Family Court did not err in summarily denying the mother's motion to suppress certain evidence which she alleged was obtained illegally. In a custody case, the court is required to determine "solely what is for the best interest of the child, and what will promote its welfare and happiness, and make an award accordingly. It stated that the best interests of the child are determined by a review of the totality of the circumstances. It held that the application of the exclusionary rule to prevent the court from considering factors relevant to that determination, pertaining here to the condition of the home of a parent who was seeking custody, would have a "detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children," which outweighed the deterrent effect of applying the exclusionary rule (citing Matter of Diane P., 110 A.D.2d 354, 354). It also rejected the mother's contention that the Family Court should have conducted a pretrial hearing as to the voluntariness of an admission she made and the effectiveness of her counsel in a neglect proceeding which had been brought against her. The mother testified as to these matters during the custody trial, such that the issues and her position thereon were before the Family Court. Family Court's determination that it was in the children's best interest for the father to be awarded custody had a sound and substantial basis in the record.
Well-established Precedent Overwhelmingly Supports a Party's Right to an Evidentiary Hearing Before a Finding of Contempt
In Bergman v Bergman, --- N.Y.S.2d ----, 2011 WL 1796364 (N.Y.A.D. 1 Dept.) the Appellate Division held that a hearing is required on a contempt motion when the party opposing the motion asserts a defense of financial inability to comply. Domestic Relations Law s 246(3) in pertinent part states: "Any person may assert his financial inability to comply with ... an order or judgment ... as a defense in a proceeding instituted against him ... to punish him for his failure to comply ... and if the court, upon the hearing of such contempt proceeding is satisfied from the proofs and evidence offered ... that the defendant is financially unable to comply ... it may, in its discretion, until further order of the court, make an order modifying such order or judgment...." Further, Domestic Relations Law 236(B)(9)(b) provides that a party may seek downward modification if he or she has experienced a "substantial change in circumstances:" There is no limit to the number of times a party may seek downward modification. The party must demonstrate that there has been a substantial change in circumstances to merit any downward modification. There is no right to a hearing absent a prima facie showing of entitlement to downward modification. However, well-established precedent overwhelmingly supports a party's right to an evidentiary hearing before a finding of contempt (Boritzer v. Boritzer, 137 A.D.2d 477 [1988]; Comerford v. Comerford, 49 A.D.2d 818 [1975]; Singer v. Singer, 52 A.D.2d 774 [1976]; see also Gifford v. Gifford, 223 A.D.2d 669 [1996] ). In Singer, this Court held that "[d]ue process requires that a hearing be held before one can be adjudged in contempt" , undoubtably because a finding of contempt may result in incarceration as, indeed, it did in this case. Here, defendant has not had any opportunity to offer "proofs [or] evidence" at a hearing on either plaintiff's contempt motion or defendant's cross motion for downward modification. The court entirely ignored the affidavits prepared by a reputable forensic accountant, and the voluminous documentation defendant presented. In the court's opinion, defendant had had "repeated days in court." However, on this motion, defendant clearly presented new financial information and an expert affidavit explaining that defendant's circumstances had changed, and not for the better. Accordingly, it held that defendant should have had a hearing to assess the new financial information and new expert affidavit.
Lifetime Maintenance Award of $200 per Week to Be Warranted Given the Identified Disparity in the Parties' Respective Incomes and the Wife's Reduced Earning Potential.
In Scarpace v Scarpace, --- N.Y.S.2d ----, 2011 WL 1797230 (N.Y.A.D. 3 Dept.) after 31 years of marriage, plaintiff (husband) commenced an action for divorce. The parties entered into a stipulation with respect to all issues with the exception of spousal maintenance. According to their stipulation, the marital property was divided such that each party would retain various liquid assets valued at approximately $580,000. The wife's share included the unencumbered former marital residence, appraised at $250,000, and a payment received from the husband in the amount of $110,000. The parties also stipulated, that they each retain their own pension rights as separate property. After a trial, Supreme Court awarded the wife maintenance in the amount of $200 per week for six years, effective May 22, 2009. On appeal the wife contended that Supreme Court erred in setting the amount of maintenance at $200 per week and in limiting its duration to six years. The wife argued that the maintenance award would impair her ability to save money and, because she would reach her intended retirement age when the maintenance award terminates, she will be forced to rely on her savings to maintain her standard of living. The Appellate Division modified the underlying judgment to he extent that the wife was to receive lifetime maintenance in the amount of $200 per week, retroactive to October 16, 2007, the date of her answer. The Appellate Division observed that "Maintenance is appropriate where, among other things, the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor". At the time of trial, both parties were in their mid-fifties and in generally good health. Throughout their marriage, they lived a financially conservative lifestyle, resulting in no college loans for their four emancipated children and no mortgage on the marital home. While the husband attended college and built his career, the wife worked various part-time and seasonal jobs and devoted her time to tending to the needs of their children. As a result, the wife did not commence her current full-time occupation with State Farm Insurance until approximately 1996, such that at the time of trial, her annual income was roughly $32,000. The husband was earning $104,000 per year as a 32-year employee of the Department of Taxation and Finance. While the husband estimated that he would receive over $5,000 per month from his pension alone upon retirement, the wife estimated that between Social Security retirement and her own pension, she would receive approximately $1,200 per month upon her retirement. The wife also testified that she was now required to pay for health and homeowner's insurance, school and property taxes and various utilities and household expenses, all of which previously had been paid for by the husband. Finally, the wife testified that, while she used to save $600 per month, since the divorce she can only afford to save $275 per month, and that she has accumulated $8,600 in credit card debt due to their son's college expenses. The Appellate Division was persuaded that an award of lifetime maintenance was appropriate here. While it was true that the parties enjoyed a modest standard of living during their marriage and that the wife not only can contribute toward her own support but also has received assets through equitable distribution, one of "the many specific considerations underlying an award of nondurational maintenance ... is the present and potential future income of the parties". Given the identified disparity in the parties' respective incomes and the wife's reduced earning potential, it found a nondurational maintenance award of $200 per week to be warranted.
Finding That MBA Made the Defendant a More Attractive Candidate for Position in the Financial Sector of the Cable Television Industry Enhanced His Earning Capacity and Was a Marital Asset.
In Huffman v Huffman, --- N.Y.S.2d ----, 2011 WL 1817309 (N.Y.A.D. 2 Dept.) Supreme Court awarded the plaintiff 30% of the value of defendants master's degree, weekly child support of $1,281.14, and maintenance for four years commencing December 1, 2008, in the amounts of $5,000 per month for the first and second years, $3,500 per month for the third year, and $2,000 per month for the fourth year, and directed him to pay to the plaintiff $90,793.02 in connection with certain bonus money. The Appellate Divison held that Supreme Court's determination of basic child support was proper. The Supreme Court providently exercised its discretion in calculating child support against $300,000 of the defendant's income based upon the standard of living that the parties' children would have enjoyed had the marriage not dissolved and upon the parties' disparate financial circumstances, which were apparent from the record. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in awarding the plaintiff maintenance for four years beginning December 2008, given the length of the parties' marriage, the plaintiff's ability to reenter the workforce, and the fact that the defendant was paying temporary support pursuant to a pendente lite order dated February 25, 2005, requiring him to pay the plaintiff $2,500 per month in maintenance retroactive to November 11, 2004. Thus, the maintenance award had to be recalculated retroactive to November 11, 2004, taking into account any credit due for amounts paid by the defendant pursuant to the pendente lite order. The Appellate Division disagreed with defendants contention that the trial court erred in concluding that his MBA degree provided him with an enhanced earning capacity subject to equitable distribution. An academic degree earned during a marriage qualifies as marital property which is subject to equitable distribution ( McGowan v. McGowan, 142 A.D.2d 355, 357). The value of a degree is the "enhanced earning capacity it affords the holder" (O'Brien v. O'Brien, 66 N.Y.2d 576, 588). Here, while the defendant presented some evidence that an MBA degree was not an actual prerequisite to his employment in various finance positions in the cable television industry, there was also ample evidence, including expert testimony, to support the Supreme Court's finding that the attainment of this degree made the defendant a more attractive candidate for a position in the financial sector of the cable television industry. Accordingly, the Supreme Court properly concluded that the MBA degree which the defendant obtained during the course of his employment enhanced his earning capacity. The Supreme Court also properly determined that the plaintiff was entitled to a 30% share of the defendant's enhanced earning capacity. Although the plaintiff did not make direct financial contributions to the husband's attainment of his MBA degree, she made substantial indirect contributions by, inter alia, supporting the husband's educational endeavors, working until August 2000 and contributing her earnings to the family, being the primary caretaker of the couple's children, cooking family meals, and participating in housekeeping responsibilities. Bonuses earned for work by a spouse during the marriage constitute marital property subject to equitable distribution, even if paid after commencement of the divorce action, and are distributed after taking income taxes into account. It saw no reason to disturb the Supreme Court's equitable distribution of the defendant's 2002 and 2003 bonuses. However, it agreed with the defendant's contention that the Supreme Court erroneously distributed his gross 2004 bonus without taking into account income taxes. Accordingly, upon remittal, to the Supreme Court the award had to be recalculated to the extent it is based upon the defendant's 2004 bonus, to take into account income taxes paid by the plaintiff.
Proper to Apply a Lack of Marketability Discount of 25% to Reflect the Risk Associated with the Illiquidity of a Close Corporation Whose Shares Cannot Be Freely Traded.
In Cooper v Cooper, --- N.Y.S.2d ----, 2011 WL 1817757 (N.Y.A.D. 2 Dept.) the parties were married on April 8, 1984, and had two children, born in 1989, and 1992, respectively. Supreme Court, inter alia, awarded the plaintiff post-divorce maintenance of $5,000 per month for a period of four years, interest of 9% per annum on installment payments of the plaintiff's distributive awards, child support of $1,192.31 per week, based upon a finding that the defendant's "CSSA income is $250,000 per year," directed the defendant to maintain a life insurance policy for the benefit of the plaintiff and the children in the value of $500,000, and awarded her counsel fees of $50,000. This action was commenced in March 2003. The defendant was the founder and owner of Triangle Electronics Group, Inc. ( Triangle), which distributed electronic components. A primary issue at trial and on appeal was the equitable distribution of the defendant's 100% interest in Triangle, which the Supreme Court determined was worth $1,625,000 on the date of commencement of the action. In so doing, the Supreme Court credited the defendant's expert. The Appellate Divison held that the determination of the fact finder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques". The testimony of the defendant's expert, which was supported by competent evidence in the record and a written report admitted into evidence, was properly credited by the Supreme Court. The defendant's expert properly applied a lack of marketability discount of 25% to reflect the risk associated with the illiquidity of a close corporation whose shares cannot be freely traded. The Supreme Court properly determined that the plaintiff was responsible for one-half of the federal tax liability of $1,371,744 incurred when the defendant filed amended income tax returns for the tax years 1999, 2000, 2001, 2002, and 2003, but that she was not responsible for New York State tax liability, or any interest and penalties as a result of the filing of the amended tax returns. Since that tax liability was incurred during the marriage, the Supreme Court properly determined that the plaintiff was responsible for part of this liability. The record established that the defendant was responsible for the delay in reporting the income declared on those amended returns and, therefore, was properly required to pay all interest and penalties. Further, under all of the circumstances of this case, including that fact that, with respect to New York State tax liability, the plaintiff was officially adjudicated an innocent spouse, the Supreme Court providently exercised its discretion in determining that the plaintiff was not responsible for any of the New York State tax liability. The Supreme Court properly exercised its discretion in awarding the plaintiff post-divorce maintenance in the sum of $5,000 per month for a period of four years, based upon the parties' standard of living during the marriage, their income, and the plaintiff's distributive awards. The amount of maintenance awarded to the plaintiff would ensure that her reasonable needs were met, while providing her with an incentive to become self-supporting. Further, the award of child support was proper. The award of counsel fees, and the denial of additional expert fees, was a provident exercise of discretion, in light of the interim awards of counsel fees and expert fees, and the Supreme Court's conclusion that the fees demanded by the plaintiff's expert were excessive. Further, the award of interest at the statutory rate of 9% per annum (see CPLR 5004), on the plaintiff's distributive awards, should the defendant elect to pay those awards in installments over a period of five years, was a provident exercise of discretion.
In Alton v Alton, --- N.Y.S.2d ----, 2011 WL 1612577 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that the defendant husband contended that the Supreme Court erred in denying his motion which were to set aside the provisions of the parties' oral, on-the-record stipulation of settlement relating to equitable distribution, maintenance, his obligation to purchase an apartment for the plaintiff wife, and the validity of the parties' prenuptial agreement, because there was no meeting of the minds on an essential material term, to wit, the purchase price of the subject apartment. It held that since a judgment was entered that purported to incorporate the terms of the putative settlement, the defendant was precluded from challenging the validity or enforceability of the settlement by way of motion, but was required either to appeal from the judgment or commence a plenary action. Since the defendant appealed from the judgment, it reached the merits of the defendant's contention that no stipulation of settlement was, in fact, consummated. It noted that in determining whether an agreement exists, the inquiry centers upon the parties' intent to be bound and whether there was a meeting of the minds regarding the material terms of the transaction . A review of the transcribed proceedings at which the parties attempted to negotiate a settlement revealed that the parties never reached an agreement on the essential and material term regarding the purchase price of the apartment. The provisions relating to the apartment purchase were intertwined and integrated with the other provisions of the disputed stipulation of settlement, i.e., the provisions relating to equitable distribution, maintenance, and the validity of the parties' prenuptial agreement. Accordingly, the Supreme Court should not have incorporated the disputed stipulation of settlement provisions into the judgment of divorce.
Best Interest of Child Outweighed Application of Exclusionary Rule in Custody Case
In Matter of Young v Young, --- N.Y.S.2d ----, 2010 WL 6622106 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which awarded the father sole custody of the parties child. It held that Family Court did not err in summarily denying the mother's motion to suppress certain evidence which she alleged was obtained illegally. In a custody case, the court is required to determine "solely what is for the best interest of the child, and what will promote its welfare and happiness, and make an award accordingly. It stated that the best interests of the child are determined by a review of the totality of the circumstances. It held that the application of the exclusionary rule to prevent the court from considering factors relevant to that determination, pertaining here to the condition of the home of a parent who was seeking custody, would have a "detrimental impact upon the fact-finding process and the State's enormous interest in protecting the welfare of children," which outweighed the deterrent effect of applying the exclusionary rule (citing Matter of Diane P., 110 A.D.2d 354, 354). It also rejected the mother's contention that the Family Court should have conducted a pretrial hearing as to the voluntariness of an admission she made and the effectiveness of her counsel in a neglect proceeding which had been brought against her. The mother testified as to these matters during the custody trial, such that the issues and her position thereon were before the Family Court. Family Court's determination that it was in the children's best interest for the father to be awarded custody had a sound and substantial basis in the record.
Well-established Precedent Overwhelmingly Supports a Party's Right to an Evidentiary Hearing Before a Finding of Contempt
In Bergman v Bergman, --- N.Y.S.2d ----, 2011 WL 1796364 (N.Y.A.D. 1 Dept.) the Appellate Division held that a hearing is required on a contempt motion when the party opposing the motion asserts a defense of financial inability to comply. Domestic Relations Law s 246(3) in pertinent part states: "Any person may assert his financial inability to comply with ... an order or judgment ... as a defense in a proceeding instituted against him ... to punish him for his failure to comply ... and if the court, upon the hearing of such contempt proceeding is satisfied from the proofs and evidence offered ... that the defendant is financially unable to comply ... it may, in its discretion, until further order of the court, make an order modifying such order or judgment...." Further, Domestic Relations Law 236(B)(9)(b) provides that a party may seek downward modification if he or she has experienced a "substantial change in circumstances:" There is no limit to the number of times a party may seek downward modification. The party must demonstrate that there has been a substantial change in circumstances to merit any downward modification. There is no right to a hearing absent a prima facie showing of entitlement to downward modification. However, well-established precedent overwhelmingly supports a party's right to an evidentiary hearing before a finding of contempt (Boritzer v. Boritzer, 137 A.D.2d 477 [1988]; Comerford v. Comerford, 49 A.D.2d 818 [1975]; Singer v. Singer, 52 A.D.2d 774 [1976]; see also Gifford v. Gifford, 223 A.D.2d 669 [1996] ). In Singer, this Court held that "[d]ue process requires that a hearing be held before one can be adjudged in contempt" , undoubtably because a finding of contempt may result in incarceration as, indeed, it did in this case. Here, defendant has not had any opportunity to offer "proofs [or] evidence" at a hearing on either plaintiff's contempt motion or defendant's cross motion for downward modification. The court entirely ignored the affidavits prepared by a reputable forensic accountant, and the voluminous documentation defendant presented. In the court's opinion, defendant had had "repeated days in court." However, on this motion, defendant clearly presented new financial information and an expert affidavit explaining that defendant's circumstances had changed, and not for the better. Accordingly, it held that defendant should have had a hearing to assess the new financial information and new expert affidavit.
Lifetime Maintenance Award of $200 per Week to Be Warranted Given the Identified Disparity in the Parties' Respective Incomes and the Wife's Reduced Earning Potential.
In Scarpace v Scarpace, --- N.Y.S.2d ----, 2011 WL 1797230 (N.Y.A.D. 3 Dept.) after 31 years of marriage, plaintiff (husband) commenced an action for divorce. The parties entered into a stipulation with respect to all issues with the exception of spousal maintenance. According to their stipulation, the marital property was divided such that each party would retain various liquid assets valued at approximately $580,000. The wife's share included the unencumbered former marital residence, appraised at $250,000, and a payment received from the husband in the amount of $110,000. The parties also stipulated, that they each retain their own pension rights as separate property. After a trial, Supreme Court awarded the wife maintenance in the amount of $200 per week for six years, effective May 22, 2009. On appeal the wife contended that Supreme Court erred in setting the amount of maintenance at $200 per week and in limiting its duration to six years. The wife argued that the maintenance award would impair her ability to save money and, because she would reach her intended retirement age when the maintenance award terminates, she will be forced to rely on her savings to maintain her standard of living. The Appellate Division modified the underlying judgment to he extent that the wife was to receive lifetime maintenance in the amount of $200 per week, retroactive to October 16, 2007, the date of her answer. The Appellate Division observed that "Maintenance is appropriate where, among other things, the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor". At the time of trial, both parties were in their mid-fifties and in generally good health. Throughout their marriage, they lived a financially conservative lifestyle, resulting in no college loans for their four emancipated children and no mortgage on the marital home. While the husband attended college and built his career, the wife worked various part-time and seasonal jobs and devoted her time to tending to the needs of their children. As a result, the wife did not commence her current full-time occupation with State Farm Insurance until approximately 1996, such that at the time of trial, her annual income was roughly $32,000. The husband was earning $104,000 per year as a 32-year employee of the Department of Taxation and Finance. While the husband estimated that he would receive over $5,000 per month from his pension alone upon retirement, the wife estimated that between Social Security retirement and her own pension, she would receive approximately $1,200 per month upon her retirement. The wife also testified that she was now required to pay for health and homeowner's insurance, school and property taxes and various utilities and household expenses, all of which previously had been paid for by the husband. Finally, the wife testified that, while she used to save $600 per month, since the divorce she can only afford to save $275 per month, and that she has accumulated $8,600 in credit card debt due to their son's college expenses. The Appellate Division was persuaded that an award of lifetime maintenance was appropriate here. While it was true that the parties enjoyed a modest standard of living during their marriage and that the wife not only can contribute toward her own support but also has received assets through equitable distribution, one of "the many specific considerations underlying an award of nondurational maintenance ... is the present and potential future income of the parties". Given the identified disparity in the parties' respective incomes and the wife's reduced earning potential, it found a nondurational maintenance award of $200 per week to be warranted.
Finding That MBA Made the Defendant a More Attractive Candidate for Position in the Financial Sector of the Cable Television Industry Enhanced His Earning Capacity and Was a Marital Asset.
In Huffman v Huffman, --- N.Y.S.2d ----, 2011 WL 1817309 (N.Y.A.D. 2 Dept.) Supreme Court awarded the plaintiff 30% of the value of defendants master's degree, weekly child support of $1,281.14, and maintenance for four years commencing December 1, 2008, in the amounts of $5,000 per month for the first and second years, $3,500 per month for the third year, and $2,000 per month for the fourth year, and directed him to pay to the plaintiff $90,793.02 in connection with certain bonus money. The Appellate Divison held that Supreme Court's determination of basic child support was proper. The Supreme Court providently exercised its discretion in calculating child support against $300,000 of the defendant's income based upon the standard of living that the parties' children would have enjoyed had the marriage not dissolved and upon the parties' disparate financial circumstances, which were apparent from the record. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in awarding the plaintiff maintenance for four years beginning December 2008, given the length of the parties' marriage, the plaintiff's ability to reenter the workforce, and the fact that the defendant was paying temporary support pursuant to a pendente lite order dated February 25, 2005, requiring him to pay the plaintiff $2,500 per month in maintenance retroactive to November 11, 2004. Thus, the maintenance award had to be recalculated retroactive to November 11, 2004, taking into account any credit due for amounts paid by the defendant pursuant to the pendente lite order. The Appellate Division disagreed with defendants contention that the trial court erred in concluding that his MBA degree provided him with an enhanced earning capacity subject to equitable distribution. An academic degree earned during a marriage qualifies as marital property which is subject to equitable distribution ( McGowan v. McGowan, 142 A.D.2d 355, 357). The value of a degree is the "enhanced earning capacity it affords the holder" (O'Brien v. O'Brien, 66 N.Y.2d 576, 588). Here, while the defendant presented some evidence that an MBA degree was not an actual prerequisite to his employment in various finance positions in the cable television industry, there was also ample evidence, including expert testimony, to support the Supreme Court's finding that the attainment of this degree made the defendant a more attractive candidate for a position in the financial sector of the cable television industry. Accordingly, the Supreme Court properly concluded that the MBA degree which the defendant obtained during the course of his employment enhanced his earning capacity. The Supreme Court also properly determined that the plaintiff was entitled to a 30% share of the defendant's enhanced earning capacity. Although the plaintiff did not make direct financial contributions to the husband's attainment of his MBA degree, she made substantial indirect contributions by, inter alia, supporting the husband's educational endeavors, working until August 2000 and contributing her earnings to the family, being the primary caretaker of the couple's children, cooking family meals, and participating in housekeeping responsibilities. Bonuses earned for work by a spouse during the marriage constitute marital property subject to equitable distribution, even if paid after commencement of the divorce action, and are distributed after taking income taxes into account. It saw no reason to disturb the Supreme Court's equitable distribution of the defendant's 2002 and 2003 bonuses. However, it agreed with the defendant's contention that the Supreme Court erroneously distributed his gross 2004 bonus without taking into account income taxes. Accordingly, upon remittal, to the Supreme Court the award had to be recalculated to the extent it is based upon the defendant's 2004 bonus, to take into account income taxes paid by the plaintiff.
Proper to Apply a Lack of Marketability Discount of 25% to Reflect the Risk Associated with the Illiquidity of a Close Corporation Whose Shares Cannot Be Freely Traded.
In Cooper v Cooper, --- N.Y.S.2d ----, 2011 WL 1817757 (N.Y.A.D. 2 Dept.) the parties were married on April 8, 1984, and had two children, born in 1989, and 1992, respectively. Supreme Court, inter alia, awarded the plaintiff post-divorce maintenance of $5,000 per month for a period of four years, interest of 9% per annum on installment payments of the plaintiff's distributive awards, child support of $1,192.31 per week, based upon a finding that the defendant's "CSSA income is $250,000 per year," directed the defendant to maintain a life insurance policy for the benefit of the plaintiff and the children in the value of $500,000, and awarded her counsel fees of $50,000. This action was commenced in March 2003. The defendant was the founder and owner of Triangle Electronics Group, Inc. ( Triangle), which distributed electronic components. A primary issue at trial and on appeal was the equitable distribution of the defendant's 100% interest in Triangle, which the Supreme Court determined was worth $1,625,000 on the date of commencement of the action. In so doing, the Supreme Court credited the defendant's expert. The Appellate Divison held that the determination of the fact finder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques". The testimony of the defendant's expert, which was supported by competent evidence in the record and a written report admitted into evidence, was properly credited by the Supreme Court. The defendant's expert properly applied a lack of marketability discount of 25% to reflect the risk associated with the illiquidity of a close corporation whose shares cannot be freely traded. The Supreme Court properly determined that the plaintiff was responsible for one-half of the federal tax liability of $1,371,744 incurred when the defendant filed amended income tax returns for the tax years 1999, 2000, 2001, 2002, and 2003, but that she was not responsible for New York State tax liability, or any interest and penalties as a result of the filing of the amended tax returns. Since that tax liability was incurred during the marriage, the Supreme Court properly determined that the plaintiff was responsible for part of this liability. The record established that the defendant was responsible for the delay in reporting the income declared on those amended returns and, therefore, was properly required to pay all interest and penalties. Further, under all of the circumstances of this case, including that fact that, with respect to New York State tax liability, the plaintiff was officially adjudicated an innocent spouse, the Supreme Court providently exercised its discretion in determining that the plaintiff was not responsible for any of the New York State tax liability. The Supreme Court properly exercised its discretion in awarding the plaintiff post-divorce maintenance in the sum of $5,000 per month for a period of four years, based upon the parties' standard of living during the marriage, their income, and the plaintiff's distributive awards. The amount of maintenance awarded to the plaintiff would ensure that her reasonable needs were met, while providing her with an incentive to become self-supporting. Further, the award of child support was proper. The award of counsel fees, and the denial of additional expert fees, was a provident exercise of discretion, in light of the interim awards of counsel fees and expert fees, and the Supreme Court's conclusion that the fees demanded by the plaintiff's expert were excessive. Further, the award of interest at the statutory rate of 9% per annum (see CPLR 5004), on the plaintiff's distributive awards, should the defendant elect to pay those awards in installments over a period of five years, was a provident exercise of discretion.
Protecting Against Internal Theft at Museums and Cultural Institutions
Earlier this month a grand jury charged Laura Phillips, the former treasurer of the Alabama Museum Association, with felony theft. The indictment alleged that she stole from the association. In February, a grand jury also charged her with stealing over $57,504 from the Carnegie Visual Arts Center where she was director. Such allegations should remind institutions to maintain vigilance over their purse strings.
From my experience as a former prosecutor and as an attorney dealing with nonprofits, the vast majority of people who work in museums and cultural institutions are honest and hardworking. When there is a problem with theft of funds, the crime typically is committed by someone inside the organization. A person who works with cash and who remains unsupervised may be tempted to "borrow" funds to cover personal expenses. As time goes by, the amount of funds stolen can grow.
From my experience as a former prosecutor and as an attorney dealing with nonprofits, the vast majority of people who work in museums and cultural institutions are honest and hardworking. When there is a problem with theft of funds, the crime typically is committed by someone inside the organization. A person who works with cash and who remains unsupervised may be tempted to "borrow" funds to cover personal expenses. As time goes by, the amount of funds stolen can grow.
Some tips to reduce internal theft include:
- ensuring board oversight of operations,
- creating an audit committee,
- involving at least two officers in money transactions,
- watching unusual behavior of the person who handles money (e.g. frequently staying late at the office to perform money transactions),
- imposing a term limit on the treasurer's position.
Chủ Nhật, 22 tháng 5, 2011
Ithaca DWI Lawyer Examines The Breathalyzer/Datamaster/the Box/The Breath Test/ The Chemical Test
Quite often I am confronted with a dilemma in my DWI cases, the question of how do I properly explain the breath test to a jury. Afterall, many people believe that this machine is accurate, is reliable, is accepted, and is the determiner of guilt or innocence in a DWI case. I have spent countless hours studying, analyzing, and dissecting this police tool of expedient-fast-cheap analysis of a person's breath.
The box spits out a number, a result, a reading and nothing more. I believe juries must look at all the evidence before they just buy the reading as a Truthful, Accurate, and Reliable number.
The Datamaster DMT (used by Upstate City, Town, and Village Police)
The issues:
1. This machine does not check blood. It measures breath alcohol. It is a better screener (qualifier) than assessor (quantifier). It indirectly takes a breath measurement, and then gives a blood alcohol number.
2. This machine operates at 34 celcius. People do not all possess a breath temperature of 93.2 F (34 celcius) because not everyone is 98.6 F (body temperature).
3. This machine only requires (by current state law and case law) yearly calibration.
4. The machine only takes ONE breath sample, ONE time. There is NO confirmation of testing. This is another expedient NYS standard. Scientific-forensic standards be damned. We would never accept (one test-one result) this from a blood test, an MRI, or an X-ray but in the world of NYS DWI ths is the standard.
5. This machine is allowed a 20% range of error by law. The simulator solution (standard of known alcohol measure) can be .01 BAC up or down (higher or lower).
6. Contamination is not only possible it is probable. The inside of the machine is never cleaned unless there is a break down. This machine has lenses, mirrors, and filters. Hundreds of people breath into this machine. How common is dust, dirt, mouth chew, smoke, and an assortment of other expectorated particles? How clean is your average police station? This is certainly not a lab environment with standards of hygiene. Forensically this is a nightmare. Consider that the machine works (operates) by passing light through a tube filled with breath. Whatever light is absorbed by alcohol in the breath determines the breath alcohol number. If other substances (crap in the tube) absorb the light you got a bigger BAC.
7. They "clean" the tube with an air blank before and/or after your test. Can you really clean a tube with an air blank?
8. The machine self checks. It basically checks itself. Can we really trust and place our faith in a computer that has no outside checks?
9. The machine allows errors, and still gives a reading. If insufficient sample comes up on the machine display the reading is still used. What insufficient sample really means is that the machine needs (requires) 1.1 liters of breath to give a read BUT will often read without that amount. Smaller sample means more concentrated alcohol. Think of it this way, two glasses of milk, one bigger, one smaller, same amount of chocolate, the one with less milk is darker chocolate milk, one with more milk is lighter chocolate milk.
Lower BAC with greater air volume, and higher BAC with lower air volume.
The problem with machine defense is this, global atacks on breath testing are not usually successful. Breath testing is here, it is accepted, and it is used nationally. In each and every DWI defense breath testing can be successfully contested (challenged) if that particular breath test, on that particular day, and with that particular individual has an issue (s). Breath testing may be cheap, inexpensive, and easy but it is my mind far from reliable in the majority of cases.
The box spits out a number, a result, a reading and nothing more. I believe juries must look at all the evidence before they just buy the reading as a Truthful, Accurate, and Reliable number.
The issues:
1. This machine does not check blood. It measures breath alcohol. It is a better screener (qualifier) than assessor (quantifier). It indirectly takes a breath measurement, and then gives a blood alcohol number.
2. This machine operates at 34 celcius. People do not all possess a breath temperature of 93.2 F (34 celcius) because not everyone is 98.6 F (body temperature).
3. This machine only requires (by current state law and case law) yearly calibration.
4. The machine only takes ONE breath sample, ONE time. There is NO confirmation of testing. This is another expedient NYS standard. Scientific-forensic standards be damned. We would never accept (one test-one result) this from a blood test, an MRI, or an X-ray but in the world of NYS DWI ths is the standard.
5. This machine is allowed a 20% range of error by law. The simulator solution (standard of known alcohol measure) can be .01 BAC up or down (higher or lower).
6. Contamination is not only possible it is probable. The inside of the machine is never cleaned unless there is a break down. This machine has lenses, mirrors, and filters. Hundreds of people breath into this machine. How common is dust, dirt, mouth chew, smoke, and an assortment of other expectorated particles? How clean is your average police station? This is certainly not a lab environment with standards of hygiene. Forensically this is a nightmare. Consider that the machine works (operates) by passing light through a tube filled with breath. Whatever light is absorbed by alcohol in the breath determines the breath alcohol number. If other substances (crap in the tube) absorb the light you got a bigger BAC.
7. They "clean" the tube with an air blank before and/or after your test. Can you really clean a tube with an air blank?
8. The machine self checks. It basically checks itself. Can we really trust and place our faith in a computer that has no outside checks?
9. The machine allows errors, and still gives a reading. If insufficient sample comes up on the machine display the reading is still used. What insufficient sample really means is that the machine needs (requires) 1.1 liters of breath to give a read BUT will often read without that amount. Smaller sample means more concentrated alcohol. Think of it this way, two glasses of milk, one bigger, one smaller, same amount of chocolate, the one with less milk is darker chocolate milk, one with more milk is lighter chocolate milk.
Lower BAC with greater air volume, and higher BAC with lower air volume.
The problem with machine defense is this, global atacks on breath testing are not usually successful. Breath testing is here, it is accepted, and it is used nationally. In each and every DWI defense breath testing can be successfully contested (challenged) if that particular breath test, on that particular day, and with that particular individual has an issue (s). Breath testing may be cheap, inexpensive, and easy but it is my mind far from reliable in the majority of cases.
A Comparison: Practicing New York City DWI Defense to Upstate DWI Defense
I just returned from Brooklyn, NY. I went to the First Annual MAN vs. Machine Seminar (What you need to understand the science of breath testing and the weapons you need to defeat it.) put on by The Legal Aid Society of the City of New York, and Steven Epstein, Esq. Steven is one of my co-authors on the new 2011 Strategies for Defending DWI Cases in New York published by West-Thomson books.
http://west.thomson.com/strategies-defending-dwi-cases-in-new-york-2011-leading-lawyers/180677/41015444/productdetail?
The conference was held at St. Francis College. I learned a great deal from some incredible defense attorneys, and an expert on breath testing. Peter Gerstenstang, who wrote the main NY DWI text (the NY bible of DWI defense) spoke on opening statements, and cross examination of the police. Peter practices all over the state but his main practice is based in Albany. He has trained the police in DWI investigation (he has played both sides).
Getting a flavor for the diversity of police procedures, investigation, and techniques around the state enhances a defense lawyer's creativity. I often run across State police (troopers), Sheriff's police (deputies), and town/village/city/univeristy police (cops) who have been trained in different locations. I think it is a great advantage to know about the different ways they investigate cases, and by getting into their law enforcement mindset it exposes weaknesses in their evidence.
So the following are the MAIN Differences between Brooklyn (Kings County), Queens (Queens County), da Bronx (Bronx County), Staten Island (Richmond County), and Manhattan (New York County) DWI Versus Upstate DWI (this includes ALL towns, cities, and villages, everything outside of these five boroughs, or what I like to refer to as the "civilized" world):
1. VIDEO: They use video in the five boroughs. There is a recording of the testing (all the testing, both breath and sobriety) back at the station. Although it is not usually back at a station but at the IDTU (Intoxicated Driver Testing Unit), and here you might have thought that you were innocent UNLESS proven guilty.
Do we (or they) assume everyone brought here is already intoxicated?
What about calling it the driver testing unit?
Anyway, any good City DWI defense lawyer is going to spend 4 hours or more watching (studying/analyzing/detailing) the video in any DWI arrest in the five boroughs, this is mandatory for the defense of the case. Video can override a jury mindset of guilt based strictly upon a machine reading and/or a police opinion. The defense must point out, in other words "highlight," everything that is or is not on that recording. As they say, "What you see is what you get."
2. JAIL: For one reason or another they like to keep people in jail for DWI in the city. I thought they would be overcrowded but as a matter of course, you may spend more time than you would care to in these jails. Upstate you are out in few hours, generally, unless you are a flight risk or caused major damage or are a hardened criminal.
3. SOBRIETY TESTING: The police in the city IMHO play fast and loose on testing. They don't follow the STANDARDIZED TESTS. They don't even bother with the HGN (Horizontal Gaze Nystagmus), which is standard both literally and figuratively outside of the city. A City DWI lawyer could hit this hard at a suppression hearing and trial. Why don't they follow the standardized protocols? They were "trained" in assessing people fairly, weren't they?
So those are the main differences, and defense wise Upstate I only get an occasional video on my cases. It is often only of the breath testing, and it does not even have audio.
Supreme Court of New York, located in Downtown Brooklyn. I love exploring and comparing Courthouses.
Check out Moses with the tablets at the main entrance. So biblical in a Ten commandments kinda way, who heard of separation of Church and State, lol. I love it!
Giving the law to the people. No DWI law at this point in time, no cars. BTW New York State enacted the first DWI law in 1910, and the first "implied consent" DWI law in 1953. You had to consent to a test (of blood, breath, or urine) if you drove in the state or else your license would be suspended for one year. NYS was also the first to lower the BAC from .15 in 1972. The BAC was set to .15 in 1938.
We are very progressive as a state in some areas, and not so much in others. 14 states (and counting) have medical marijuana, but NOT progressive, liberal NY?
I walked across the Brooklyn Bridge on this trip. I grew up in Brooklyn, and never "walked" the bridge until this past week. I had gone over by train, bus, and car... never by foot. A great experience.
Manhattan Courthouse. I love the words above the columns:
http://west.thomson.com/strategies-defending-dwi-cases-in-new-york-2011-leading-lawyers/180677/41015444/productdetail?
The conference was held at St. Francis College. I learned a great deal from some incredible defense attorneys, and an expert on breath testing. Peter Gerstenstang, who wrote the main NY DWI text (the NY bible of DWI defense) spoke on opening statements, and cross examination of the police. Peter practices all over the state but his main practice is based in Albany. He has trained the police in DWI investigation (he has played both sides).
Getting a flavor for the diversity of police procedures, investigation, and techniques around the state enhances a defense lawyer's creativity. I often run across State police (troopers), Sheriff's police (deputies), and town/village/city/univeristy police (cops) who have been trained in different locations. I think it is a great advantage to know about the different ways they investigate cases, and by getting into their law enforcement mindset it exposes weaknesses in their evidence.
So the following are the MAIN Differences between Brooklyn (Kings County), Queens (Queens County), da Bronx (Bronx County), Staten Island (Richmond County), and Manhattan (New York County) DWI Versus Upstate DWI (this includes ALL towns, cities, and villages, everything outside of these five boroughs, or what I like to refer to as the "civilized" world):
1. VIDEO: They use video in the five boroughs. There is a recording of the testing (all the testing, both breath and sobriety) back at the station. Although it is not usually back at a station but at the IDTU (Intoxicated Driver Testing Unit), and here you might have thought that you were innocent UNLESS proven guilty.
Do we (or they) assume everyone brought here is already intoxicated?
What about calling it the driver testing unit?
Anyway, any good City DWI defense lawyer is going to spend 4 hours or more watching (studying/analyzing/detailing) the video in any DWI arrest in the five boroughs, this is mandatory for the defense of the case. Video can override a jury mindset of guilt based strictly upon a machine reading and/or a police opinion. The defense must point out, in other words "highlight," everything that is or is not on that recording. As they say, "What you see is what you get."
2. JAIL: For one reason or another they like to keep people in jail for DWI in the city. I thought they would be overcrowded but as a matter of course, you may spend more time than you would care to in these jails. Upstate you are out in few hours, generally, unless you are a flight risk or caused major damage or are a hardened criminal.
3. SOBRIETY TESTING: The police in the city IMHO play fast and loose on testing. They don't follow the STANDARDIZED TESTS. They don't even bother with the HGN (Horizontal Gaze Nystagmus), which is standard both literally and figuratively outside of the city. A City DWI lawyer could hit this hard at a suppression hearing and trial. Why don't they follow the standardized protocols? They were "trained" in assessing people fairly, weren't they?
So those are the main differences, and defense wise Upstate I only get an occasional video on my cases. It is often only of the breath testing, and it does not even have audio.
We are very progressive as a state in some areas, and not so much in others. 14 states (and counting) have medical marijuana, but NOT progressive, liberal NY?
"The True Adminstration of Justice is the Firmest Pillar of Good Government"
All I can say is Amen to that! Practicing DWI Defense in Elmira City Court, Chemung County New York
Chemung county sits just a little South of Ithaca, NY, and it's a straight shot down Route 13 over hill and dale, so to speak. The great thing about going to Elmira besides the mall, and the wide assortment of restaurants (Ithaca has NO Olive Garden, NO TGIF, NO Red Lobster, NO Sam's Club, NO Macy's, etc. etc. etc) is the ease of Elmira City Court. They have two main Court rooms, and the pace here is brisk.
One of the Judges ran through an arraignment (initial appearance) so fast here once my head was spinning in comparison to the slower town courts.
Just last week I was here for a DWI PTC (Pre-Trial Conference), interestingly they keep you locked out from the Courtroom (one at a time here) for security reasons and there was no A/C running so it was hot. Apparently the A/C is set on a main timer, and it was not time for it to run. The Judge, the prosecutor, and I were sweating while discussing the case, it was comical, talk about cruel and unusual punishment.
Anyway, the beautiful old City Courthouse sits two blocks down from a DD (Dunkin Donuts), and a nice gas station so basic needs are easily met. There is usually plenty of on the street inexpensive meter parking. Just across the street, and a few blocks down is the Chemung County Courthouse as well.
Beautiful Elmira City Court, I love this old building.
Elmira City Court Judges:
The Honorable Thomas E. Ramich and the Honorable Steven W. Forrest
Located at:
317 E. Church Street
Elmira, NY 14901
The Corner of Lake Street and Church Street
Phone: 607-737-5681
ElmiraCityCourt@courts.state.ny.us
Chemung County Court. Just across the street and two blocks down from Elmira City Court.
Felony cases are processed here. Has a grand old Courtroom upstairs.
Located at:
224 Lake St
Elmira, NY 14901
Chemung County Judge: The Honorable Peter C. Buckley
County Court Judge & Surrogate, Chemung County
224 Lake Street, P.O. Box 588
Elmira, NY 14902
(607) 737-2940
Chemung County Judge: The Honorable James T. Hayden
Secretary: Greta Malone
Law Clerk: Louise Herzl-Betz
County Court Chambers
Justice Building
203-209 William St.
P. O. Box 588
Elmira, NY 14902-0588
607-737-2923
Fax 607-737-2913
One of the Judges ran through an arraignment (initial appearance) so fast here once my head was spinning in comparison to the slower town courts.
Just last week I was here for a DWI PTC (Pre-Trial Conference), interestingly they keep you locked out from the Courtroom (one at a time here) for security reasons and there was no A/C running so it was hot. Apparently the A/C is set on a main timer, and it was not time for it to run. The Judge, the prosecutor, and I were sweating while discussing the case, it was comical, talk about cruel and unusual punishment.
Anyway, the beautiful old City Courthouse sits two blocks down from a DD (Dunkin Donuts), and a nice gas station so basic needs are easily met. There is usually plenty of on the street inexpensive meter parking. Just across the street, and a few blocks down is the Chemung County Courthouse as well.
Beautiful Elmira City Court, I love this old building.
Elmira City Court Judges:
The Honorable Thomas E. Ramich and the Honorable Steven W. Forrest
Located at:
317 E. Church Street
Elmira, NY 14901
The Corner of Lake Street and Church Street
Phone: 607-737-5681
ElmiraCityCourt@courts.state.ny.us
Felony cases are processed here. Has a grand old Courtroom upstairs.
Located at:
224 Lake St
Elmira, NY 14901
Chemung County Judge: The Honorable Peter C. Buckley
County Court Judge & Surrogate, Chemung County
224 Lake Street, P.O. Box 588
Elmira, NY 14902
(607) 737-2940
Chemung County Judge: The Honorable James T. Hayden
Secretary: Greta Malone
Law Clerk: Louise Herzl-Betz
County Court Chambers
Justice Building
203-209 William St.
P. O. Box 588
Elmira, NY 14902-0588
607-737-2923
Fax 607-737-2913
Thứ Hai, 16 tháng 5, 2011
Practice Tips: The First Interview With a New Client
by
Jill Paperno
Second Assistant Monroe County Public Defender
The first meeting with a client can set the tone for the rest of the relationship. Like a first date, you want to make a good impression, let the client know that you are smart, caring, and the person they want be with for the forseeable future. And like a first date, you should prepare.
1. Appearances do matter
I am a public defender, so I have a bias to overcome with many clients. I believe my clients are entitled to feel that they are being represented by a professional, so when I meet clients, I try to appear..well…professional. Even if it’s a week-end, if it’s the first time I’m meeting with a client I will wear appropriate “lawyer clothes”. I think it helps instill confidence in the client. I think this is even more important for the young attorney, who may appear too inexperienced to the client. The suit, or jacket and whatever, convey a degree of professionalism that may help to overcome clients’ concerns. Sure, I know that we all want to be liked for who we are, but let’s face it, we live in a superficial world, and that’s not going to change tomorrow.
2. Prepare
Before you meet with a client, make sure you’ve reviewed the accusatory instruments and any other documents you may have, the applicable statutes defining the offenses the client is charged with, and the relevant sentencing statutes. Try to find out if the client is on probation or parole, and what impact that will have on your client’s custodial status and future sentence, if any. If you have a copy of the client’s statement, and it makes out a possible defense, read the statute or law relating to the defense.
Bring a legal pad, business cards and a pen, as well as the file and other relevant documents.
3. The meeting
Make sure you are meeting in a location that is private enough that your conversation cannot be heard. In the jail, this may be a challenge, but you can request private rooms during business hours.
I always shake a client’s hand when I meet them for the first time (and every time afterwards). I think it conveys a professional and respectful relationship. I also refer to clients by their last names – Mr. or Ms. X or Y. If they ask me to call them by their first names I will. This is simply a style choice, but I think it sets the tone for the relationship.
At the first meeting you may wish to have a checklist of topics to cover. Consider the following questions (which you may not reach completely in the first meeting, but make sure you hit the first two):
1. Where were you born (not “Are you a Citizen?”) – People do not always know their citizenship status, but they know where they were born. If they were not born in the U.S. contact an immigration expert before resolving the case with any plea or disposition. Note the client’s citizenship or lack of citizenship on your file and do not take any plea unless you know that you have made this inquiry.
2. Are you on probation, post release supervision or parole? It is important to obtain this information because any plea, even with a conditional discharge, may result in a sentence in prison or jail if the plea establishes a violation of probation or parole. (Make sure you know the difference between probation and parole – probation is community supervision in lieu of jail, and parole or post release supervision is supervision following a prison sentence.) Mark on your file whether the defendant is on probation or parole, and never take a plea if your file does not reflect that you have that information, know the consequences, and have informed your client. If the client has federal charges pending, contact the Federal Defender's Office to coordinate representation.
3. Make sure you ask about other pending state and federal charges (Do you have any charges pending in any other court?) If the client does, you will want to coordinate representation with the other attorneys handling that client's cases, and make sure the client is represented on all of his or her charges. It does not benefit the client to settle your case with a great disposition if there are other charges pending that result in large sentences, especially if your disposition has reduced or eliminated the jail time credit. (Jail time credit will be discussed in some future post - but for now, consult with others if you are not familiar with the impact of the resolution of your charges on charges pending in other courts, and take a look at Penal Law Sections 70.30. Actually, take several looks at it - it's a very difficult statute to understand.)
4. Have you ever been convicted of a crime? If so, what was the crime, when was the conviction, where was it, and what was the sentence? (This question comes later in the discussion.) Prior convictions may elevate misdemeanors to felonies, or may cause a client to be facing a mandatory prison sentence or a higher sentence. Check out the crimetime website to get some guidance on sentences, but make sure you confirm by reviewing the statutes yourself.
5. Family and friend names and contact information – get a list of names, phone numbers and addresses. Find out if any are charged in the current offense (you can’t talk to them). If your client is in jail, are there any your client can stay with if s/he is released? Who can be contacted if you can’t reach the client?
6. Confirm the client’s contact information and get alternative contact information.
7. Are there family members the client wants you to discuss the case with? Are there family members the client does not want you to discuss the case with? (Although a client may want you to speak with certain friends or family, you should decide whether this could potentially harm the case. Discussing a plea with parents of a young client may be a good idea; discussing a client’s cooperation with police with anyone is a really bad idea.)
8. Did the client have a cell phone at the time of arrest? Where is it now? If the client had a phone, were there photographs or texts on it? What were they? (Important in sex offense, porn, drug and weapons cases especially, and possibly alibi cases, and cases in which the client may have communicated with other suspects prior to the offense.
9. Where was the client arrested? Questions related to this topic will assist you in beginning to explore Fourth Amendment issues.
10. Was the client questioned by police? If so, where and when did each officer speak with the client. Learn in as much detail as possible who said what and in what sequence. (Don’t ask if the client made a statement – the client may think if it’s not in writing it doesn’t count.) Try to find out if a discussion took place in a room which appeared to have a camera. If so, there may be a video-recorded statement. Take your time and seek as much information as possible about any questioning by the police.
11. Were there any witnesses to the event? If so, where do they live, what are their names, how do you reach them?
12. Does the client have any history of medical treatment? Is s/he on medication? Does s/he have any history of mental health treatment? Any history of head injury? Does the client receive SSI? Does the client have any history of alcohol or drug abuse? Treatment? If I think the client may be developmentally or learning disabled I may ask the client to read something to me – such as a form part of the accusatories – and tell me what it says. I try to do it in a supportive and non-threatening way, explaining it helps me understand what they understand. Bear in mind that if a client says s/he can’t read because his glasses are no good or s/he doesn’t have his or her glasses, it may mean the client is illiterate.
13. Where did the client go to school? What grade did s/he reach? Was s/he in regular classes or special education classes?
14. If you are considering a bail application, the client’s history of employment, ties to the area, criminal history, history of bench warrants, and any other information that reflects a likelihood the client will return to court. Do not rely exclusively on the client’s representations about criminal history and bench warrants as this is checked by the court and if the client is inaccurate (either intentionally or accidentally) you’ve got some ‘splainin’ to do.
15. Find out if the client has any social networking sites. Consider having them made “private”.
16. In addition to all of the above, you may wish to get a detailed account of everything that happened leading up to the arrest. If you do not do it at this point, you will want to do it as soon as possible, so that the details are fresh in your client’s mind. There are times I may choose not to get details, but it depends on the individual case.
I always advise a client not to speak on the phone at the jail about his or her case at the first meeting (and usually all subsequent meetings). In appropriate cases, I advise them not to discuss their cases on their phones from any other location. Make sure that your client knows and understands that phone calls at the jail are monitored, recorded and provided to prosecutors.
I also advise the client that s/he should not discuss the case with anybody – ANYBODY- else. I explain confidentiality, and that it doesn’t work if the client tells another person about the incident. I explain that other inmates can’t wait to get information from a defendant that they can turn over to prosecutors to improve their sentences.
I also advise clients that if they are on parole, they should not waive their preliminary hearings. I write out a note for the client to give to the parole officer which states, “I do not wish to waive my preliminary hearing. I want to have my preliminary hearing.” I also write a note to the parole officer or probation officer “I do not wish to discuss my case with you based on the advice of my lawyer.” I tell the client to read the note or hand the note to the probation officer. I remind them that they should not even admit curfew violations, as those will support a finding that the client has violated probation or parole.
Clients sometimes ask for copies of their records. I caution them – especially clients with high publicity cases, homicides or sex offenses, that if other inmates gain access to their documents it could affect their safety (in sex cases) and other inmates may choose to cooperate against them, claiming they have information from the client, when in reality they obtained it from the records.
I explain to a client:
1. The upcoming court proceedings, including explanations in felonies of preliminary hearing, grand jury and indictment;
2. The possibility there may be a plea offer, and the steps we should take if we want to try to obtain one (and the fact that it is my job to relate to the client a plea offer)
3. The client’s right to testify before the grand jury (and usually my advice that it is not a good idea at that stage of the case, but that I have to know if they want to in order to advise the prosecutor in time);
4. The client’s right to a jury trial, and the likelihood that the case will either be resolved by plea or trial (and lesser possibilities of grand jury dismissal or dismissal based on motions);
5. Perhaps legal issues that seem to be presented by this early view of the case (with a reminder that we do not have discovery and will not get it until later in the case).
Perhaps more important than the advice you give is the manner you use, and the way in which you listen. Make sure that you do not appear judgmental, even if speaking with a client charged with the most heinous of cases. Make good eye contact, and listen as the client speaks. In fact, you may want to follow the rules you give your kids about how they’re supposed to interact. Generally, don’t interrupt unless you have to focus the client. Even if you think you know the answer or the right decision for the client, don’t rush the client or cut them off – you’re much more likely to get them on board if they feel like they’ve been heard. And don’t rule out a ridiculous story until you’ve investigated. There are many times the strangest stories may actually be true.
Jill Paperno
Second Assistant Monroe County Public Defender
The first meeting with a client can set the tone for the rest of the relationship. Like a first date, you want to make a good impression, let the client know that you are smart, caring, and the person they want be with for the forseeable future. And like a first date, you should prepare.
1. Appearances do matter
I am a public defender, so I have a bias to overcome with many clients. I believe my clients are entitled to feel that they are being represented by a professional, so when I meet clients, I try to appear..well…professional. Even if it’s a week-end, if it’s the first time I’m meeting with a client I will wear appropriate “lawyer clothes”. I think it helps instill confidence in the client. I think this is even more important for the young attorney, who may appear too inexperienced to the client. The suit, or jacket and whatever, convey a degree of professionalism that may help to overcome clients’ concerns. Sure, I know that we all want to be liked for who we are, but let’s face it, we live in a superficial world, and that’s not going to change tomorrow.
2. Prepare
Before you meet with a client, make sure you’ve reviewed the accusatory instruments and any other documents you may have, the applicable statutes defining the offenses the client is charged with, and the relevant sentencing statutes. Try to find out if the client is on probation or parole, and what impact that will have on your client’s custodial status and future sentence, if any. If you have a copy of the client’s statement, and it makes out a possible defense, read the statute or law relating to the defense.
Bring a legal pad, business cards and a pen, as well as the file and other relevant documents.
3. The meeting
Make sure you are meeting in a location that is private enough that your conversation cannot be heard. In the jail, this may be a challenge, but you can request private rooms during business hours.
I always shake a client’s hand when I meet them for the first time (and every time afterwards). I think it conveys a professional and respectful relationship. I also refer to clients by their last names – Mr. or Ms. X or Y. If they ask me to call them by their first names I will. This is simply a style choice, but I think it sets the tone for the relationship.
At the first meeting you may wish to have a checklist of topics to cover. Consider the following questions (which you may not reach completely in the first meeting, but make sure you hit the first two):
1. Where were you born (not “Are you a Citizen?”) – People do not always know their citizenship status, but they know where they were born. If they were not born in the U.S. contact an immigration expert before resolving the case with any plea or disposition. Note the client’s citizenship or lack of citizenship on your file and do not take any plea unless you know that you have made this inquiry.
2. Are you on probation, post release supervision or parole? It is important to obtain this information because any plea, even with a conditional discharge, may result in a sentence in prison or jail if the plea establishes a violation of probation or parole. (Make sure you know the difference between probation and parole – probation is community supervision in lieu of jail, and parole or post release supervision is supervision following a prison sentence.) Mark on your file whether the defendant is on probation or parole, and never take a plea if your file does not reflect that you have that information, know the consequences, and have informed your client. If the client has federal charges pending, contact the Federal Defender's Office to coordinate representation.
3. Make sure you ask about other pending state and federal charges (Do you have any charges pending in any other court?) If the client does, you will want to coordinate representation with the other attorneys handling that client's cases, and make sure the client is represented on all of his or her charges. It does not benefit the client to settle your case with a great disposition if there are other charges pending that result in large sentences, especially if your disposition has reduced or eliminated the jail time credit. (Jail time credit will be discussed in some future post - but for now, consult with others if you are not familiar with the impact of the resolution of your charges on charges pending in other courts, and take a look at Penal Law Sections 70.30. Actually, take several looks at it - it's a very difficult statute to understand.)
4. Have you ever been convicted of a crime? If so, what was the crime, when was the conviction, where was it, and what was the sentence? (This question comes later in the discussion.) Prior convictions may elevate misdemeanors to felonies, or may cause a client to be facing a mandatory prison sentence or a higher sentence. Check out the crimetime website to get some guidance on sentences, but make sure you confirm by reviewing the statutes yourself.
5. Family and friend names and contact information – get a list of names, phone numbers and addresses. Find out if any are charged in the current offense (you can’t talk to them). If your client is in jail, are there any your client can stay with if s/he is released? Who can be contacted if you can’t reach the client?
6. Confirm the client’s contact information and get alternative contact information.
7. Are there family members the client wants you to discuss the case with? Are there family members the client does not want you to discuss the case with? (Although a client may want you to speak with certain friends or family, you should decide whether this could potentially harm the case. Discussing a plea with parents of a young client may be a good idea; discussing a client’s cooperation with police with anyone is a really bad idea.)
8. Did the client have a cell phone at the time of arrest? Where is it now? If the client had a phone, were there photographs or texts on it? What were they? (Important in sex offense, porn, drug and weapons cases especially, and possibly alibi cases, and cases in which the client may have communicated with other suspects prior to the offense.
9. Where was the client arrested? Questions related to this topic will assist you in beginning to explore Fourth Amendment issues.
10. Was the client questioned by police? If so, where and when did each officer speak with the client. Learn in as much detail as possible who said what and in what sequence. (Don’t ask if the client made a statement – the client may think if it’s not in writing it doesn’t count.) Try to find out if a discussion took place in a room which appeared to have a camera. If so, there may be a video-recorded statement. Take your time and seek as much information as possible about any questioning by the police.
11. Were there any witnesses to the event? If so, where do they live, what are their names, how do you reach them?
12. Does the client have any history of medical treatment? Is s/he on medication? Does s/he have any history of mental health treatment? Any history of head injury? Does the client receive SSI? Does the client have any history of alcohol or drug abuse? Treatment? If I think the client may be developmentally or learning disabled I may ask the client to read something to me – such as a form part of the accusatories – and tell me what it says. I try to do it in a supportive and non-threatening way, explaining it helps me understand what they understand. Bear in mind that if a client says s/he can’t read because his glasses are no good or s/he doesn’t have his or her glasses, it may mean the client is illiterate.
13. Where did the client go to school? What grade did s/he reach? Was s/he in regular classes or special education classes?
14. If you are considering a bail application, the client’s history of employment, ties to the area, criminal history, history of bench warrants, and any other information that reflects a likelihood the client will return to court. Do not rely exclusively on the client’s representations about criminal history and bench warrants as this is checked by the court and if the client is inaccurate (either intentionally or accidentally) you’ve got some ‘splainin’ to do.
15. Find out if the client has any social networking sites. Consider having them made “private”.
16. In addition to all of the above, you may wish to get a detailed account of everything that happened leading up to the arrest. If you do not do it at this point, you will want to do it as soon as possible, so that the details are fresh in your client’s mind. There are times I may choose not to get details, but it depends on the individual case.
I always advise a client not to speak on the phone at the jail about his or her case at the first meeting (and usually all subsequent meetings). In appropriate cases, I advise them not to discuss their cases on their phones from any other location. Make sure that your client knows and understands that phone calls at the jail are monitored, recorded and provided to prosecutors.
I also advise the client that s/he should not discuss the case with anybody – ANYBODY- else. I explain confidentiality, and that it doesn’t work if the client tells another person about the incident. I explain that other inmates can’t wait to get information from a defendant that they can turn over to prosecutors to improve their sentences.
I also advise clients that if they are on parole, they should not waive their preliminary hearings. I write out a note for the client to give to the parole officer which states, “I do not wish to waive my preliminary hearing. I want to have my preliminary hearing.” I also write a note to the parole officer or probation officer “I do not wish to discuss my case with you based on the advice of my lawyer.” I tell the client to read the note or hand the note to the probation officer. I remind them that they should not even admit curfew violations, as those will support a finding that the client has violated probation or parole.
Clients sometimes ask for copies of their records. I caution them – especially clients with high publicity cases, homicides or sex offenses, that if other inmates gain access to their documents it could affect their safety (in sex cases) and other inmates may choose to cooperate against them, claiming they have information from the client, when in reality they obtained it from the records.
I explain to a client:
1. The upcoming court proceedings, including explanations in felonies of preliminary hearing, grand jury and indictment;
2. The possibility there may be a plea offer, and the steps we should take if we want to try to obtain one (and the fact that it is my job to relate to the client a plea offer)
3. The client’s right to testify before the grand jury (and usually my advice that it is not a good idea at that stage of the case, but that I have to know if they want to in order to advise the prosecutor in time);
4. The client’s right to a jury trial, and the likelihood that the case will either be resolved by plea or trial (and lesser possibilities of grand jury dismissal or dismissal based on motions);
5. Perhaps legal issues that seem to be presented by this early view of the case (with a reminder that we do not have discovery and will not get it until later in the case).
Perhaps more important than the advice you give is the manner you use, and the way in which you listen. Make sure that you do not appear judgmental, even if speaking with a client charged with the most heinous of cases. Make good eye contact, and listen as the client speaks. In fact, you may want to follow the rules you give your kids about how they’re supposed to interact. Generally, don’t interrupt unless you have to focus the client. Even if you think you know the answer or the right decision for the client, don’t rush the client or cut them off – you’re much more likely to get them on board if they feel like they’ve been heard. And don’t rule out a ridiculous story until you’ve investigated. There are many times the strangest stories may actually be true.
Important New Decisions - May 16, 2011
In Determining Parents' Respective Obligations Towards Cost of College, a Court Should Not Take into Account Any College Loans for Which the Student Is Responsible
In Matter of Yorke v Yorke, --- N.Y.S.2d ----, 2011 WL 1499108 (N.Y.A.D. 2 Dept.) the parties were the parents of a child who was a college student beginning in the Fall 2007 semester. By orders dated October 16, 2007, and December 20, 2007, respectively, the father was directed to pay 83% of the college tuition for the child prior to March 2009, and 82% of the tuition for the child subsequent to March 2009. Those orders provided that the father was not responsible for contributing towards the child's room and board at college. In 2009 the mother commenced a proceeding, alleging that the father had failed to contribute the required amount to college tuition for the five semesters from Fall 2007 through and including Fall 2009. Family Court issued an order dated March 29, 2010, in which that court determined the father's obligation for college costs for the child and found that the father was entitled to a credit in the sum of $3,407. In the order the Family Court deducted financial aid, including "Stafford" loans, prior to determining the father's share of college costs for the child. The Appellate Division held that in determining the parents' respective obligations towards the cost of college, a court should not take into account any college loans for which the student is responsible. Therefore, any loans for which the child is responsible should not have been deducted from the college costs prior to determining the father's pro rata share of those costs. Here, the record did not indicate whether the child was responsible for repayment of the Stafford loans reflected on the statements from the college. Accordingly, the matter was remitted to the Family Court for clarification of this matter. In addition, the Family Court erred in applying the total amount of scholarships, grants, and student loans for which the child was not responsible ( financial aid). First, the Family Court should have calculated the total cost of attending college, including tuition, and room and board. Next, it should have determined the percentage of that total cost which was covered by financial aid. That percentage should then have been applied to the tuition portion. Finally, the father's share of the net tuition, after deducting the pro rata financial aid, should have been calculated based upon his percentage of responsibility . For example, if tuition is $12,000 and room and board is $8,000, totaling $20,000, and financial aid is $15,000, or 75% of the total college cost, the net tuition after pro rata financial aid would be $3,000. The father's pro rata tuition obligation should then be applied to that amount to determine his contribution to tuition. Accordingly, the matter was remitted to the Family Court for recalculation of the father's obligation to contribute towards college costs.
No Reduction of Child Support Arrears Accrued Prior to the Making of Application for Modification Even Where Noncustodial Parent Establishes His Income Is less than Poverty Income Guidelines Amount
In Matter of Fisher v Nathan, --- N.Y.S.2d ----, 2011 WL 1499660 (N.Y.A.D. 2 Dept.), the Appellate Division held that Family Court properly denied the father's objection to the order of the Judicial Hearing Officer, which denied his motion for a temporary downward modification of his obligation to pay arrears for his daughter's college expenses. Although child support arrears cease to accrue above the sum of $500 where a noncustodial parent can establish that his or her income is less than or equal to poverty income guidelines amount for a single person, as reported by the United States Department of Health and Human Services (see Family Ct Act 413[1][g] ), a "modification, set aside or vacatur [of a child support obligation set forth in a judgment or order] shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section" (Family Ct Act 451). "In that regard, contrary to the father's claim, child support arrears may not be reduced or annulled even where the defaulting party shows good cause for failing to make an application for relief from the judgment or order of support prior to the accrual of arrears or where requiring the party to pay the arrears will result in a grievous injustice" (Matter of Mandelowitz v. Bodden, 68 AD3d 871, 875; see Matter of Dox v. Tynan, 90 N.Y.2d 166, 173-174). Here, the father failed to establish that any decline in business sustained by his solo law practice as a result of his illness left him below the Federal poverty income guidelines. Accordingly, his obligation for child support arrears continued to accrue, and there is no basis in law to adjust or reduce his obligation to pay child support arrears.
Direction in Judgment to Pay "One-half of the Mortgage and Real Estate Charges of the Marital Residence and Half of the Cost of Any Repair to the Home in Excess of $750.00" Constituted an Improper Open-ended Obligation
In Mosso v Mosso--- N.Y.S.2d ----, 2011 WL 1733948 (N.Y.A.D. 2 Dept.) defendant appealed from so much of a judgment of the Supreme Court as (1) imputed an annual income to him of $52,000 for the purpose of calculating his child support obligations, (2) directed him to pay $1,160 per month in child support retroactive to the date of the commencement of the action, (3) directed him to pay one-half of the mortgage and real estate tax charges of the marital residence and half the cost of any repair to the home in excess of $750, (4) directed him to pay 100% of a $30,000 home equity loan on the marital residence, (5) awarded the plaintiff $13,777 from certain bank accounts, and (6) awarded the plaintiff exclusive use and occupancy of the marital residence until the last of the parties' children reaches majority. The Appellate Divison held that Supreme Court did not improvidently exercise its discretion in it imputing an annual income to the defendant of $52,000 for the purpose of calculating his child support obligations. However, in calculating the child support award, the Supreme Court's direction that the defendant pay both child support and half of the carrying charges on the marital residence resulted in an improper double shelter allowance. The matter was remitted to the Supreme Court to recalculate the child support award ‘taking into account the shelter costs incurred by the defendant in providing housing to the plaintiff and the minor children". It held that Supreme Court also improperly awarded retroactive child support to August 1, 2007, the date of the commencement of the action, since the plaintiff did not request child support until she filed an amended complaint on August 27, 2007. It directed that since an award of child support may be made "effective as of the date of the application therefor" (Domestic Relations Law 236[B][7][a] ), on remittal, the Supreme Court's new child support award should be made retroactive to August 27, 2007. It found the defendant's contention that the plaintiff was not entitled to any retroactive child support because she later withdrew her amended complaint was without merit. The record established that the amended complaint was withdrawn solely to relinquish a cause of action for divorce on the ground of cruel and inhuman treatment, and that the plaintiff's request for child support was intended to remain a part of the action. In addition, the matter had to be remitted to the Supreme Court because the Supreme Court's directive that the defendant pay "one-half of the mortgage and real estate charges of the marital residence and half of the cost of any repair to the home in excess of $750.00" constituted an improper open-ended obligation (citing 22 NYCRR subtitle D, Ch III, subchapter B0. The direction to pay for repairs and other maintenance should state a maximum monthly or yearly amount. The Appellate Divison held that Supreme Court also improvidently exercised its discretion in directing that the defendant be 100% responsible for repayment of a $30,000 loan drawn on a home equity line of credit. Expenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties. Although the defendant should be solely responsible for repaying $10,000 of this loan, which he used to pay his attorney's fees, the burden of repaying the remaining $20,000 should be shared by the parties since this debt was incurred during the marriage and the evidence at trial failed to establish a compelling reason why the defendant should bear the cost of repayment alone. The Appellate Division held that Supreme Court did not err in granting the plaintiff and the parties' children the exclusive use and occupancy of the marital residence until the youngest child reaches the age of 18. Exclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage. In making this determination, the need of the custodial parent to occupy the marital residence is weighed against the financial need of the parties. The evidence at trial established that the parties were capable of maintaining the marital residence and that suitable comparable housing could not be obtained at a lesser cost than the cost to maintain the marital residence. Further, the defendant failed to establish an immediate need for his share of the proceeds of the sale of the marital residence. The defendant failed to meet his burden of establishing that certain assets in a bank account, acquired during the marriage, were not marital property subject to equitable distribution. Accordingly, the Supreme Court properly provided for the equitable distribution of those funds.
Must be Sufficient Evidence to Support Interim Counsel Fee Award for Services Previously Rendered
In Mimran v Mimran, --- N.Y.S.2d ----, 2011 WL 1496465 (N.Y.A.D. 1 Dept.) Supreme Court directed defendant to pay plaintiff $200,000 as interim counsel fees. The Appellate Division reversed. It held that regardless of whether plaintiff otherwise made a sufficient showing to support an award of interim counsel fees defendant was correct that neither plaintiff nor her counsel provided adequate documentation of the amount of fees already paid, the amount required for experts, the dates and nature of the services previously rendered, or the number of hours of work to be performed. Thus, there was insufficient evidence to support an award for outstanding fees already incurred and no basis upon which an appropriate prospective fee award could be determined.
Agreement Provision for Full Indemnification of Attorneys' Fees in Enforcement Proceedings must Be Enforced
In Colyer v Colyer,--- N.Y.S.2d ----, 2011 WL 1496486 (N.Y.A.D. 1 Dept.) upon granting plaintiff's motion for an order compelling defendant to pay college and medical expenses of the parties' daughter, Supreme Court awarded plaintiff $20,000 in attorneys' fees. The Appellate Division increased the attorneys' fees to $54,467.50 and otherwise affirmed. It noted that Plaintiff's entitlement to attorneys' fees in connection with the instant proceeding arose from the parties' separation agreement, which provided for defendant's full indemnification of fees if he defaulted on his obligation to pay the daughter's college expenses and certain medical expenses and it became necessary for plaintiff to bring proceedings to enforce his obligations. Thus, plaintiff was entitled to collect the full amount of her attorneys' fees in connection with the successful enforcement proceeding. Although defendant complained generally about the reasonableness of the total amount of attorneys' fees sought, he did not contend that any amounts should be excluded as unrelated to the successful portion of the application. Thus, there was no basis for reducing the total amount, which was $45,270.
Liberal Policy to Vacate Default Judgment in Matrimonial Cases Where Meritorious Position with Respect to Ancillary Issues
In Osman v Osman, --- N.Y.S.2d ----, 2011 WL 1601891 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court improvidently exercised its discretion in denying the defendant's motion to vacate her default in appearing for a trial on the ancillary economic issues attendant to the parties' divorce. Although a party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious cause of action or defense, the courts of this state have adopted a liberal policy toward vacating defaults in matrimonial actions. In matrimonial actions, "[t]he State's interest in the marital res and allied issues ... favor[s] dispositions on the merits". The record revealed that the defendant former wife was taken directly from court to the hospital by ambulance on December 15, 2009, where she underwent medical tests, including a chest x-ray and EKG, before being released with a diagnosis of anxiety. Under these circumstances, it found that the wife's claim that the anxiety attack she suffered on December 15, 2009, caused her to misapprehend the Supreme Court's instructions as to the time she was required to return to court the next day, constituted a reasonable excuse for her failure to appear on the morning of December 16, 2009. Furthermore, the parties had been married for 27 years at the time of the commencement of the action, and the plaintiff former husband allegedly was the primary wage earner throughout the marriage. Thus, the wife had a potentially meritorious position with respect to all ancillary economic issues, including maintenance, which were resolved after the inquest held upon her default.
Appeal Dismissed for Failure to Include All Transcripts of Proceedings
In Kociubinski v Kociubinski,--- N.Y.S.2d ----, 2011 WL 1631591 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that it is the obligation of the appellant to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court. The record must contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings. Here, the plaintiff appealed from an order and judgment of the Supreme Court which, inter alia, granted the defendant's motion, after a hearing, for an award of child support arrears pursuant to the parties' judgment of divorce and stipulation of settlement. However, the plaintiff's failure to provide this Court with the full hearing transcript renders the record on appeal inadequate to enable the Court to reach an informed decision on the merits and, thus, the appeal was dismissed.
In Matter of Yorke v Yorke, --- N.Y.S.2d ----, 2011 WL 1499108 (N.Y.A.D. 2 Dept.) the parties were the parents of a child who was a college student beginning in the Fall 2007 semester. By orders dated October 16, 2007, and December 20, 2007, respectively, the father was directed to pay 83% of the college tuition for the child prior to March 2009, and 82% of the tuition for the child subsequent to March 2009. Those orders provided that the father was not responsible for contributing towards the child's room and board at college. In 2009 the mother commenced a proceeding, alleging that the father had failed to contribute the required amount to college tuition for the five semesters from Fall 2007 through and including Fall 2009. Family Court issued an order dated March 29, 2010, in which that court determined the father's obligation for college costs for the child and found that the father was entitled to a credit in the sum of $3,407. In the order the Family Court deducted financial aid, including "Stafford" loans, prior to determining the father's share of college costs for the child. The Appellate Division held that in determining the parents' respective obligations towards the cost of college, a court should not take into account any college loans for which the student is responsible. Therefore, any loans for which the child is responsible should not have been deducted from the college costs prior to determining the father's pro rata share of those costs. Here, the record did not indicate whether the child was responsible for repayment of the Stafford loans reflected on the statements from the college. Accordingly, the matter was remitted to the Family Court for clarification of this matter. In addition, the Family Court erred in applying the total amount of scholarships, grants, and student loans for which the child was not responsible ( financial aid). First, the Family Court should have calculated the total cost of attending college, including tuition, and room and board. Next, it should have determined the percentage of that total cost which was covered by financial aid. That percentage should then have been applied to the tuition portion. Finally, the father's share of the net tuition, after deducting the pro rata financial aid, should have been calculated based upon his percentage of responsibility . For example, if tuition is $12,000 and room and board is $8,000, totaling $20,000, and financial aid is $15,000, or 75% of the total college cost, the net tuition after pro rata financial aid would be $3,000. The father's pro rata tuition obligation should then be applied to that amount to determine his contribution to tuition. Accordingly, the matter was remitted to the Family Court for recalculation of the father's obligation to contribute towards college costs.
No Reduction of Child Support Arrears Accrued Prior to the Making of Application for Modification Even Where Noncustodial Parent Establishes His Income Is less than Poverty Income Guidelines Amount
In Matter of Fisher v Nathan, --- N.Y.S.2d ----, 2011 WL 1499660 (N.Y.A.D. 2 Dept.), the Appellate Division held that Family Court properly denied the father's objection to the order of the Judicial Hearing Officer, which denied his motion for a temporary downward modification of his obligation to pay arrears for his daughter's college expenses. Although child support arrears cease to accrue above the sum of $500 where a noncustodial parent can establish that his or her income is less than or equal to poverty income guidelines amount for a single person, as reported by the United States Department of Health and Human Services (see Family Ct Act 413[1][g] ), a "modification, set aside or vacatur [of a child support obligation set forth in a judgment or order] shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section" (Family Ct Act 451). "In that regard, contrary to the father's claim, child support arrears may not be reduced or annulled even where the defaulting party shows good cause for failing to make an application for relief from the judgment or order of support prior to the accrual of arrears or where requiring the party to pay the arrears will result in a grievous injustice" (Matter of Mandelowitz v. Bodden, 68 AD3d 871, 875; see Matter of Dox v. Tynan, 90 N.Y.2d 166, 173-174). Here, the father failed to establish that any decline in business sustained by his solo law practice as a result of his illness left him below the Federal poverty income guidelines. Accordingly, his obligation for child support arrears continued to accrue, and there is no basis in law to adjust or reduce his obligation to pay child support arrears.
Direction in Judgment to Pay "One-half of the Mortgage and Real Estate Charges of the Marital Residence and Half of the Cost of Any Repair to the Home in Excess of $750.00" Constituted an Improper Open-ended Obligation
In Mosso v Mosso--- N.Y.S.2d ----, 2011 WL 1733948 (N.Y.A.D. 2 Dept.) defendant appealed from so much of a judgment of the Supreme Court as (1) imputed an annual income to him of $52,000 for the purpose of calculating his child support obligations, (2) directed him to pay $1,160 per month in child support retroactive to the date of the commencement of the action, (3) directed him to pay one-half of the mortgage and real estate tax charges of the marital residence and half the cost of any repair to the home in excess of $750, (4) directed him to pay 100% of a $30,000 home equity loan on the marital residence, (5) awarded the plaintiff $13,777 from certain bank accounts, and (6) awarded the plaintiff exclusive use and occupancy of the marital residence until the last of the parties' children reaches majority. The Appellate Divison held that Supreme Court did not improvidently exercise its discretion in it imputing an annual income to the defendant of $52,000 for the purpose of calculating his child support obligations. However, in calculating the child support award, the Supreme Court's direction that the defendant pay both child support and half of the carrying charges on the marital residence resulted in an improper double shelter allowance. The matter was remitted to the Supreme Court to recalculate the child support award ‘taking into account the shelter costs incurred by the defendant in providing housing to the plaintiff and the minor children". It held that Supreme Court also improperly awarded retroactive child support to August 1, 2007, the date of the commencement of the action, since the plaintiff did not request child support until she filed an amended complaint on August 27, 2007. It directed that since an award of child support may be made "effective as of the date of the application therefor" (Domestic Relations Law 236[B][7][a] ), on remittal, the Supreme Court's new child support award should be made retroactive to August 27, 2007. It found the defendant's contention that the plaintiff was not entitled to any retroactive child support because she later withdrew her amended complaint was without merit. The record established that the amended complaint was withdrawn solely to relinquish a cause of action for divorce on the ground of cruel and inhuman treatment, and that the plaintiff's request for child support was intended to remain a part of the action. In addition, the matter had to be remitted to the Supreme Court because the Supreme Court's directive that the defendant pay "one-half of the mortgage and real estate charges of the marital residence and half of the cost of any repair to the home in excess of $750.00" constituted an improper open-ended obligation (citing 22 NYCRR subtitle D, Ch III, subchapter B0. The direction to pay for repairs and other maintenance should state a maximum monthly or yearly amount. The Appellate Divison held that Supreme Court also improvidently exercised its discretion in directing that the defendant be 100% responsible for repayment of a $30,000 loan drawn on a home equity line of credit. Expenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties. Although the defendant should be solely responsible for repaying $10,000 of this loan, which he used to pay his attorney's fees, the burden of repaying the remaining $20,000 should be shared by the parties since this debt was incurred during the marriage and the evidence at trial failed to establish a compelling reason why the defendant should bear the cost of repayment alone. The Appellate Division held that Supreme Court did not err in granting the plaintiff and the parties' children the exclusive use and occupancy of the marital residence until the youngest child reaches the age of 18. Exclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage. In making this determination, the need of the custodial parent to occupy the marital residence is weighed against the financial need of the parties. The evidence at trial established that the parties were capable of maintaining the marital residence and that suitable comparable housing could not be obtained at a lesser cost than the cost to maintain the marital residence. Further, the defendant failed to establish an immediate need for his share of the proceeds of the sale of the marital residence. The defendant failed to meet his burden of establishing that certain assets in a bank account, acquired during the marriage, were not marital property subject to equitable distribution. Accordingly, the Supreme Court properly provided for the equitable distribution of those funds.
Must be Sufficient Evidence to Support Interim Counsel Fee Award for Services Previously Rendered
In Mimran v Mimran, --- N.Y.S.2d ----, 2011 WL 1496465 (N.Y.A.D. 1 Dept.) Supreme Court directed defendant to pay plaintiff $200,000 as interim counsel fees. The Appellate Division reversed. It held that regardless of whether plaintiff otherwise made a sufficient showing to support an award of interim counsel fees defendant was correct that neither plaintiff nor her counsel provided adequate documentation of the amount of fees already paid, the amount required for experts, the dates and nature of the services previously rendered, or the number of hours of work to be performed. Thus, there was insufficient evidence to support an award for outstanding fees already incurred and no basis upon which an appropriate prospective fee award could be determined.
Agreement Provision for Full Indemnification of Attorneys' Fees in Enforcement Proceedings must Be Enforced
In Colyer v Colyer,--- N.Y.S.2d ----, 2011 WL 1496486 (N.Y.A.D. 1 Dept.) upon granting plaintiff's motion for an order compelling defendant to pay college and medical expenses of the parties' daughter, Supreme Court awarded plaintiff $20,000 in attorneys' fees. The Appellate Division increased the attorneys' fees to $54,467.50 and otherwise affirmed. It noted that Plaintiff's entitlement to attorneys' fees in connection with the instant proceeding arose from the parties' separation agreement, which provided for defendant's full indemnification of fees if he defaulted on his obligation to pay the daughter's college expenses and certain medical expenses and it became necessary for plaintiff to bring proceedings to enforce his obligations. Thus, plaintiff was entitled to collect the full amount of her attorneys' fees in connection with the successful enforcement proceeding. Although defendant complained generally about the reasonableness of the total amount of attorneys' fees sought, he did not contend that any amounts should be excluded as unrelated to the successful portion of the application. Thus, there was no basis for reducing the total amount, which was $45,270.
Liberal Policy to Vacate Default Judgment in Matrimonial Cases Where Meritorious Position with Respect to Ancillary Issues
In Osman v Osman, --- N.Y.S.2d ----, 2011 WL 1601891 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court improvidently exercised its discretion in denying the defendant's motion to vacate her default in appearing for a trial on the ancillary economic issues attendant to the parties' divorce. Although a party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious cause of action or defense, the courts of this state have adopted a liberal policy toward vacating defaults in matrimonial actions. In matrimonial actions, "[t]he State's interest in the marital res and allied issues ... favor[s] dispositions on the merits". The record revealed that the defendant former wife was taken directly from court to the hospital by ambulance on December 15, 2009, where she underwent medical tests, including a chest x-ray and EKG, before being released with a diagnosis of anxiety. Under these circumstances, it found that the wife's claim that the anxiety attack she suffered on December 15, 2009, caused her to misapprehend the Supreme Court's instructions as to the time she was required to return to court the next day, constituted a reasonable excuse for her failure to appear on the morning of December 16, 2009. Furthermore, the parties had been married for 27 years at the time of the commencement of the action, and the plaintiff former husband allegedly was the primary wage earner throughout the marriage. Thus, the wife had a potentially meritorious position with respect to all ancillary economic issues, including maintenance, which were resolved after the inquest held upon her default.
Appeal Dismissed for Failure to Include All Transcripts of Proceedings
In Kociubinski v Kociubinski,--- N.Y.S.2d ----, 2011 WL 1631591 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that it is the obligation of the appellant to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court. The record must contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings. Here, the plaintiff appealed from an order and judgment of the Supreme Court which, inter alia, granted the defendant's motion, after a hearing, for an award of child support arrears pursuant to the parties' judgment of divorce and stipulation of settlement. However, the plaintiff's failure to provide this Court with the full hearing transcript renders the record on appeal inadequate to enable the Court to reach an informed decision on the merits and, thus, the appeal was dismissed.
Thứ Sáu, 13 tháng 5, 2011
Questions About The DWI Blood Test: Do you have to? How long does it take to get the results?
Some of the DWI cases I handle don't involve the taking of a breath sample to check for alcohol (and/or drugs) but of blood. I guess the first question some people ask is "do I have to give my blood?"
In other words, "do I have to consent?" In an accident with injuries in New York State the Police can demand a blood sample but in many other situations it is your choice. Just like you can refuse a breath test, you can also refuse a blood test.
You have a legal right to say NO! Just like they can not invade your home, they (the government) can not invade your body without your permission. Now refusing has consequences, they will involve a civil fine, a hearing to revoke your license, and a longer period of time with NO license.
The worst part of any Refusal DWI case is the loss of complete license privileges. This may not be a big deal for city dwellers but for those that live and work in the country (around these parts it's all country) it is a real hardship. For those that need a license to drive "for" their jobs it can mean termination of employment.
Second Issue is that the Court can not suspend your license without a BAC result of .08 or more. In fact the police can not even charge you with the "Per Se" DWI (for blood or breath) without a test result. You will only be charged at the outset with Common Law DWI (VTL 1192 (3)).
Blood tests take time to process, sometimes 4 to 6 weeks. So your attorney should not allow them (the Court) to suspend your driving privileges prematurely. They need to have a certified test result to do that. Although the Judge could use a catch all suspension statute (if he thinks you are a danger to yourself or others). In all my years of practice I have only seen this happen once.
Blood testing is not perfect either. The taking of blood usually involves civilians (not the police), and they do not always follow proper protocols and procedures (which are numerous and specific). Sometimes a blood case is easier to defend than a breath case depending on the circumstances.
Well enough about blood for one blog.
In other words, "do I have to consent?" In an accident with injuries in New York State the Police can demand a blood sample but in many other situations it is your choice. Just like you can refuse a breath test, you can also refuse a blood test.
You have a legal right to say NO! Just like they can not invade your home, they (the government) can not invade your body without your permission. Now refusing has consequences, they will involve a civil fine, a hearing to revoke your license, and a longer period of time with NO license.
The worst part of any Refusal DWI case is the loss of complete license privileges. This may not be a big deal for city dwellers but for those that live and work in the country (around these parts it's all country) it is a real hardship. For those that need a license to drive "for" their jobs it can mean termination of employment.
Second Issue is that the Court can not suspend your license without a BAC result of .08 or more. In fact the police can not even charge you with the "Per Se" DWI (for blood or breath) without a test result. You will only be charged at the outset with Common Law DWI (VTL 1192 (3)).
Blood tests take time to process, sometimes 4 to 6 weeks. So your attorney should not allow them (the Court) to suspend your driving privileges prematurely. They need to have a certified test result to do that. Although the Judge could use a catch all suspension statute (if he thinks you are a danger to yourself or others). In all my years of practice I have only seen this happen once.
Blood testing is not perfect either. The taking of blood usually involves civilians (not the police), and they do not always follow proper protocols and procedures (which are numerous and specific). Sometimes a blood case is easier to defend than a breath case depending on the circumstances.
Well enough about blood for one blog.
Incredible Testimony Renders Searches Lawful
by
Andrew D. Correia,
First Assistant Wayne County Public Defender
The Court of Appeals recently issued a decision on two consolidated cases (People v Brannon and People v Fernandez (2011 NY Slip Op 03676, _ NY3d _ [5/11/11) which set forth the level of knowledge a police officer must possess before, consistent with DeBour, he or she has reasonable suspicion to believe an individual possesses a gravity knife as opposed to a legal pocketknife.
In People v Brannon , the officer testified that the defendant’s behavior was “somewhat suspicious” in not wanting to walk near the officers. The officer observed a hinged top of a knife in a back pocket. He asked the defendant to stop twice before he complied. The officer saw the outline of what he believed to be a knife. When asked, Defendant admitted he had a knife. The offficer frisked defendant and took the knife. It turned out to be a gravity knife. Officer claimed 4 ½ years experience and 24 previous arrests for the same crime. However he stated that the knife had appeared to him to be a “typical pocketknife.”
In People v Fernandez, the officer stopped the defendant for walking at 12:30 AM with a partially visible knife clipped to his front right pants pocket, the top or “head” of the knife protruding in plain view. The officer approached and “retrieved the weapon” asking defendant if he had any other weapons. Defendant stated he had another knife in his left jacket pocket. Both knives were opened and confirmed to be gravity knives. The officer claimed 4 ½ years experience and 300 arrests involving gravity knives. He described the difference between a knife and a gravity knife. He said that gravity knives are often clipped to a pocket with the ‘head” sticking up outside the pocket.
The issue in these cases was whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.
The Court held that the search in Brannon was bad, but not for the reason you might think, such as: no one can know if a pocket knife is a gravity knife until it is seized and opened. Instead, the Court reasoned that since the police officer was “unable to testify that he suspected or believed it to be gravity knife”, it was a bad search and the indictment was dismissed. Although, Mr. Brannon was, thus, able to win, this decision potentially provides a path to conviction for every other person searched by a police officer, who unlike the officer in Brannon, who is more willing and able to testify that the knife appeared to be a gravity knife. Especially since, when the police guess wrong, and it’s just a regular pocketknife, that police action will likely never see judicial review.
In Fernandez, the officer testified that, based on his remarkable weapon-gathering experience [averaging about one gravity knife every 5.4 days for his entire career at the time of his testimony] that gravity knives are commonly carried clipped and sticking out of the pocket. Despite the fact that, as pointed out by Judge Jones in dissent, a gravity knife can only be confirmed by its operation, this speculative information, couched in terms of the officer’s experience, was enough to persuade the other judges on the Court that this was a lawful search. Thus, the boastful and imaginative officer is rewarded.
Andrew D. Correia,
First Assistant Wayne County Public Defender
The Court of Appeals recently issued a decision on two consolidated cases (People v Brannon and People v Fernandez (2011 NY Slip Op 03676, _ NY3d _ [5/11/11) which set forth the level of knowledge a police officer must possess before, consistent with DeBour, he or she has reasonable suspicion to believe an individual possesses a gravity knife as opposed to a legal pocketknife.
In People v Brannon , the officer testified that the defendant’s behavior was “somewhat suspicious” in not wanting to walk near the officers. The officer observed a hinged top of a knife in a back pocket. He asked the defendant to stop twice before he complied. The officer saw the outline of what he believed to be a knife. When asked, Defendant admitted he had a knife. The offficer frisked defendant and took the knife. It turned out to be a gravity knife. Officer claimed 4 ½ years experience and 24 previous arrests for the same crime. However he stated that the knife had appeared to him to be a “typical pocketknife.”
In People v Fernandez, the officer stopped the defendant for walking at 12:30 AM with a partially visible knife clipped to his front right pants pocket, the top or “head” of the knife protruding in plain view. The officer approached and “retrieved the weapon” asking defendant if he had any other weapons. Defendant stated he had another knife in his left jacket pocket. Both knives were opened and confirmed to be gravity knives. The officer claimed 4 ½ years experience and 300 arrests involving gravity knives. He described the difference between a knife and a gravity knife. He said that gravity knives are often clipped to a pocket with the ‘head” sticking up outside the pocket.
The issue in these cases was whether, under the circumstances, the officer possessed specific and articulable facts from which he or she inferred that the defendant was carrying a gravity knife.
The Court held that the search in Brannon was bad, but not for the reason you might think, such as: no one can know if a pocket knife is a gravity knife until it is seized and opened. Instead, the Court reasoned that since the police officer was “unable to testify that he suspected or believed it to be gravity knife”, it was a bad search and the indictment was dismissed. Although, Mr. Brannon was, thus, able to win, this decision potentially provides a path to conviction for every other person searched by a police officer, who unlike the officer in Brannon, who is more willing and able to testify that the knife appeared to be a gravity knife. Especially since, when the police guess wrong, and it’s just a regular pocketknife, that police action will likely never see judicial review.
In Fernandez, the officer testified that, based on his remarkable weapon-gathering experience [averaging about one gravity knife every 5.4 days for his entire career at the time of his testimony] that gravity knives are commonly carried clipped and sticking out of the pocket. Despite the fact that, as pointed out by Judge Jones in dissent, a gravity knife can only be confirmed by its operation, this speculative information, couched in terms of the officer’s experience, was enough to persuade the other judges on the Court that this was a lawful search. Thus, the boastful and imaginative officer is rewarded.
Albany Mayor set to veto backyard chicken law
See this link for the details from todays Timesunion.
http://www.timesunion.com/local/article/Jennings-drops-hatchet-on-chicken-law-1377708.php
http://www.timesunion.com/local/article/Jennings-drops-hatchet-on-chicken-law-1377708.php
Thứ Năm, 12 tháng 5, 2011
Attorney Arnold E. DiJoseph III of Podlofsky & Orange Simply Didn't File His Client's Papers, No Excuse Given
I'm going to try to expose as many lawyers as I hear about who do not do their jobs, in a new section. Send me cases!!
Thanks,
Betsy Combier
Casali v Cyran
2011 NY Slip Op 03791
Decided on May 3, 2011
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 3, 2011
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
JEFFREY A. COHEN, JJ.
2009-11669
(Index No. 20640/05)
[*1]Frank Casali, appellant,
v
Daniel J. Cyran, etc., respondent, et al., defendant.
Podlofsky & Orange, LLP (Arnold E. DiJoseph, P.C., New York,
N.Y. [Arnold E. DiJoseph III], of counsel), for appellant.
Vardaro & Helwig, LLP, White Plains, N.Y. (Edward J.
Guardaro, Jr., and Terence S. Reynolds of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered October 16, 2009, which denied his motion to vacate an order of the same court entered August 28, 2009, upon his default, granting the motion of the defendant Daniel J. Cyran for summary judgment dismissing the complaint insofar as asserted against that defendant.
ORDERED that the order entered October 16, 2009, is affirmed, with costs.
To vacate his default, the plaintiff was required to demonstrate a reasonable excuse for the default and potentially meritorious opposition to the motion (see CPLR 5015[a]; Legaretta v Ekhstor, 74 AD3d 899; Rivera v Komor, 69 AD3d 833; Nowell v NYU Med. Ctr., 55 AD3d 573). The plaintiff's excuse for failing to oppose the motion of the defendant Daniel J. Cyran for summary judgment dismissing the compaint insofar as asserted against Cyran can only be classified as law office failure. Although the Supreme Court has the discretion to excuse a default resulting from law office failure (see CPLR 2005), here, the plaintiff's attorney, in his affirmation, admitted that there was "no excuse, reasonable or otherwise." Additionally, the plaintiff failed to establish that he had potentially meritorious opposition to the motion (see Bollino v Hitzig, 34 AD3d 711). Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate the prior order granting Cyran's motion for summary judgment dismissing the complaint insofar as asserted against Cyran.
RIVERA, J.P., DICKERSON, HALL and COHEN, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk of the Court
Thanks,
Betsy Combier
Casali v Cyran
2011 NY Slip Op 03791
Decided on May 3, 2011
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 3, 2011
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
JEFFREY A. COHEN, JJ.
2009-11669
(Index No. 20640/05)
[*1]Frank Casali, appellant,
v
Daniel J. Cyran, etc., respondent, et al., defendant.
Podlofsky & Orange, LLP (Arnold E. DiJoseph, P.C., New York,
N.Y. [Arnold E. DiJoseph III], of counsel), for appellant.
Vardaro & Helwig, LLP, White Plains, N.Y. (Edward J.
Guardaro, Jr., and Terence S. Reynolds of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered October 16, 2009, which denied his motion to vacate an order of the same court entered August 28, 2009, upon his default, granting the motion of the defendant Daniel J. Cyran for summary judgment dismissing the complaint insofar as asserted against that defendant.
ORDERED that the order entered October 16, 2009, is affirmed, with costs.
To vacate his default, the plaintiff was required to demonstrate a reasonable excuse for the default and potentially meritorious opposition to the motion (see CPLR 5015[a]; Legaretta v Ekhstor, 74 AD3d 899; Rivera v Komor, 69 AD3d 833; Nowell v NYU Med. Ctr., 55 AD3d 573). The plaintiff's excuse for failing to oppose the motion of the defendant Daniel J. Cyran for summary judgment dismissing the compaint insofar as asserted against Cyran can only be classified as law office failure. Although the Supreme Court has the discretion to excuse a default resulting from law office failure (see CPLR 2005), here, the plaintiff's attorney, in his affirmation, admitted that there was "no excuse, reasonable or otherwise." Additionally, the plaintiff failed to establish that he had potentially meritorious opposition to the motion (see Bollino v Hitzig, 34 AD3d 711). Accordingly, the Supreme Court properly denied the plaintiff's motion to vacate the prior order granting Cyran's motion for summary judgment dismissing the complaint insofar as asserted against Cyran.
RIVERA, J.P., DICKERSON, HALL and COHEN, JJ., concur.
ENTER:
Matthew G. Kiernan
Clerk of the Court
Chủ Nhật, 8 tháng 5, 2011
Guilty Pleas and the Mentally Ill Defendant
Courts needs to be particularly careful in accepting a guilty plea from a defendant known to be mentally ill. There are twin dangers in such cases. First, the plea may not be knowing, intelligent, and voluntary. Second, the mental illness might negate the crime charges.
Thus, in People v DeWolf (155 AD2d 995 [4th Dept 1989]), the Appellate Division, Fourth Department held that where the court was aware when guilty plea was entered that defendant pleading guilty to manslaughter was under medication for treatment of schizophrenia and had frequently suffered hallucinations and paranoid delusions, and further evidence of defendant's lengthy history of mental illness was submitted in support of defendant's motion to withdraw his plea, defendant should have been permitted to withdraw plea.
Without citing DeWolf,the Fourth Department, in People v Mox (2011 NY Slip Op 03759 [4th Dept 5/6/11]) has again held that a court erred in denying a motion to withdraw a guilty plea from a mentally ill defendant. The Court explained that
Thus, in People v DeWolf (155 AD2d 995 [4th Dept 1989]), the Appellate Division, Fourth Department held that where the court was aware when guilty plea was entered that defendant pleading guilty to manslaughter was under medication for treatment of schizophrenia and had frequently suffered hallucinations and paranoid delusions, and further evidence of defendant's lengthy history of mental illness was submitted in support of defendant's motion to withdraw his plea, defendant should have been permitted to withdraw plea.
Without citing DeWolf,the Fourth Department, in People v Mox (2011 NY Slip Op 03759 [4th Dept 5/6/11]) has again held that a court erred in denying a motion to withdraw a guilty plea from a mentally ill defendant. The Court explained that
"Although the contention of defendant that his plea was not knowingly, intelligently and voluntarily entered survives his valid waiver of the right to appeal, defendant failed to preserve that contention for our review by failing to move to withdraw the plea or to vacate the judgment of conviction on the ground[] now raised" (People v VanDeViver, 56 AD3d 1118, 1118, lv denied 11 NY3d 931, 12 NY3d 788; see People v McKeon, 78 AD3d 1617, 1618; People v Johnson, 60 AD3d 1496, lv denied 12 NY3d 926). We agree with defendant, however, that this is one of those rare cases in which preservation is not required because "the defendant's recitation of the facts underlying the crime pleaded to clearly cast[] significant doubt upon the defendant's guilt or otherwise call[ed] into question the voluntariness of the plea" (People v Lopez, 71 NY2d 662, 666). County Court therefore had a "duty to inquire further to ensure that defendant's guilty plea [was] knowing and voluntary" (id.), and we conclude that the court failed to fulfill that duty. "[A]t a minimum the record of the . . . plea proceedings must reflect . . . that defendant's responses to the court's subsequent questions removed the doubt about defendant's guilt" (People v Ocasio, 265 AD2d 675, 678). Here, defendant's plea allocution did not remove such doubt with respect to the intent element of manslaughter in the first degree (§ 125.20 [2]; see People v McCollum, 23 AD3d 199). Indeed, defendant's plea allocution suggested that his underlying schizoaffective disorder, for which he was unmedicated, caused him to be in a "psychotic state" at the time of the crime. Thus, defendant's plea allocution in fact negated the element of intent, and the court should not have "accept[ed] the plea without making further inquiry to ensure that defendant [understood] the nature of the charge and that the plea [was] intelligently entered" (Lopez, 71 NY2d at 666).
Thứ Tư, 4 tháng 5, 2011
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