US Claims SLAM Lacks Legal Standing—Asserts That Mummy Mask is Illegal Contraband —Discovery Reveals More Information

In the latest round of papers filed in court last week, lawyers for the US Attorney’s Office in St. Louis sought to strike the St. Louis Art Museum’s legal claim in the federal lawsuit involving the mummy mask of Ka-Nefer-Nefer. Federal authorities sought forfeiture of the mask in March after the museum filed for a declaratory judgment in February seeking quiet title to the artifact. Both cases were filed in federal district court in St. Louis.

Federal attorneys, in their July 27 pleading, contend that SLAM’s “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum.” The government argues that Egypt’s patrimony law, which gives ownership rights of cultural property to the Egyptians, makes it impossible for the SLAM to own the mummy mask. Therefore, SLAM has no legal standing to assert that it can own the mask.

The government’s brief analogizes SLAM’s claim to the mask as similar to asserting ownership over cocaine—one cannot legally claim ownership. Since the mask cannot be owned by the museum, the museum lacks standing to claim ownership, the government argues.

SLAM says that it has standing to be a legal party in the case because it bought the mask and it possesses it.

The government first disputed SLAM’s legal standing in a July 7 motion. Government attorneys filed the pleading following the receipt of interrogatory answers by SLAM. While the museum wrote that it objected to having to answer questions about how it acquired title to the mask or having to identify documents that would support its claim to lawful ownership, SLAM, nevertheless, answered the interrogatories without waving these objections.

The museum supplied the following information:

• It purchased the mummy mask for $499,000 from Phoenix Ancient Art of Geneva, Switzerland around April 3, 1998.

• Phoenix Ancient Art warranted in a purchase and sale agreement that it had title to the mask and could properly transfer title.

• Phoenix provided provenance information to SLAM before the purchase. “According to Phoenix, in or about 1995, it had purchased the Mask from Ms. Zuzi Jelinek, who in or about the early 1960’s, had purchased the Mask from the Kaloterna (or Kaliterna) private collection,” the interrogatory answer relates.

• The museum conducted a provenance investigation to determine if the mask was stolen by contacting INTERPOL, the Missouri Highway Patrol, the Art Loss Register, and the former director of the Museum of Egyptian Antiquities in Cairo, Dr. Mohammed Saleh.

• The museum conducted an investigation through Swiss legal counsel to determine if there were any liens or encumbrances on the mask. No encumbrances were found.

• Swiss legal counsel confirmed Jelinek’s address.

• The museum contacted Dr. Saleh, who advised SLAM to contact another US museum and who did not say that the mask was stolen or “advise the museum against purchasing the Mask.”

SLAM also provided a spreadsheet of 19 documents, which it claims supports the museum’s legal interest in the mummy mask. The documents can be categorized as a purchase agreement, a bill of sale, letters, and emails.

Missing from the documents list is a purchase or sales agreement between Jenilek and Pheonix Ancient Art. SLAM claimed in past court filings that such a transaction would have occurred in 1995. SLAM, nevertheless, includes on the list of documents a 1997 fax from Phoenix that purportedly attaches a letter of provenance from Jenilek.

Also missing from the documents list are shipping papers or import papers describing the mask’s entry into the United States. Import papers generally describe a package’s date of entry, location of entry, country of origin, value, and contents. The court papers suggest that the mummy mask traveled from Switzerland to the United States in 1998, but this information remains unclear. The mask must have been imported into the United States at some time and at a specific point of entry. But the question of whether papers exist documenting the importation of the Egyptian mummy mask, valued at several thousands of dollars, remains unanswered thus far.

Ithaca Cortland DWI Lawyer: When is a Day NOT 24 Hours?

Today is my trick question day. People sometimes have to do some Jail time. This is differentiated from Prison time. Jail is the local county place, in Tompkins county you are in my mind, relatively safe, I like to joke tater tots and Monopoly, because that is what I smell and see when I visit.

The way the penal system works is you get to spend time with fellow prisoners/jailers in pods (small groups of inmates) in county jail unless you are real bad. Generally, the worse you (don't get along or play well with others) are the less time, and the less people you get to spend time with. The really bad people get solitary confinement (they get to be completely alone). Prison means going into the deep state system.

1. A day is not 24 hours when it is a jail/prison day. Even five minutes spent in the county lock up counts as ONE FULL DAY. Check into jail at 11:55pm, and you have one full day credit.

2. A jail sentence is usually 2/3 time. Meaning that 6 months is really 4 months. 30 days is really 20 days. Time spent on weekends from Friday evening to Sunday evening counts as 3 FULL DAYS even though you spent a small part of Friday and half of Sunday in Jail.

3. Lately I have seen more and more Judges giving short sentences of a weekend or two for first time DWI cases. It is still a small minority but it is an emerging trend. For people who violate their conditional discharges, and probationary sentences jail is inevitable. Understanding your options, and how much time you are really looking at is important. This is especially true if your sentence can be limited to only weekends. The advantage of weekend jail is maintaining (as in keeping) your job, and of course your family relationships.

4. Potentially, violations can bring up to 15 days in jail. Misdemeanors up to a year in jail. Felonies more than a year of jail, and usually mean Prison time at those longer terms of confinement.

If you have any questions about your New York State DWI, criminal, or drug case give me a call at 607-229-5184 or email me at newman.lawrence@gmail.com.

Smuggling Arrest and the Law Governing African Elephant Ivory

Federal agents seized approximately one ton of elephant ivory smuggled over three years through JFK International Airport in New York. They arrested Philadelphia art dealer Victor Gordon for allegedly committing acts of conspiracy and smuggling and for violating the Lacey Act, which protects wildlife and other natural resources. He is charged with unlawfully importing and selling African elephant ivory. More details and photos of the extensive ivory haul can be found at http://www.blogger.com/www.justice.gov/usao/nye/pr/2011/2011jul26.html and cityroom.blogs.nytimes.com/2011/07/26/art-dealer-charged-with-smuggling-ivory-into-u-s/. Also see http://www.justice.gov/usao/nye/pr/2011/2011jul26.html.

The current charges remind us about the laws governing the trade and possession of African ivory. African ivory is a heavily regulated item because of the protections afforded the African elephant under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Endangered Species Act.

The rules governing the possession and trade of African elephant ivory in the United States can be summarized as follows:

- It is illegal to own, sell, or export crafted ivory that was imported into the United States after 1989 and which was less than 100 years old when the crafted ivory came across the US border.

- It is illegal to own, sell, or export uncrafted ivory that was imported into the United States after 1989. The age of the ivory does not matter.

- It is legal to own, sell, or export crafted or uncrafted ivory that was imported into the United States before 1989.

Three Clinical Counselors at Daytop Village in Queens Are Charged With Insurance Fraud

DA: Daytop Counselors Filed False Reports

North Country Gazette, 26 of July , 2011 at 4:09 pm

QUEENS—Three clinical counselors at Daytop Village in Far Rockaway, which provides substance abuse treatment to adults and teens, have been charged with insurance fraud, conspiracy and other crimes for allegedly filing false progress reports with the courts on behalf of a patient in exchange for his obtaining for them what they believed to be stolen merchandise.

Kasheen Bolden, 40, of Brooklyn, Claudette Fickling, 60, of Long Island, and Miguel Aviles, 46, of New Jersey, are variously charged with third degree insurance fraud, first-degree offering a false instrument for filing, first- and second-degree falsifying business records, third-degree criminal possession of stolen property, fifth-degree conspiracy, fourth-degree criminal facilitation, fifth-degree attempted criminal possession of stolen property and attempted petit larceny.

If convicted, the defendants each face up to seven years in prison.

Prosecutors said that the three defendants were employed as clinical counselors at Daytop Village’s Adult Intake and Assessment Unit, located at 316 Beach 65th St. in Far Rockaway, Queens. An individual who is sent to Daytop by any Criminal, County, Supreme or District Court in the State of New York initially goes to the Far Rockaway location for assessment and treatment by clinical counselors. Progress reports are then filed with the New York State Unified Court System.

According to the charges, between May 2010 and this month, Bolden, Fickling and Aviles provided unauthorized benefits to a patient – such as not having to stay at the facility, attend therapy sessions or take mandatory urine tests – and filed false progress reports with the court on his behalf in exchange for his obtaining for them what they believed to be stolen merchandise – such as laundry detergent, tools and computers.

Officials said the investigation was continuing. 7-26-11

Important New Decisions - July 27, 2011

Third Department Holds That While Plaintiff Lacked a Remedy at Law, the Dissolution of a Civil Union Falls Squarely Within the Scope of Supreme Court's Broad Equity Jurisdiction

In Dickerson v Thompson, --- N.Y.S.2d ----, 2011 WL 2899241 (N.Y.A.D. 3 Dept.) Plaintiff and defendant, residents of New York, entered into a civil union in Vermont in April 2003. In November 2007, plaintiff, unable to obtain a dissolution of the civil union in Vermont due to that state's residency requirements commenced an action for equitable and declaratory relief seeking a judgment dissolving the civil union and freeing her of all the rights and responsibilities incident to that union. Upon defendant's
default, plaintiff moved for a judgment granting the requested relief. Supreme Court, sua sponte, dismissed the complaint for lack of subject matter jurisdiction. On appeal, the Appellate Division reversed and reinstated the complaint (73 A.D.3d 52 [2010] [ Dickerson I ] ), holding that the courts of this state may recognize the civil union status of the parties as a matter of comity and that Supreme Court is vested with subject matter jurisdiction to adjudicate the dispute. It did not, however, reach the issue as to what relief, if any, could ultimately be afforded to the parties on the merits. Upon remittal, Supreme Court granted plaintiff's motion seeking a declaration relieving the parties from all rights and obligations arising from the civil union, but denied that portion of the motion seeking a dissolution of the union. The Appellate Division modified, disagreeing with Supreme Court's conclusion that, in the absence of any
legislatively created mechanism in New York by which a court could grant the
dissolution of a civil union entered into in another state, it was powerless to grant the requested relief. It held that while plaintiff lacked a remedy at law, the dissolution of a civil union falls squarely within the scope of Supreme Court's broad equity jurisdiction. As it noted in Dickerson I, the N.Y. Constitution vests Supreme Court with "general original jurisdiction in law and equity" (N.Y. Const, art VI, s 7[a] ). " 'The power of equity is as broad as equity and justice require' ". Indeed, "[t]he essence of equity jurisdiction has been the power ... to [mold] each decree to the necessities of the particular case" (State of New York v. Barone, 74 N.Y.2d 332, 336 [1989]. Thus, once a court of equity has obtained jurisdiction over the subject matter of the action, as Supreme Court had here, it has the power to dispose of all matters at issue and to grant complete relief in accordance with the equities of the case. In other words, even in the absence of any direct grant of legislative power, Supreme Court has the "inherent authority ... to fashion whatever remedies are required for the resolution of justiciable disputes and the protection of the rights of citizens," tempered only by our Constitution and statutes. It found that the exercise of Supreme Court's equitable powers to grant a dissolution of the civil union was clearly warranted here. Plaintiff was in need of a judicial remedy to dissolve her legal relationship with defendant created by the laws of Vermont. Residency requirements prevent her from obtaining a dissolution of the civil union in Vermont, and the provisions of Domestic Relations Law 170,
which provide for divorce and dissolution of a marriage, were not applicable to this action since the parties did not enter into a marriage in Vermont. Thus, absent Supreme Court's invocation of its equitable power to dissolve the civil union, there would be no court competent to provide plaintiff the requested relief and she would therefore be left without a remedy. A court of equity "withholds its remedies if the result would be unjust, but freely grants them to prevent injustice when the other courts are helpless". Here, the uncontested evidence submitted by plaintiff established that, during the course of the parties' relationship, defendant had subjected her to violent physical abuse on several occasions and was verbally abusive to both her and her autistic son on a daily basis. Defendant also stole from her, resulting in defendant's criminal conviction of grand larceny, and removed the license plates from plaintiff's vehicle to prevent her and her son from escaping defendant's abusive conduct. Furthermore, the parties have lived apart since April 2006 and
plaintiff had alleged facts demonstrating that resumption of the civil union is not probable. Since plaintiff would be entitled to a dissolution of the civil union in Vermont but for that state's residency requirement (see Vt Stat Ann, tit 15, s 551[3], [7]; ss 592, 1206), the Court found that equity would be served by granting her the requested relief and that Supreme Court erred in declining to invoke its equitable powers to do so. Furthermore, notwithstanding Supreme Court's declaration freeing the parties from the rights and obligations flowing from the civil union, the fact remained that, in the absence of a judgment granting a dissolution, plaintiff and defendant continued to be interminably bound as partners to the union. Given this legal status, plaintiff was precluded from entering into another civil union or a marriage in Vermont as well as analogous relationships in several other jurisdictions. Supreme Court's denial of the requested dissolution also barred the parties from enjoying the more limited protections available to domestic partners under certain locals laws of this state, including New York City's Domestic Partnership Law, which forbids parties to a civil union from entering into a domestic partnership with another (see City of N.Y. Administrative Code s 3-241).


Disposition Based Almost Entirely upon Proof That Court Elicited Is Expressly Disapproved. Function of the Judge is to Protect the Record at Trial, Not to Make It.

In Matter of Kyle FF, 926 N.Y.S.2d 196 (3 Dept, 2011) in August 2010, respondent (born in 1995) appeared in Family Court and admitted to committing acts that, if committed by an adult, would constitute the crime of criminal mischief in the fourth degree. At the dispositional hearing that followed, the parties stipulated to the admission of the predispositional report, which recommended, among other things, that respondent be placed on probation for two years subject to various special conditions. Although the parties asked that Family Court accept that recommendation and indicated that they intended to offer no further proof in this regard, Family Court called as its own witness the author of the report and questioned her extensively regarding respondent's prior admission to the local hospital's mental health unit and a subsequent mental health evaluation conducted by the Northeast Parent & Child Society. In response to this testimony, Family Court then indicated that it would not close the proof until it obtained the corresponding records for respondent's admission/evaluation and stated its intent to issue subpoenas to that effect. Following additional discussion, Family Court agreed to accept the discharge summary from respondent's hospital admission and closed the proof. Thereafter, relying almost exclusively upon proof that it elicited, Family Court ordered that respondent be placed with
the Office of Children and Family Services until August 31, 2011. The Appellate Division held that Family Court improperly assumed a prosecutorial role by eliciting testimonial and documentary evidence at the dispositional hearing. Although respondent did not object when Family Court called the author of the predispositional report as a witness and, further, stipulated to the admission of the discharge summary, thereby rendering this issue unpreserved for review it exercised its discretion and
reversed Family Court's order. The Appellate Division observed that Family Court is vested with the discretion to call witnesses, including the author of the predispositional report (see Family Ct. Act 350.4[2] ), and may assume "a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact" (People v. Arnold, 98 N.Y.2d 63, 67[2002] ). However, "[t]he overarching principle restraining the court's discretion [in this regard] is that it is the function of the judge to protect the record at trial, not to make it" and the court must take care to avoid assuming "the function or appearance of an advocate" (Matter of Yadiel Roque C., 17 A.D.3d at 1169). Here, even though the parties agreed with the recommendation made by the Probation Department, Family Court called and extensively questioned the author of the predispositional report, secured the production of additional documentary evidence and then, according essentially no weight to the underlying recommendation and the parties' expressed wishes, crafted a disposition based almost entirely upon proof that it elicited-a practice with which this Court previously had expressed its disapproval (see Matter of Keaghn Y., 921 N.Y.S.2d at 739; Matter of Blaize F. [Christopher F.], 74 A.D.3d 1454, 1455 [2010]; Matter of Stampfler v. Snow, 290 A.D.2d 595, 596[2002]). Accordingly, Family Court's order was reversed and, as respondent's placement had not yet expired, this matter was remitted for a new dispositional hearing before a different judge.

Salem Alshdaifat and his company, Holyland Numismatics

Holyland Numismatics is owned and operated by Salem Alshdaifat, the recently indicted co-defendant charged by a federal grand jury in New York with crimes associated with antiquities smuggling.  Court records indicate that he is a Canadian and Jordanian citizen who holds a US green card.  An indictment is not a finding of guilt.

Alshdaifat’s cached Facebook page indicates that Alshdaifat is the founder and president of the company since 2006. But Holyland Numismatic’s company web site states that the company was “[f]ounded in 2004 in Ontario, Canada, and moved in Michigan 2009, USA.”

Holyland Numismatics is apparently a sole proprietorship run out of Alshdaifat’s residence in Orchard Lake, Michigan. That community, near Detroit, is less than an hour from the Canadian border and less than 5 hours from Toronto.

Oakland County, Michigan records show that Holyland Numismatics registered its assumed business name on July 22, 2009, but discontinued that registration on December 15, 2009. The business owner was listed as Alshdaifat’s spouse, not Alshdaifat himself. But new registration papers filed on December 15, 2009 show Salem Alshdaifat to be the owner of Holyland Numismatics.

Holyland Numismatics’s web site lists a location in West Bloomfield, MI as its mailing address. That address is a Goin’ Postal mailbox store according to an internet search. The business location given by county records is an Orchard Lake, Michigan address, which is Alshdaifat’s residence. This business location is not displayed on the company's web site. Public property records for the Orchard Lake address reveal that it is a home owned in the name of a family member. The property appears to have been placed for sale as of June 2, 2011, but criminal court orders require the removal of this property from the real estate market since the house serves as collateral for Alshdaifat’s bail.

Holyland Numismatics’ web site remains active, suggesting that the company is operational. Since Alshdaifat is confined to his home under the terms of his bail and since his home appears to be his place of business, one reasonably can conclude that the business will continue to function as the case against Alshdaifat moves forward.

Bail Set, Lawyers File Appearances in Khouli Antiquities Smuggling Case

A multiple count felony indictment against Moussa "Morris" Khouli, Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan charges the defendants with antiquities smuggling crimes. Three defendants are now actively engaged in their cases that are before the federal court of the Eastern District of New York. Ramadan remains at large.

Khouli has been released on a $250,000 bond. Lewis has been released on a $250,000 personal recognizance bond. Meanwhile, the prosecution and the defense agreed to place Alshdaifat on a $500,000 bond along with conditions that include house arrest, electronic monitoring, and a waiver of extradition from Canada.

Lawyers for the three defendants have filed appearances, including attorney Gerald Shargel for Khouli, the firm of Mintz Levin for Lewis, and attorney Henry Mazurek for Alshdaifat. Khouli’s earlier attorneys have withdrawn from the case. Meanwhile, the United States is represented by Karin Orenstein and Claire Kedeshian.

A June 23 press release shows that this is the second major case Orenstein has been assigned recently. She also serves as the prosecutor in a ten person Oxycodone distribution case.

Important New Decisions - July 20, 2011

Costs of After-school Program and Summer Camp Qualify as Child Care Expenses.

In Matter of Scarduzio v Ryan, --- N.Y.S.2d ----, 2011 WL 2714203 (N.Y.A.D. 2 Dept.) the Appellate Division observed that the party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification. A change in the expenses for the child may constitute such a change in circumstances . It was undisputed that the child care expenses had decreased significantly since the order of support had been issued, due to the child attending school full time. It held that the father should only be required to pay his share of the child care expenses actually incurred by the mother commencing January 7, 2010, the date that the father filed his petition for a downward modification of his child support obligation . It rejected the father's argument that the costs of the after-school program and summer camp in which the child was enrolled did not qualify as child care expenses. The father offered no evidence to refute the mother's contention that these programs provided care for the child while she was at work. Accordingly, those programs qualified as child care expenses consistent with the purpose of Family Court Act 413(1)(c)(4).


An Evidentiary Ruling, Even When Made in Advance of a Trial on Motion Papers, Is Not Appealable

In Matter of Lyons v Lyons, --- N.Y.S.2d ----, 2011 WL 2714210 (N.Y.A.D. 2 Dept.) The Appellate Divison ruled that the appeal from so much of the order dated August 9, 2010, as denied the motion of Audrey Lyons to preclude the testimony of a court-appointed forensic evaluator at a hearing to be held on the issue of custody and to preclude the use of that evaluator's report at the hearing must be dismissed because it concerned an evidentiary ruling, which, even when made in advance of a hearing or trial on motion papers, is not appealable as of right or by permission.



Order Based upon Reports and Trial Testimony of Psychologists Which Made Reference to Statements about Respondent Attributed to Other Witnesses Who Did Not Testify at Trial, or Was Otherwise Qualified for Admission Pursuant to a Recognized Exception to the Rule Against Hearsay, Is Reversible Hearsay.

In Matter of Anthony WW, --- N.Y.S.2d ----, 2011 WL 2637279 (N.Y.A.D. 3 Dept.) Family Court ultimately terminated respondent's parental rights on the ground that he suffered from a mental illness that prevented him from providing proper care for his children. The Appellate Division reversed. It observed that at trial petitioner presented the testimony and reports of Richard Liotta and Donald Danser, both of whom were licensed psychologists who examined respondent. Respondent contended that both psychologists relied on inadmissible hearsay in preparing their reports and in arriving at their final opinions, and that since Family Court's decision terminating his parental rights was based in large measure on their reports and trial testimony, it must be reversed. Respondent argued that both psychologists, in their reports and in their trial testimony, made reference to statements about respondent attributed to other witnesses who did not testify at trial, none of which was admitted into evidence or was otherwise qualified for admission pursuant to a recognized exception to the rule against hearsay. Petitioner contended that both opinions were properly admitted and were either based on facts in the record or personally known to the witness or qualified as material of a kind accepted in the profession as reliable in forming a professional opinion and were properly admitted at trial. Danser testified that, in forming his opinion, he relied on his interview with respondent, as well as the results of various psychological tests that he performed on him. Danser also reviewed records that petitioner had on file regarding respondent, including case, progress and supervision notes, all of which were compiled during a four-year period beginning in 2003, as well as documents describing mental health treatment that respondent received during this time period. While Danser did not testify that this evidence was commonly relied upon in his profession to perform such an evaluation, Family Court determined that it was proper for him to refer to it, because some of this evidence was contained in the trial testimony given by other witnesses or in records that had been properly admitted into evidence at trial. However, the court did acknowledge that some of the references in Danser's report should not have been admitted and, for that reason, directed that a section of his report, entitled "Review of Records," be stricken because it referred to evidence that had not been admitted at trial. Significantly, Danser was never asked what impact this redacted evidence had on his evaluation of respondent and what effect, if any, it had on his opinion regarding respondent's mental condition. Similar issues existed with Liotta's report and testimony, both of which were admitted into evidence at trial. When he was first retained to perform his evaluation, Liotta was provided with petitioner's complete file on respondent. Later, he was asked to return the file and then, pursuant to a court order, was provided with a limited record to review. Liotta was also directed to limit his review to the records provided and not base his evaluation on respondent's fitness as a parent on statements made by the mother about respondent or on any collateral interviews that he may have conducted with other individuals regarding respondent. However, it was clear from the content of his report, as well as his testimony at trial, that Liotta, in forming his final opinion regarding respondent's fitness as a parent, relied on observations of respondent made by his eldest son's mental health provider as well as on statements made by the mother about respondent. In addition, Liotta's interviews with respondent's caseworker and his current mental heath therapist were referenced in his report and obviously played a role in the opinion that he ultimately offered regarding respondent's mental illness and its impact on his ability to be a parent. Like Danser, Liotta was never asked if this evidence was normally relied on within his profession as appropriate for the performance of such an evaluation and, while some of it was redacted, including any reference to his interview with the mental health therapist, Liotta was never
asked what impact this evidence had in formulating his final opinion as to
respondent's fitness as a parent. As a result, a proper foundation was not laid for the admission of the testimony of either psychologist or their reports. Without this evidence, Family Court's determination that respondent suffered from a mental illness that affected his ability to provide for his children was not supported by clear and convincing evidence. In footnotes the court pointed out that a redacted version of respondent's records from 2005 through 2007 was admitted into evidence at the trial. It also noted that Danser's evaluation focused on respondent's ability to function and contained recommendations for treatment. It was not performed for the specific purpose of determining whether respondent had the ability to provide an acceptable level of care for his children and, for that reason alone, should not have been admitted into evidence (see Social Services Law 384-b).


A Party May Be Held in Contempt for Their Subsequent Violation of an Oral Order or Directive, Issued in the Contemnor's Presence, Placed upon the Record and Transcribed into the Minutes of the Proceeding

In Matter of Lagano v Soule, --- N.Y.S.2d ----, 2011 WL 2637330 (N.Y.A.D. 3 Dept.), Petitioner (mother) and respondent Eric K. Taylor (father) were the biological parents of a son (born in 2002). In May 2005, respondent Linda S. Soule, the child's paternal grandmother, was granted custody of the child, and the mother was awarded specified periods of visitation. The mother commenced proceedings seeking to modify the prior award of custody and hold Soule in contempt for failing to comply with the visitation schedule. A hearing ensued as to the modification petitions in February 2006, at the conclusion of which Family Court granted the mother temporary custody of the child. The mother's attorney was instructed to prepare an order to that effect, which also was to include a directive that Soule produce the child at the next scheduled court appearance. When the matter reconvened in April 2006, Soule, who had relocated with the child out of state, appeared via telephone. Prior to adjourning the hearing due to the absence of the then attorney for the child, Judge Connerton advised Soule--repeatedly and in no uncertain terms--that she was required to produce the child on May 2, 2006, and Soule, in turn, indicated that she understood the court's directive. When Soule failed to appear or produce the child as ordered, the court awarded the mother sole legal custody with visitation to the father. After eventually locating and regaining physical custody of her son in August 2009, the mother commenced this violation proceeding against Soule and the father. Following a hearing in July 2010, Family Court upon application of the attorney for the child, dismissed the violation petition with prejudice, finding that the mother failed to establish that Soule was either served with or otherwise had knowledge of the May 2006 order. This appeal by the mother ensued and the Appellate Division found that the mother established a prima facie case of a willful violation as to Soule and, as such, Family Court erred in granting the motion to dismiss to that extent. The underlying pro se violation petition--liberally construed alleged a violation of both Judge Connerton's written May 2006 order and oral April 2006 directive, the latter of which ordered Soule to produce the child in court on May 2, 2006. Although there was insufficient evidence to support a finding that Soule had actual knowledge of the written May 2006 order there was no question that she had actual knowledge of Judge Connerton's April 2006 oral directive. In this regard, it is clear that "an oral 'order' or directive, issued in the contemnor's presence, placed upon the record and transcribed into the minutes of the proceeding, may be deemed a 'mandate' ... and, hence, may form the basis for contempt" (Matter of Betancourt v. Boughton, 204 A.D.2d 804, 808 [1994] ). It was clear from a review of the April 2006 transcript, of which Family Court took judicial notice, that Soule was repeatedly and unequivocally ordered by Judge Connerton to produce the child at the May 2006 court appearance, which, despite her acknowledgment of this directive and her expressed understanding thereof, Soule thereafter failed to do. Further, Soule's defiance of this clear and lawful mandate, as well as her subsequent conduct in secreting the child's whereabouts for the ensuing three years, plainly prejudiced the mother's parental rights and, was sufficient to establish a willful violation of Judge Connerton's April 2006 order. Accordingly, the motion dismissing the violation petition against Soule was denied and the matter was remitted to Family Court for further proceedings. In a footnote the court observed that Family Court, without objection, took judicial notice of "all prior proceedings involving [the child at issue]. The mere fact that the court did so in the context of a separate Family Court proceeding involving the child was of no moment, as a court may take judicial notice of prior judicial proceedings though in a different court and involving different parties. Family Court also took judicial notice of Judge Connerton's May 2006 order.



Once a Scientific Procedure Has Been Proved Reliable, a Frye Inquiry Need Not Be Conducted Each Time Such Evidence Is Offered and Courts May Take Judicial Notice of its Reliability


In Matter of Bethany F, 925 N.Y.S.2d 737 (4 Dept, 2011) respondent father
appealed from an order that placed him under the supervision of petitioner based on a finding that he sexually abused his daughter. The Appellate Division affirmed holding that Family Court did not abuse its discretion in denying his motion for a Frye hearing with respect to the admissibility of validation testimony of a court-appointed mental health counselor. "Once a scientific procedure has been proved reliable, a Frye inquiry
need not be conducted each time such evidence is offered and courts may take
judicial notice of its reliability (People v. Hopkins, 46 A.D.3d 1449, 1450, 848 N.Y.S.2d 460]; see People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374). Here, the court-appointed counselor utilized the Sgroi method to interview the child and make a determination with respect to the veracity of her allegations. The Court of Appeals has cited to Dr. Sgroi's "Handbook of Clinical Intervention in Child Sexual Abuse" (see Matter of Nicole V., 71 N.Y.2d 112, 120-121, 524 N.Y.S.2d 19, 518 N.E.2d 9140, and other courts in New York State have admitted validation testimony of experts who have utilized the Sgroi method. The court-appointed counselor testified at the hearing that the Sgroi method was used by "all" counselors in the field to validate allegations of sexual abuse. Inasmuch as a Frye hearing is required only where a party seeks to introduce testimony on a novel topic (see People v. Garrow, 75
A.D.3d 849, 852, 904 N.Y.S.2d 589), and there was no indication in the record that the methods used by the court-appointed counselor to validate the allegations of sexual abuse in this case were novel, the father's motion for a Frye hearing was properly denied.

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New York lawyer charged with aiding terrorist group

An American lawyer has been charged with aiding an Islamist terrorist organisation by passing messages from jail on behalf of the group's leader.

The charges, announced yesterday by the US attorney general, John Ashcroft, resulted from a surveillance operation carried out in the prison where the leader of the Egyptian-based Islamic Group is held.

Lynne Stewart, a Manhattan-based attorney, was arrested yesterday and her office searched by FBI agents. She had represented Sheikh Omar Abdel Rahman at his trial for plotting to cause five explosions in New York in the 1990s and for conspiring to murder the Egyptian president, Hosni Mubarak.

The indictment alleges that Ms Stewart, who became a familiar figure in the news during Rahman's trial in 1995, took part in "unlawful communications with the sheikh" which occurred during prison visits and telephone calls.

At a press conference, Mr Ashcroft suggested that during her jail visits, Ms Stewart deliberately spoke loudly in English to mask what was being said as Rahman and others held conversations in Arabic. The attorney general claimed that Ms Stewart had violated a signed agreement about communications with her client.

Also charged with Ms Stewart was Mohammed Yousry, an Arabic translator; Ahmed Abdel Sattar, a Staten Island man described as a "surrogate" for Rahman; and Yassir Al-Sirri, the former head of the London-based Islamic Observation Centre.

The indictment alleges that in October 2000, Rahman issued an edict which called on "scholars everywhere in the Muslim world to do their part and issue a unanimous fatwa that urges the Muslim nation to fight the Jews and kill them wherever they are".

The US "will not look the other way" before this "message of hate", Mr Ashcroft said.

He said only 16 of the 158,000 federal prisoners were having their meetings with their attorneys monitored.

Rahman had used Ms Stewart to communicate with the outside world when he was specifically forbidden to do so, Mr Ashcroft said. Since the early 90s the sheikh had directed terrorist attacks throughout the world, he added.

He also claimed Ms Stewart had falsely said that Rahman was being denied his medication when she knew this to be untrue.

Rahman, 63, was among 10 defendants convicted in 1995 in New York of a conspiracy to bomb the UN, the FBI headquarters in Manhattan and two tunnels and a bridge connecting New Jersey and New York. He was sentenced to life imprisonment.

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Immigration Lawyers in New York

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A Closer Look at the Case Against Mousa “Morris” Khouli and the Greco-Roman Coffin

A multiple count indictment publicly released last week implicates Mousa “Morris” Khouli and three others (Joseph A. Lewis, II, Salem Alshdaifat, and Ayman Ramadan) in an antiquities smuggling ring. Khouli is charged with conspiracy to smuggle, conspiracy to commit money laundering, smuggling as well as fraudulent importation and transportation (5 counts), and making false statements (2 counts).  Keep in mind that an indictment is simply a process that brings a person before the court. The government must prove its case beyond a reasonable doubt before a person may be found guilty.

Those familiar with the case know by now that Khouli is a New York based antiquities and ancient coin dealer. Because he faces more charges than the other named co-conspirators—-nine criminal counts—-and because federal prosecutors looked to Khouli to provide information two years ago, his case bears some examination.

The 17 page federal grand jury indictment recites that Khouli operated a business called Windsor Antiquities (sic), selling items both from his physical location in Manhattan and on the internet. He is alleged to have illegally imported antiquities and to have sold them to a collector whose home is in Virginia. From the available court documents, the specific item that appears to have begun the investigative probe in to Khouli’s activities is a Greco-Roman coffin.

The recently released indictment and Immigration and Customs Enforcement (ICE) press releases of July 14, 2011 describe that:

• Khouli sold Egyptian antiquities to Pharma Management Corp. CEO and Virginia collector Jospeh Lewis, II. The objects included the Greco-Roman coffin.

• Khouli bought the Egyptian antiquities from Michigan dealer Salem Alshdaifat of Holyland Numismatics and Dubai dealer Ayman Ramadan of Nafertiti (sic) Eastern Sculptures Trading.

• Around October 30, 2008 Khouli made a bank transfer of $10,000 into Ramadan’s bank account in Dubai. Then Ramadan had the Greco-Roman coffin shipped by air from the United Arab Emirates to JFK International Airport in New York, arriving on November 20, 2008.

• The Greco-Roman coffin was seized from Joseph Lewis’ home by federal agents on July 14, 2011.

• HSI special agents seized almost $80,000 and more than 200 smuggled antiquities from Khouli worth approximately $2.5 million. Other seizures from Khouli's store included a variety of antiquities and thousands of ancient coins valued at $1 million.

Additional unsealed court documents shed further light on the facts alleged in the indictment. Writing in a September 4, 2009 affidavit in support of Mousa Khouli’s arrest, an ICE special agent explained how, around November 2008, he discovered that a particular shipment entered JFK airport in New York. The Customs database told the agent that the shipment was described as “Wood Panels, Antiques of Age Exceeding One Hundred Years.” The database also listed the country of origin as the United Arab Emirates. The agent’s suspicions were aroused because "it is extremely unlikely that antique wood panels would originate in the UAE. The soil is almost entirely sandy . . . ,” he wrote.

Based on this information, the special agent met with Khouli on February 10, 2009. “Khouli then showed me five old, painted wood panels. I asked Khouli where the panels were from and he said they were Egyptian. When asked whether he had any merchandise originating in the UAE, Khouli responded that he sometimes imports from the UAE, but that the UAE is not the country of origin for any of his merchandise.”

Khouli signed a statement for the ICE agent that said that the wood panels did not originate from the UAE; they were imported from the UAE. The special agent noted in the affidavit that Khouli violated the law, particularly where fifteen of twenty imports over a five year period were claimed to have originated from the UAE. The ICE agent recited familiar cultural property law, specifically that the entry of cultural property in the United States in contravention of a foreign cultural patrimony law is punishable by the National Stolen Property Act, referencing United States v. Schultz. The agent also stated that lying about the country of origin on customs documents constitutes a material false statement in violation of the federal criminal code, citing United States v. An Antique Platter of Gold.

The court sealed the government’s affidavit and complaint because the case remained under investigation. Even after authorities arrested Khouli on September 8, 2009 the case remained under seal. Khouli apparently appeared for arraignment on October 22, 2009 as “John Doe” at the request of the US Attorney’s Office, according to now publicly available court documents.

The government charged Khouli in 2009 with smuggling cultural property into the United States. But federal prosecutors wanted Khouli as an informant. A previously sealed prosecution letter to the court dated October 19, 2009 explains: “Khouli has expressed an interest in cooperating proactively against others who deal in stolen cultural property . . . . These crimes are difficult to detect and prove because they are committed by falsifying importation documents and provenances. Khouli’s cooperation is therefore of great value to the government and will not only contribute to the investigation of others who smuggle and deal in stolen cultural property, but will enable the United States government to seize and repatriate stolen cultural property to the countries that own the property under applicable treaties and patrimony laws.”

The prosecution on December 16, 2009 moved to dismiss the criminal case against Khouli, perhaps for the purpose of utilizing Khouli as a cooperating witness but this information is unknown for certain. In May 2011, however, Khouli and the three co-defendants were indicted. The indictment remained under seal until last week. And on July 14, 2011, Khouli posted a $250,000 secured appearance bond.

According to the records of the New York Department of State, Division of Corporations, Khouli’s business was actually known as Windsor Antiques, Inc. Created on September 28, 1995, the public records show that the business dissolved on December 27, 2010. Khouli was listed as the CEO, with an address in New York, NY and a principal office located in Brooklyn. A new company, Palmyra Heratige (sic), Inc., emerged on May 28, 2010 according to the corporation division’s records, listing an address located at the Manhattan Arts and Antiques Center. Khouli is associated with both Windsor Antiques and Palmyra Heratige (sic), Inc.

Although the Palmyra Heratige (sic) web site is down, a Yahoo! search revealed the following cached web autobiography as of July 11, 2011 (http://www.vcoins.com/palmyraheritage/store/info.asp?page=AboutUs):

“I am Morris Khouli. I moved to New York City in 1992 with my family and opened a gallery in New York City in 1995. My father had a gallery in Damascus for 35 Years, and he learned the business from my Grandfather who was in the business as well. I am the third generation in this business. Thanks to my dad, he taught me the business and I learned to love ancient coins and antiquities ever since I was a little boy.

Many collectors and dealers know me since I do a lot of shows in New York, California, Maryland, Florida, Illinois, and the ANA show, wherever it is since 1993. You may visit my gallery in the heart of Manhattan in the beautiful Manhattan Art and Antiques Center. We are open to the public Monday through Friday 10:30 AM to 5:00 PM. Located at 1050 Second Avenue between 55 and 56 streets Gallery Number 16 New York NY 10022 Tel 212-3191077 and fax 212-3191169.

We guarantee all of our items to be authentic and if for any reason you are not happy with the item, you can return it for a full refund. Try us--you will be happy.

Thank you,
Morris Khouli”

Palmyra Heratige (sic) apparently sold various types of antiquities. The Manhattan Art and Antique Center lists a web page for Palmyra Heritage at http://www.the-maac.com/Streamline?p=viewPage.jsp&id=61&gid=123. It displays two ancient coins, an Apulian amphora, a Roman bust, and an Illyrian bronze helmet.

As the case continues through the federal court system some important questions that perhaps may be answered include:

• how the Greco-Roman coffin was originally acquired and who facilitated its acquisition and transfer;

• who packed and transported the coffin to the UAE, how was it done, and which countries did the coffin pass through;

• which foreign government authorities failed to detect the movement of the coffin and why;

• how much money was paid for the coffin and how was the money transferred;

• whether the coffin was conserved or restored and who did the work if it was;

• how the coffin got from JFK airport to Lewis’ home, who packed it, and who transported it;

• why HSI waited two years to seize the Greco-Roman coffin (which is a good decision if it served to further HSI’s investigation, of course); and

• who are the unnamed co-conspirators in this case?

Judges Need Pay REDUCTION Rather Than Pay RAISES

At the end of the NY Times article re-posted below, we read:

In the filings, the formulas and calculations are stitched together with arguments. So far,
the most ardent — and the wordiest— is the one by the judicial associations, which runs
247 pages. “When someone finds out that you are a judge,” it said, “and you have
not had a raise in over 12 years, most people say, ‘That’s crazy.’

We the public say: "It's crazy that Judges pay no attention to facts or law and make
decisions based on who is paying more behind closed doors. Stop pay raises until the
judicial system is once again under the rule of law and common sense.

Office of Court Administration Wants a 41% Jump In Pay For Judges

Also read Elena Sassower's excellent review of the problem:

Bringing Transparency, Evidence & Public Accountability to the One-Sided, Media-Created View (Swallowed Whole from the Judicial-Legal Establishment) that NY Judges are Underpaid & Entitled to a Raise 

July 17, 2011

Commission to Set Raises for Judges in New York State Is Flooded With Suggestions

By WILLIAM GLABERSON, NY TIMES

What is the price of administering justice?

That may sound like an existential question. But for a state panel beginning its task of setting salaries for New York’s judges, the issue is less of soaring philosophical debate than of convoluted calculations.

Would $220,836 be the proper salary for a judge who now earns $136,700, as one argument filed with the commission suggested? What about $195,754?

The seven members of the commission indicated last week in their first meeting that they thought their summer math-immersion course would put an end to one of the longest-running arguments in Albany, where state judges, numbering more than 1,200, have been lodging complaints about their pay for years.

The panel, the Judicial Compensation Commission, was created last year after the Legislature had failed for 12 years to agree on a raise for judges. Its decision, due in August, is to have the force of law unless overturned by the Legislature and the governor.

William C. Thompson Jr., the panel’s chairman and a former New York City comptroller, told the commissioners that they should assume that their conclusion “on the level of compensation for judges is going to be the level of compensation.”

The commission will hold its first — and probably only — public hearing on Wednesday in Albany. As a result, its members, appointed by the governor, legislative leaders and the state’s chief judge, are being inundated with formulas and charts.

The suggestions include every manner of numerical calculation, with most using as a point of reference the current $136,700 salary of State Supreme Court justices, who handle a wide range of cases, including murder cases and malpractice trials, and whose pay would have risen 41 percent if they had received raises to keep pace with inflation, according to one filing.

Each interest group had its own math. The New York City Bar Association argued that given how expensive it is to live in New York City, Supreme Court justices would have to earn $212,000 to be paid in line with the salaries of other big-city judges across the country.

The New York County Lawyers’ Association did another calculation: a $60,000 raise “would increase the state budget by less than 55 one-thousandths of one percent.”

Not to be outdone, a coalition of 12 judges’ organizations put forth 50 facts justifying a big raise, including salaries in New York City’s Sanitation Department: 50 employees in the department earn more than almost all New York judges and nearly as much as the state’s chief judge, Jonathan Lippman.

Judge Lippman makes $156,000; an intermediate appeals judge makes $144,000; a criminal court judge makes $125,600. The commissioners said they would keep in place the comparative differences for the various levels of the courts.

One commission member, Mark S. Mulholland, a Long Island lawyer, said in an interview that there were numbers of formulas that people were using to make their cases.

But he insisted he was not overwhelmed by numbers as lawyers sometimes are. “I actually did well in math,” he said.

Officials at the state’s Office of Court Administration presented the commissioners with their own ways of looking at the numbers, including a comparison of New York’s judicial salaries with the salaries of judges in other states. New York came in dead last.

The court administrators suggested setting the salary for a State Supreme Court justice between $192,000 and $220,000, a range seemingly intended to give the commission ample leeway to grant a big raise. If, for example, the commission chose a salary less than $192,000, it could appear fiscally responsible even as it doled out raises of 30 percent or so.

For much of the past dozen years, the discussion of judicial salaries has not drawn much passion. But with the commission tackling the issue at a time of state budget problems, the idea of increasing any state salaries is not popular.

State Senator John J. Bonacic, a Republican who is chairman of the Judiciary Committee, said in an interview that a raise to $220,000 for judges “may not be consistent with the tough environment that’s going on right now.” He said that in some areas of the state “if a vacancy occurred, you would have lawyers lining up for Supreme Court at the current salary.”

In the media and on the Internet, the prospect of a big judicial raise is beginning to draw fiery comments. Judges deserve a raise, “but 62 percent in one shot?” The New York Post asked in an editorial last week after the court administration officials had filed their submission. “No way,” the paper commented.

David Bookstaver, the spokesman for the court system, said the proposal offered the commission a range of salary possibilities based on factors set forth in the law. As for the criticism, Mr. Bookstaver called it “a mischaracterization of our submission.”

During the panel’s meeting last week, three of the seven commissioners appeared ready to grant judges a large raise quickly, two did not suggest views and two said the size of any raise had to be limited by the state’s fiscal troubles. “How much can the state afford?” asked Bill Mulrow, who was appointed by Gov. Andrew M. Cuomo.

In the filings, the formulas and calculations are stitched together with arguments. So far, the most ardent — and the wordiest— is the one by the judicial associations, which runs 247 pages. “When someone finds out that you are a judge,” it said, “and you have not had a raise in over 12 years, most people say, ‘That’s crazy.’ ”

Important New Decisions - July 13, 2011

Antithetical to Grant Standing Due to Existence of No Contact Order.

In Matter of Thomas X, --- N.Y.S.2d ----, 2011 WL 2640258 (N.Y.A.D. 3 Dept.) the Appellate Division affirmed an order which dismissed Wayne RR.'s applications, in two proceedings for custody of the children. When the Broome County Department of Social Services alleged that respondent Megan X. (mother) had violated the terms of Family Court's order directing her to ensure that her children (born in 1997, 2002 and 2003) have no contact with her boyfriend, Wayne RR. (petitioner), who is a known sex offender, she surrendered her parental rights. The mother had previously admitted to allegations of neglect after allowing unsupervised and inappropriate contact between petitioner and the children. Thereupon, petitioner commenced two proceedings seeking custody of the children. Finding that petitioner lacked standing, Family Court dismissed his petitions without a hearing. Family Court also granted a one-year order of protection in favor of the children against petitioner and denied his subsequent motion to vacate that order. The Appellate Division held that inasmuch as petitioner has no biological relationship to the children, his standing to seek custody was determined under the common-law standard requiring the establishment of extraordinary factual circumstances (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548 [1976]). While the mother's surrender, the absence of the biological fathers from the children's lives and the lack of any other suitable relative may normally be considered as extraordinary circumstances the Appellate Division agreed with Family Court that it would be antithetical here to grant standing in spite of the existence of the no contact order. The mother admitted neglect based, in part, on allowing petitioner, who had a history of exposing himself to children, to have unsupervised contact with the children, to sleep in the same bed with the male middle child and to shower and urinate in the toilet together with the oldest male child. Given the lack of any real factual dispute regarding petitioner's role in the circumstances leading to the mother's admission of neglect and the issuance of an order directing her to ensure that he have no contact with the children, it would not disturb Family
Court's conclusion that he lacked standing to seek custody.


Motion to Dismiss Pursuant to Cplr 3211 May Be Directed Only Against a Cause of Action or a Defense, Not a Motion

In Matter of Burnham v Brenna, --- N.Y.S.2d ----, 2011 WL 2624043 (N.Y.A.D. 2 Dept.), the father moved to dismiss the mother's motion pursuant to CPLR 2221 to renew her prior motion and for an award of an attorney's fee. The Appellate Division held that Family Court properly denied the father's motion, because a motion to dismiss pursuant to CPLR 3211 may be directed only against a cause of action or a defense, not a motion (see CPLR 3211[a], [b] ). The proper response to the mother's motion would have been to submit opposition papers (see CPLR 2214[b] ).


It Is Error as a Matter of Law to Make an Order Respecting Custody, Even in a Pendente Lite Context, Based on Controverted Allegations Without a Full Hearing

In Matter of Swinson v Brewington, 84 A.D.3d 1251, 925 N.Y.S.2d 96 (2d Dept, 2011) petitioner father and the respondent mother were in a relationship from 2001 to 2004, but were never married. Their son David was born on May 10, 2002. From the time of his birth, David lived with his mother in Brooklyn while his father visited him at least four times a month. There was no court order concerning David's custody. In the Spring of 2006 the father moved to Tennessee. Beginning in 2007, David spent the summer with his father in Tennessee, and remained during the school year in Brooklyn with his mother. The father also traveled to Brooklyn to visit David during the Christmas holiday season in 2006, 2007, and 2008. At the end of the summer in August 2009, the father enrolled David in school in Tennessee, rather than return David to his mother in Brooklyn. He also filed a petition for custody. Shortly thereafter, the mother filed a cross petition for custody. When the parties initially appeared before the Family Court on September 8, 2009, the Family Court decided that David should remain in Tennessee so as not to disturb the status quo until the court received more information, since David had started school on August 10, 2009. Toward that end, the Family Court referred the matter to a judicial hearing officer for an evidentiary hearing. On October 26, 2009, the parties appeared before the Judicial Hearing Officer, at which time no testimony was taken or exhibits received, although the father indicated he was prepared to go forward. There was only oral argument on the issue of temporary custody. In support of his petition, the father annexed David's file from PS 329, David's former school in Brooklyn, which included his school records and his teachers' notes regarding various behavior issues and interactions with the mother. PS 329's file showed that for the 2008/2009 school year, David had excessive absences, was frequently tardy, and performed poorly. It also documented that from April to June 2009, David used profanity toward his teacher and classmates on numerous occasions, pushed his classmates, and punched himself. The teachers' notes also indicated that the mother was asked to leave the school grounds one morning when she began harassing another child about bothering David, and failed to attend an appointment with school personnel to discuss David's behavior. During this appearance, the attorney for the child stated, without submitting any evidence in support of her comments, that David was a special needs child and, as such, would not receive the services as provided for by PS 329 pursuant to his Individual Education Plan at his school in Tennessee. She acknowledged that David did not want to choose between his parents because he loved both of them, but it was her position that the mother should be issued a temporary order of custody. The father objected to the attorney for the child making a "report" and providing her own recommendation to the Judicial Hearing Officer. He disputed the statements made by the attorney for the child with respect to the sufficiency of David's school in Tennessee and sought to enter David's Tennessee school records into evidence. However, the Judicial Hearing Officer refused to admit the records or proceed with a hearing. In an order dated October 26, 2009, the Judicial Hearing Officer awarded temporary custody of David to the mother. The Appellate Divison pointed out that as a general rule, while temporary custody may be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing. The Judicial Hearing Officer erred in relying on the report of the attorney for the child and refusing to take testimony and receive documentary evidence offered by the father to refute the report. While attorneys for the children, as advocates, may make their positions known to the court orally or in writing, presenting reports containing facts which are not part of the record or making ex parte submissions to the court are inappropriate practices (citing Weiglhofer v. Weiglhofer, 1 A.D.3d 786, 788, 766 N.Y.S.2d 727 n.). Here, the Judicial Hearing Officer erroneously allowed the attorney for the child to refer to matters that were not in evidence, and compounded its error by refusing to allow the father to proffer documentary evidence to contradict the assertions of the attorney for the child.

Antiquities Conspirators Charged

This week federal authorities publicly released a sealed indictment charging four men with antiquities trafficking. A federal grand jury in New York alleges that an antiquities trafficking ring conspired to smuggle ancient artifacts from Egypt, engaging in money laundering and false statements in the process.

The multiple count indictment charges
• collector Joseph A. Lewis, II, president and CEO of Pharma Management Corp. in Virginia.
• Mousa Khouli of Windsor Antiquities in New York,
• Michigan coin dealer Salem Alshdaifat of Holyland Numismatics, and
• dealer Ayman Ramadan of Nefertiti Eastern Sculptures Trading from Dubai.

The indictment alleges, in part, that Lewis illicitly bought Egyptian antiquities, which were illegally imported into the United States through Dubai. The indictment also alleges that the four conspired together and with unidentified “others” in an antiquities smuggling operation.

ICE issued a July 14 press release stating that it "seized Egyptian antiquities to include but are not limited to a Greco-Roman style Egyptian sarcophagus, a unique three-part coffin set belonging to Shesepamuntayesher from the Saite period or 26th Dynasty, approximately 664-552 B.C. In addition to Egyptian antiquities, other Middle Eastern and Asian artifacts along with more than a thousand antique coins have been recovered.”

U.S customs agents executed a search warrant at Lewis' home on July 13 in Chesterfield, VA. The Richmond Times-Dispatch reports that they "recovered the Greco-Roman sarcophagus, the funerary boats and the limestone figures" there. The newspaper also reports that Lewis was convicted of illegal importation of wildlife in 1991, a charge plea bargained down from a felony to a misdemeanor. He reportedly served 30 days in home confinement, paid a $7500 fine, was placed on probation for 5 years, and was sentenced to perform community service

Ramadan remains a fugitive as of this writing.

Meanwhile, no indictments have been handed up thus far that involve the coins or Asian goods.

It should be noted that an indictment is not a finding of guilt.  A criminal defendant is presumed innocent unless the prosecution can prove its case beyond a reasonable doubt in a court of law.

Ithaca, NY DWI Lawyer Plays The Can You "Prove" That Game

In my typical week I stand in front of a great many Judges, Court Clerks, and Assistant District Attorneys. When I say this or that about this law or that statute I am often looked at quizzically (is that a word? of course it is after all I said so!.

But even if one week the Judge or Clerk or ADA says OK, you're right, the next week it's like the movie "Ground Hog Day." We start all over as if they forgot what happened in the prior week. Which has me bringing into the Court, law books, so they can see the actual numbers and pages to the law that I quote and want applied.

For instance, it is the "law" that if someone pays restitution for a crime that there is no mandatory state surcharge for the crime/violation. In the case of a DWI with an accident, if the tree or street sign or mail box that were broken or destroyed are replaced or repaired, there should be NO NYS SURCHARGES!

When I tell some Judges, Clerks, and ADAs this law they often balk at my request and insist that I am mistaken, that I am wrong, or don't you know about the DWI exception to this law? The What?

Anyway, I often have to pull out my books or my photocopied pages of the statutes to prove my point.
The New York State Vehicle and Traffic Law section on Penalties and Disposition of Fines and Forfeitures in VTL §1809 (6) states that, Notwithstanding any other provision of this section,
where a person has made restitution or reparation pursuant to section 60.27 of the penal law, such person shall not be required to pay a mandatory surcharge or crime victim assistance fee.


Furthermore, New York State Penal Law § 60.35 (6) states that Notwithstanding any other provision of this section, where a person has made restitution or reparation pursuant to section 60.27 of this article, such person shall not be required to pay a mandatory surcharge or a crime victim assistance fee.


Proof is usually in the pudding or in this case most certainly in the law.

Plaintiffs Seek Removal of Judge Lewis Kaplan From Their Case

Judge Lewis A. Kaplan

Ecuadorans in Chevron Lawsuit Seek Kaplan's Recusal for Bias
Mark Hamblett, NY Law Journal, 04-28-2011
Lawyers seeking to enforce an $18 billion environmental damages judgment against Chevron in Ecuador have asked Southern District Judge Lewis A. Kaplan to recuse himself.

In the latest salvo in what has become a worldwide legal and public relations battle, two attorneys allege that Judge Kaplan has expressed "prejudicial and untenable conclusions without a trial or an evidentiary hearing" and has "lost all semblance of impartiality" in the case.

Judge Kaplan in March issued a preliminary injunction blocking enforcement of the $18 billion judgment, finding merit in Chevron's claims that the judgment may have been procured through fraud.

The recusal motion was filed by New York attorney Julio C. Gomez and New Orleans attorney Carlos A. Zelaya, who represent two Ecuadorian plaintiffs who prevailed in Ecuador but were named by Chevron in a racketeering suit the oil company brought against attorney Steven Donziger (pictured below).

Mr. Donziger led the charge for plaintiffs in Ecuador in the so-called Lago Agrio litigation that climaxed on Feb. 14 when an Ecuadorian court ordered the $18 billion award for environmental contamination caused by Chevron's predecessor oil company in Ecuador, Texaco, from 1964 to 1992.

The award is now being appealed in Ecuador.

Chevron's racketeering suit, Chevron Corp. v. Donziger, 11-cv-691, filed by Randy Mastro of Gibson Dunn & Crutcher, alleges that Mr. Donziger conspired with others to corrupt the judicial system in Ecuador and win billions of dollars in damages from the company.

Mr. Donziger himself had filed an earlier motion asking Judge Kaplan to get off the case (NYLJ, March 3). In that motion, which the judge denied, Mr. Donzinger claimed Chevron manipulated the court's case assignment system to get before Judge Kaplan and that the suit should have been assigned instead to Judge Jed S. Rakoff, who nine years ago dismissed the initial action brought in the Southern District against Chevron on the basis of forum non conveniens. That ruling led the plaintiffs to bring suit in Ecuador.

Judge Kaplan become embroiled in the fight between the oil company and the Ecuadorian plaintiffs in 2010, when Chevron filed discovery motions under USC §1782, seeking to derail the expected damages award against it. Chevron sought to enforce subpoenas of Mr. Donziger and others to glean information it claimed would show the award was the result of fraud.

Judge Kaplan has since issued a series of rulings in Chevron's favor, first in the discovery litigation and then in the racketeering case.

On May 6, 2010, he ordered documentary filmmaker Joseph Berlinger to turn over outtakes of "Crude," a film about the litigation the judge said was solicited by Mr. Donziger (NYLJ, May 7, 2010). The judge then directed Mr. Donziger to turn over documents and e-mails, and appear for a deposition in two orders issued on Oct. 20 and Nov. 30, 2010.

After Chevron filed the racketeering case on Feb. 1, Judge Kaplan, on Feb. 8, less than one week before the $18 billion Lago Agrio award was announced, issued a temporary restraining order blocking enforcement of any award (NYLJ, Feb 9).

The judge cited a memo by Patton Boggs, one of the firms hired by the Ecuadorian plaintiffs to help enforce the judgment. He said the memo, code-named "Invictus," outlines a deliberate strategy to "cause as much disruption as possible" by launching simultaneous actions against Chevron in courts throughout the world and the use of maritime attachments to "coerce" a settlement.

Judge Kaplan said there was evidence that Ecuador does not provide impartial tribunals that comport with due process and the judgment may have been procured by fraud.

The judge followed the restraining order with a preliminary injunction on March 7, when he held that Chevron was likely to prevail at trial on its claim the judgment was neither recognizable nor enforceable.

Judge Kaplan went on to deny the Ecuadorian plaintiffs a stay of that ruling pending appeal. On April 22, Patton Boggs, along with Messrs. Gomez and Zelaya, filed papers with the U.S. Court of Appeals for the Second Circuit, asking for a stay of the preliminary injunction pending an expedited appeal.

Patton Boggs, led by James E. Tyrrell Jr., claims in Naranjo v. Chevron Corp., 11-1150-cv, that Judge Kaplan lacked the authority to issue the injunction, calling it "unprecedented preliminary relief of extraordinary scope."

Mr. Tyrrell also alleges that the injunction prevents the Ecuadorian plaintiffs from speaking with counsel about potential enforcement actions in other countries.

In a related skirmish before Judge Kaplan, Mr. Mastro filed a sanctions motion against Patton Boggs and two other law firms in January for purporting to represent 48 Lago Agrio plaintiffs without authorization. Mr. Mastro claims that Mr. Donziger confirmed at a recent deposition that the firms have not executed retainer agreements with the plaintiffs, a claim the plaintiffs' firms dispute.

In an April 7 letter to Judge Kaplan, Mr. Mastro states that Mr. Tyrrell has not appeared before the judge in the racketeering case, but has now appeared before the Second Circuit in a piece of "gamesmanship" to avoid both appearing before Judge Kaplan and being sanctioned.

Mr. Tyrrell said yesterday, "it is not appropriate for me to comment on why individual lawyers representing Lago Agrio plaintiffs appear in different actions."

Patton Boggs, Motley Rice and other firms are engaged in litigation in 20 different actions in 16 courts in the United States.

Judge's 'Jaded View'?

The latest recusal motion by Messrs. Gomez and Zelaya faulted Judge Kaplan for his "jaded view" of the Ecuadorian proceedings and a "profound disrespect for the Ecuadorian judicial system."

"The court accepted without question Chevron's description of the Lago Agrio litigation as an entrepreneurial scheme engineered by counsel 'to hit Chevron as hard as they can,'" the lawyers for the Ecuadorian clients state in their motion.

The attorneys claim the judge is prejudiced against their case and has "engaged in a pattern of inequitable and overly harsh treatment of defendants, more than sufficient to create the appearance of bias."

They quote the judge as saying during a hearing that he understood "that Chevron never did business in Ecuador…that Texaco was out of Ecuador for years before they acquired Texaco…and that Texaco has been out of Ecuador for 19 years and that whatever happened since 1992 has been on the watch of the Ecuadorian-owned oil company."

They also charge that the judge, "propelled by his conviction that the Ecuadorian plaintiffs are engaged in an elaborate hoax," went on to "invite Chevron to bring this action."

Mr. Mastro yesterday called the recusal motion "meritless."

"All Judge Kaplan has done is make rulings based on uncontroverted evidence and every time he's been affirmed by the Second Circuit, most recently with the appellate court going out of its way to praise his handling of these matters," Mr. Mastro said.

Mark Hamblett can be contacted at mhamblett@alm.com.