Important New Decisions - November 30, 2011

Billing Statements of Former Attorney Inadmissible in Counsel Fee Hearing

In Matter of Denton v Barr, --- N.Y.S.2d ----, 2011 WL 5922992 (N.Y.A.D. 1 Dept.) the Appellate Divison modified an order of the Family Court which awarded petitioner attorney's fees of $110,000 and child support arrears of $11,000 to award petitioner $11,742 in child support arrears and $5,322 in interest on the arrears, and to remand the matter for clarification of the amount of attorney's fees awarded to and reversed an order which directed that the $110,000 in attorney's fees be paid to petitioner and mailed to the offices of her counsel. On a prior appeal, the Court found that pursuant to the parties' stipulation of settlement, petitioner was "entitled to attorney's fees and remanded for a hearing to determine the amount of those fees" (69 AD3d 24, 32 [2009] ). It found that the court, in determining the amount of fees due to petitioner, relied on documents that constituted inadmissible hearsay, namely, billing statements of respondent's former attorney (cf. Seinfeld v. Robinson, 300 A.D.2d 208, 209 [2002] ). The matter was remanded to the trial court for clarification of the basis for the amount of fees awarded.

Family Courts Jurisdiction is Limited to Family Offenses Committed Against Persons Listed in Family Court Act 812 Only

In Matter of Janet GG v Robert GG,--- N.Y.S.2d ----, 2011 WL 5083241 (N.Y.A.D. 3 Dept.) in March 2010, petitioner (mother) filed a Family Ct Act article 8 petition alleging that respondent (father) committed a series of family offenses against her and their two children (born in 1996 and 1998). Specifically, she alleged that on March 2, 2010, the father telephoned the children's school, spoke to a guidance counselor and demanded to see his children. Because the counselor believed that an order of protection was in place that barred the father from having such contact with his children, the counselor informed the father that he should not come to the school and, in any event, would not be allowed by school authorities to visit with his children. The father, despite this admonition, went to the school and, upon entering the premises, confronted the school superintendent demanding to see his children. After he became loud and boisterous and refused to leave the premises, the police were notified and the father was placed under arrest. The mother subsequently filed a petition claiming that this conduct qualified as a family offense and, on that basis, sought an order of protection for herself and the children. The father argued that what had occurred, even if true, did not constitute a family offense and, therefore, Family Court did not have jurisdiction. The court agreed and dismissed the petition with prejudice. The Appellate Division affirmed. It observed that Family Court's jurisdiction over family offense proceedings is limited to those acts between family members that 'would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, ...stalking, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault (Family Ct Act 812[1] ). Family Court determined that while the father's actions may have constituted disorderly conduct, they did not amount to a family offense because, when committed, the father was not in contact with the mother or either of their children. Instead, the father's actions were directed at school personnel and not any member of his family. The Appellate Division agreed. The father's actions were directed not at the mother or the children, but at school personnel, and what occurred did not constitute a family offense. As such, Family Court was without jurisdiction to entertain this petition (Family Ct Act 812).

Second Department Construes Parties' Stipulation Providing for the Distribution of "Any Pension," to Refer Only to the Portion of Pension Representing Deferred Compensation.

In Nugent-Schubert v Schubert, --- N.Y.S.2d ----, 2011 WL 5085506 (N.Y.A.D. 2 Dept.) the plaintiff former wife and the defendant former husband were divorced by judgment incorporating a stipulation of settlement. The stipulation of settlement provided for a 50% distribution to the plaintiff of the value of "any pension" received by the defendant. The plaintiff thereafter submitted to the Supreme Court a Qualified Domestic Relations Order ( QDRO), which included a provision entitling her to receive a share of any future disability pension, but limited to any portion thereof representing the defendant's earnings and years of credited service. However, the Supreme Court struck that provision of the QDRO. Subsequently, the defendant, who was employed by the New York City Police Department, retired on an accidental disability pension as a result of a line-of-duty injury. Pursuant to the QDRO in its current form, the plaintiff was receiving a portion of the defendant's accidental disability pension that represented compensation for personal injuries. The defendant moved to amend the QDRO so as to exclude this portion of his accidental disability pension from distribution to the plaintiff. The Appellate Division held that the motion should have been granted. It observed that where a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Under controlling law, pension benefits, "except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property" because they are "in essence, a form of deferred compensation derived from employment" during the marriage. However, any compensation a spouse receives for personal injuries is not considered marital property and is not subject to equitable distribution. Thus, to the extent [a] disability pension represents deferred compensation, it is subject to equitable distribution while to the extent that a disability pension constitutes compensation for personal injuries, that compensation is "separate property" which is not subject to equitable distribution. In Berardi v. Berardi, 54 A.D.3d at 984-985, 865 N.Y.S.2d 245 this Court concluded that, absent a provision in the stipulation specifically awarding the [wife] accident disability benefits, the Supreme Court had erred in amending the QDRO to award the wife a portion of the husband's pension representing compensation for personal injuries, as such a provision in the QDRO expanded the rights granted to the wife under the stipulation. Similarly, here, the parties' stipulation providing for the distribution of "any pension," which was entered into before the defendant became entitled to or applied for an accidental disability pension, must likewise be construed to refer only to the portion of the defendant's pension representing deferred compensation. The Appellate Division distinguished this case from its decisions in Rosenberger v. Rosenberger (63 A.D.3d 898, 882 N.Y.S.2d 426) and Pulaski v. Pulaski (22 A.D.3d 820, 820-821, 804 N.Y.S.2d 404). In those cases, the husbands had applied for disability benefits, based upon line-of-duty injuries, prior to execution of the stipulation such that they were "chargeable with knowledge of the prospect of [an] eventual disability retirement when [they] entered into the stipulation". Thus, in Pulaski and Rosenberger, where the husbands were aware, before entering into a stipulation, of the specific potential for receipt of pension benefits that they would be entitled to treat as separate property, the broad language in the stipulation referring to distribution of a pension generally, with no provision for separate-property treatment of the pension, was reasonably interpreted as intending to distribute the entire disability pension. Here, as in Berardi, where it was unknown and unanticipated that the defendant would qualify for a disability pension, there was no reason to conclude that a general provision providing for equal distribution of "any pension" was intended to opt out of the controlling law in order to distribute portions of any such pension that would not ordinarily be subject to equitable distribution. The fact that the plaintiff submitted a QDRO which would have limited the distribution of any future disability pension to that portion representing deferred compensation further evinced the parties' understanding that separate-property portions of "any pension" received by the husband would not be subject to distribution.

Third Department Affirms Initial Custody Award Made without Evidentary Hearing

In Matter of Cole v Cole, --- N.Y.S.2d ----, 2011 WL 4975299, 2011 N.Y. Slip Op. 07328 (NYAD 3 Dept) Petitioner (father) and respondent (mother) were the parents of two sons (born in 2007 and 2008). In June 2010, the father filed a petition for custody of the children. He thereafter left the marital residence at the home of the maternal grandmother, and relocated to the paternal grandmother's home. In July 2010, the mother filed a petition seeking custody of the children. At the initial appearance, Family Court assigned an attorney for the children and temporarily ordered joint legal custody of the children with physical custody to the mother and, when the mother was working, childcare provided by the father at the maternal grandmother's home. At the next appearance, the father requested shared physical custody of the children and Family Court granted this as to weekends, when the mother was working. At the third and final appearance, in November 2010, Family Court issued a final order essentially based upon this same arrangement. The Appellate Division affirmed. It rejected the mother’s argument that Family Court erred by issuing a final order without conducting a hearing or engaging in other formalities such as placing stipulations or consent of the parties upon the record. An evidentiary hearing is generally necessary to determine custody matters, but it is not obligatory where, as here, no request is made and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests. Although no sworn testimony was taken, all three appearances before Family Court were attended by each of the parents, their respective attorneys, and both grandmothers, and the court invited and received input from all involved. The attorney for the children attended the two later appearances, and advocated a position based on interviews with the mother, her employer, the father and various service providers for the children. Further, the Chemung County Department of Social Services provided Family Court with a report assessing the needs of the children and the current family circumstances. The two parents, with the support of the two grandmothers, were essentially collaborating relative to the matters of sharing time and the responsibilities of caring for their children during the course of the proceedings, and Family Court found this structure in the best interests of the children. Although the mother was represented by counsel at all three appearances, at no time did she or her counsel request a hearing or other formalities. Upon review, it found that Family Court had sufficient information before it to support the determination.

Third Department Holds that In Neglect Proceeding Attorney for Children May Advocate a Different Position When the Children's Wishes Would Likely "Result in a Substantial Risk of Imminent, Serious Harm to the Children

In Matter of Alyson J, --- N.Y.S.2d ----, 2011 WL 5083950 (N.Y.A.D. 3 Dept.) a neglect proceeding, the Appellate Division disagreed with respondent's contention that the attorney for the children failed to adequately represent the children's interests. It pointed out that the duty of the attorney for the children is to advocate and express the children's wishes to the court, but on occasion it is acceptable for counsel to deviate from this obligation; the attorney is specifically allowed to advocate a different position when the children's wishes would likely "result in a substantial risk of imminent, serious harm to the child[ren]" (Citing (22 NYCRR 7.2 [d][3]; see Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093-1094 [2009], lv denied 15 N.Y.3d 715 [2010] ). Here, counsel had been involved with the children for several years and was well aware of their conditions, and the Appellate Division accepted the contrary position as in the best interests of the children. At the fact-finding hearing, the attorney for the children did indicate his clients' wishes, and properly informed Family Court that he was deviating from them.

Child Support Provisions of So-ordered Stipulation Which Did Not Contain Recitals Mandated by the CSSA Not Enforceable, But Remaining Provisions Held Enforceable.

In Bushlow v Bushlow--- N.Y.S.2d ----, 2011 WL 5222909 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the plaintiff's contention, the parties' so-ordered stipulation of settlement dated January 26, 2009, which was incorporated, but not merged, into the judgment of divorce, did not comply with the requirements of the Child Support Standards Act (Domestic Relations Law 240[1-b][h]). The stipulation did not recite that the parties were advised of the provisions of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount of support to be awarded. "[A] party's awareness of the requirements of the CSSA is not the dispositive consideration under the statute" (Lepore v. Lepore, 276 A.D.2d 677, 678, 714 N.Y.S.2d 343). Moreover, the parties' prorated shares of child care expenses and future reasonable unreimbursed health care expenses deviated from the CSSA guidelines, since they were not calculated based upon the parties' "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Domestic Relations Law 240[1-b][b][5][I]; 240 [1-b][c][1]). Thus, the stipulation was required to contain the additional recitals setting forth, inter alia, the amount that the basic child support obligation would have been under the CSSA (see Domestic Relations Law 240[1-b][h]). Since the so-ordered stipulation of settlement did not contain the specific recitals mandated by the CSSA, its provisions, insofar as they concerned the plaintiff's basic child support payment and "add-ons" for child care and unreimbursed health care expenses, were not enforceable. Accordingly, the Supreme Court should not have incorporated them into the judgment of divorce. However, contrary to the plaintiff's contention, the remaining provisions of the so-ordered stipulation, and the parties' open-court stipulation entered into on September 9, 2008, continued to be enforceable. The record did not support a finding that these provisions were closely intertwined with the basic child support provisions. The matter was remitted to the Supreme Court, for a determination of the basic child support obligation, including the parties' prorated contributions towards child care and reasonable unreimbursed health care expenses, in accordance with the CSSA.

Appellate Division Explains Doctrine of Res Judicata and Collateral Estoppel. Incidents in Counterclaim Occurring More than 5 Years Before Commencement May Be Properly Included If Relevant to Evaluation of Party's Claim for Cruelty Divorce.

In Maybaum v Maybaum, --- N.Y.S.2d ----, 2011 WL 5244417 (N.Y.A.D. 2 Dept.) the defendant wife and the plaintiff husband were married on March 13, 1995. Two children were born of the marriage. In April 2010, the defendant commenced a proceeding pursuant to article 8 of the Family Court Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiff commenced the action for a divorce on the ground of cruel and inhuman treatment. On April 27, 2010, the parties appeared before the Family Court and entered into a stipulation on the record. The parties stipulated that the defendant was withdrawing the pending family offense petition, with prejudice, in exchange for the plaintiff giving the defendant exclusive use of the marital residence. The parties agreed that the stipulation was binding in the action for a divorce pending in the Supreme Court. Subsequently, the defendant answered the complaint in this action and asserted a counterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. In reply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that the defendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c), and, as a fourth affirmative defense, that the counterclaim was barred, in whole or in part, by the doctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulation between the parties. The parties made several motions and cross motions for relief.
The Appellate Division held that the Supreme Court erred in granting the plaintiff's motion to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A 'pragmatic' test has been applied to make this determination-analyzing 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage' " (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100-101). Applying this test, it concluded that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment did not form a convenient trial unit. Thus, the defendant was not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court.
The Appellate Division pointed out that collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same. The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action. Collateral estoppel effect will only be given to matters actually litigated and determined in a prior action. An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation. Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, could not be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts. Further, the circumstances set forth by plaintiff simply did not rise to a level of unconscionability warranting application of equitable estoppel.
Since the doctrines of res judicata, collateral estoppel, and equitable estoppel did not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted defendant's cross motion to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense has no merit.
The Appellate Division held that Supreme Court erred in granting plaintiff's motion to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage.

Family Court Erred by Granting the Father's Motion for Summary Judgment Modifying Custody Order Without Allowing Mother Opportunity to Present Evidence. Due Process Requires That a Parent Be Afforded "A Full and Fair Opportunity to Be Heard

In Matter of Jeffrey JJ v Stephanie KK, --- N.Y.S.2d ----, 2011 WL 4975012 (N.Y.A.D. 3 Dept.) Petitioner ( father) and respondent (mother) were the parents of a daughter (born in 2003). Pursuant to a prior order of custody, the parties' apparently shared legal custody of the child; the mother had primary physical custody and the father had liberal visitation time. The father commenced a proceeding seeking primary physical custody of the child after the Rensselaer County Department of Social Services commenced a neglect proceeding against the mother and her husband (stepfather) after receiving a report that the stepfather had been intoxicated while driving with the mother, the subject child and another child in the vehicle. At the fact-finding hearing, the father presented evidence of an existing order of protection that prohibited the stepfather from having any contact with the subject child until July 30, 2010. The father then made an oral motion for Family Court to award him custody, which the court granted over the mother's objection, after it concluded that it was "impossible [for] ... the child's primary residence to be with the mother[,] who is living with [the stepfather,] against whom there is an order of protection." The court further concluded that the issue of the child's best interests had "almost been determined by virtue of the fact that there is an order of protection against" the stepfather. The court then awarded the father primary physical custody of the child with parenting time to the mother. The Appellate Division agreed with the mother that Family Court erred by granting the father's motion without allowing her an opportunity to present any evidence. In a proceeding pursuant to Family Ct. Act article 6 seeking modification of a prior custody order, a full and comprehensive hearing is required. At such hearing, due process requires that a parent be afforded "a full and fair opportunity to be heard. Family Court violated the mother's due process rights when it granted the father's motion for summary judgment on the petition without permitting the mother an opportunity to present any evidence, call any witnesses, or even testify on her own behalf. While the court believed that the order of protection against the stepfather rendered it impossible for it to award the mother primary physical custody, on cross-examination the stepfather indicated that he was willing to move out of the mother's residence until that order expired. However, the mother was denied an opportunity to present evidence regarding the feasibility of this plan when the court granted the father's motion. In a footnote the court observed that the prior order was not included in the record on appeal, which omission ordinarily results in dismissal of the appeal (see Matter of Pratt v. Anthony, 30 A.D.3d 708, 815 N.Y.S.2d 832 [2006] ). However, since there was no dispute as to the terms of the prior order, which were put on the record in open court by Family Court, it decided to reach the merits of this appeal

Second Department Explains Requirements of Anders Brief and Responsibilities of Counsel in Relieving Assigned Counsel Who Filed Inadequate Brief

In Matter of Giovani S, --- N.Y.S.2d ----, 2011 WL 5222834 (N.Y.A.D. 2 Dept.) the mother appealed from a fact-finding order in a child protective proceeding which found that she had neglected the child. The mother's counsel submitted a brief pursuant to Anders v. California (386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), in which he moved for leave to withdraw as counsel for the appellant. The Appellate Division granted the motion, relieved assigned counsel for the appellant and appointed a new attorney as counsel to perfect the appeal from the fact-finding order. In its decision, written by Justice Skelos, the Court reviewed the basic principles espoused in Anders and their proper application, as well as the responsibilities of counsel in relation to the filing of briefs pursuant to Anders.
The Court observed that the fundamental principles upon which Anders was founded apply in both criminal and family law cases. The Due Process and Equal Protection Clauses of the Fourteenth Amendment converge to require that indigent criminal defendants, faced with the risk of loss of liberty or grievous forfeiture are granted equal rights to appeal through the representation and advocacy of assigned counsel. Likewise, a parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer (Matter of Ella B., 30 N.Y.2d 352, 356-357. Accordingly, indigent parties to certain Family Court proceedings, such as child protective proceedings pursuant to Family Court Act article 10, are entitled to be represented by assigned counsel (Family Ct Act 262[a][i]. Nonetheless, there is one limitation placed upon the right to counsel on appeal. It does not include the right to counsel for bringing a frivolous appeal. The United States Supreme Court in Anders set forth a procedure, subsequently adopted by the New York State Court of Appeals, which, when properly utilized in the context of potentially frivolous appeals, safeguards an indigent appellant's rights (see Anders v. California, 386 U.S. at 744). According to that procedure, if, after a conscientious examination of the record, assigned counsel finds a case to be wholly frivolous, counsel should so advise the court and request permission to withdraw. In fulfilling assigned counsel's role as an active advocate such requests to withdraw must be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If the court "finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. If, however, the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed, and the appeal decided.
The Appellate Division pointed out that there are essentially two steps to the Court's review of an attorney's motion to be relieved pursuant to Anders. First, the Court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Significantly, although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments. "Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel (see People v. Stokes, 95 N.Y.2d at 637; People v. Gonzalez, 47 N.Y.2d at 610-611). Further, assigned counsel "must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In searching for the strongest arguments available, the attorney must be zealous and resolve all doubts and ambiguous legal questions in favor of his or her client. Only after such a diligent and conscientious examination of the case will counsel be in a position to determine that there are no nonfrivolous issues to raise on appeal. Once that determination is made, as counsel must file a brief "reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. The Court noted that the Court of Appeals' decisions in Stokes and Gonzalez provide guidance as to what will be considered a deficient brief. These cases demonstrate, counsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority. Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal . Where counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal. If the Court is satisfied, however, that counsel diligently examined the case on the indigent appellant's behalf, the next step in the Court's review is to determine, based upon an independent review of the record, whether counsel's assessment that there are no nonfrivolous issues for appeal is correct. In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous. There must, however, be a finding of frivolity, not merely an evaluation of the likelihood that the defendant will prevail on the merits, because the exception to the constitutional requirement that certain indigent parties receive representation on appeal is predicated on the fact that the Fourteenth Amendment does not require appointed counsel to press wholly frivolous arguments. Thus, once a court determines that the trial record supports arguable claims, there is no basis for the exception" and the indigent appellant is entitled to representation. Accordingly, it is inappropriate for the Court to analyze the merits of any particular appellate issue where the appellant has not received the benefit of a merits-based brief prepared by counsel. The question, therefore, to be answered by the Court in every Anders case is only whether "the appeal lacks any basis in law or fact". The question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are "arguable" on the merits .
Turning to the present appeal, the Appellate Division found that counsel's Anders application failed on both levels of review. The Anders brief filed by assigned counsel for the mother contained a four-page statement of facts, in which he reviewed the testimony given by the sole witness (a police officer) presented by ACS, and ACS's documentary evidence. The brief reviewed only the witness's direct testimony, not the mother's counsel's cross-examination, and did not identify and evaluate the mother's counsel's objections. Significantly, although this case was resolved on motions, counsel's brief merely stated that motions were made, and indicates how they were decided, but does not include any summary of the arguments made by the parties. Finally, counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal. The "argument" section of counsel's brief merely stated in conclusory fashion: "The undersigned has fully analyzed the record below, performed the necessary legal research, and it is my legal opinion that there are no nonfrivolous issues to raise on appeal." Accordingly, counsel failed in his role as advocate by filing a deficient brief, and, on this basis alone, the mother was entitled to new counsel. It noted that based upon an independent review of the record, the record presented nonfrivolous issues including, but not limited to, whether ACS met its burden of showing that, as alleged in the petition, the mother was involved in a drug sale in the child's presence; whether ACS's evidence was insufficient to establish neglect, at least as a matter of law and relatedly, whether the matter was improperly decided on a motion for summary judgment.

Change of Venue Motion Filed in US v. Khouli et al. Previews Possible Defenses in Alleged Antiquities Trafficking Case

Federal courthouse in Brooklyn, NY.
Photo by Jim Henderson.  CC

The latest pleading filed by Salem Alshdaifat’s attorney in the case of US v. Khouli et al. asks for a change of venue. The defense argues that personal and financial hardships faced by Alshdaifat, a Michigan resident, urge a transfer of the case from the federal district court in New York to Detroit.

The motion provides a possible preview into some of the defenses that may be available in the case, including:

• a characterization of the charged conduct as “regulatory-based criminal charges,”
• a claim that the objects that are the subject of the multi-count indictment are neither stolen nor contraband, and
•  an argument that Alshdaifat was a middle man who did not possess criminal intent.

A federal grand jury charged Alshdaifat in May 2011 with conspiracy to smuggle, alleging that he directed Mousa Khouli to wire $20,000 to Ayman Ramadan’s UAE bank account and that Alshdaifat received an airway bill from Ramadan showing that “wooden panels” were being shipped by Ramadan’s company in the United Arab Emirates to JFK airport in New York.  Moreover, Alshdaifat is charged with money laundering conspiracy.  He is also charged with smuggling goods into the country as well as fraudulent importation and transportation of goods.  The indictment describes the goods as an Egyptian inner coffin, Egyptian funerary boats and limestone figures, and a portion of an outer lid of a nesting Egyptian coffin set.  (A grand jury indictment is a mechanism that initiates a criminal case; it is not a finding of guilt.)

Writing in support of the motion for change of venue, Alshdaifat’s attorney previews the possible defenses in the case.  The following are excerpts from the Memorandum of Law dated November 21, 2011:

• “The facts surrounding these charged criminal violations of the Customs laws arise out of the importation of rare Egyptian antiquities, including a three-piece set of sarcophagi and other funerary objects. These artifacts were allegedly shipped to the United States in several packages, variously by international air mail and by private air and sea carriers. The government does not claim that the Egyptian artifacts were stolen or were otherwise contraband when they entered the country. Instead, the government's charges rest on a theory that the alleged conspirators willfully falsely or vaguely declared these artifacts in entry documents into the United States because the importer purportedly had insufficient or incomplete documents of origin for the objects and this might have caused them to be detained at a United States port-of-entry if detected.” (emphasis in the original)

•  “Mr. Alshdaifat was neither the U.S. importer nor the foreign exporter of the subject Egyptian artifacts. Based on the government's own claims, he is alleged to have been the “finder” or middleman that put the alleged foreign source of the artifacts (defendant [Ayman] Ramadan) in contact with the U.S. importer, or interested antiquities dealer (defendant [Mousa] Khouli). Despite being charged with a role that essentially ended prior to the importation process, Mr. Alshdaifat is charged with his co-defendants for knowingly participating in making false or intentionally incomplete statements on shipping labels on various shipments of these Egyptian antiquities.  The government's claims against Mr. Alshdaifat, therefore, rely on findings that he knew and intentionally joined a conspiracy to falsely declare the Egyptian artifacts in their shipment to the United States after his role in being a broker to the transactions was already completed.” (emphasis in the original)

•  “In the Egyptian sarcophagi transactions, however, Mr. Alshdaifat only had a broker's interest and did not deal in the artifacts himself. Somehow, however, he now finds himself charged together with the principals of those transactions for allegedly violating technical Customs laws in the mailing and shipping of the merchandise, a process in which he did not participate.”

• “The government’s position in support of criminal liability on the charged air mail shipments is based largely on the claim that Mr. Alshdaifat's co-defendants put these pieces in international mail or on an airplane as air cargo without completing more formal U.S. Customs paperwork with the specific intent to avoid Customs’ detection of these shipments and break U.S. Customs' law.  No lay witnesses exist to testify as to whether a defendant's act of putting these parcels in the mail or on an airplane constituted an intentional and clandestine conspiratorial effort to get the charged, legal merchandise into the United States.” (emphasis in the original and footnote omitted)

•  “In any event, Mr. Alshdaifat is not even implicated in the government's discovery with doing anything – in New York or elsewhere – to assist in the importation of the merchandise. He is charged with putting the alleged source of the Egyptian coffins and artifacts (defendant [Ayman] Ramadan) in contact with the New York antiquities dealer who purchased them (defendant [Mousa] Khouli). The government must concede that Mr. Alshdaifat was neither the importer nor exporter of the charged shipments, and therefore had no role in the actual shipment of the merchandise, i.e., the packaging, labeling and placing of the merchandise in international mail.  As such, he never had any contacts with New York.”

•  “The government does not charge that the Egyptian coffins and funerary objects were stolen property. The objects imported, therefore, are not contraband or unlawful to possess in the United States. The government's claims in this Indictment rest instead on the precarious theory that the method in which the artifacts were shipped into the United States was intentionally fraudulent even though the goods themselves were not banned or prohibited from entry. Indeed, the government does not even claim that the method of importation was intentionally fraudulent to avoid import duties, since antiquities are excluded from any import tax.” (emphasis in the original)

The defense contends that the government’s conduct materially affected Alshdaifat’s business.  Alshdaifat writes in a Declaration to the court dated November 21, 2011 that he started dealing in ancient coins in Canada, selling them primarily over the internet and at international trade shows.  He describes himself as a specialist in ancient Judean coins who gained admission to many coin auction houses and membership associations.  Alshdaifat adds that he was the moderator of the “Judean ancient coin section for the largest numismatic worldwide web community.”  Defense counsel’s Memorandum of Law explains:

“Mr. Alshdaifat's circumstances are particularly extraordinary. These include the fact that from his initial arrest, the government stacked the deck against him, making it untenable for him to get his fair day in court. On July 13, 2011, the government arrested Mr. Alshdaifat in his Michigan home and confiscated his entire business inventory of ancient coins, thereby effectively shutting his business down.  It did so despite the fact that the criminal charges in the Indictment had nothing to do with Mr. Alshdaifat's coin business. Subsequently, the government returned his coins but not until his business suffered a crushing, and possibly, fatal blow. Mr. Alshdaifat's reputation as an honest coin dealer has been battered; more importantly, he has been removed or suspended from all of the auction houses where he sold his coins. His business is in dire shape.” (emphasis in the original)

Information supplied to the court describes the relationship between Alshdaifat and co-defendant Ayman Ramadan.  Court papers remark that “Mr. Alshdaifat has purchased ancient coins before from defendant Ramadan in the United Arab Emirates ("U.A.E.") and has sold coins to defendant Khouli in New York.  That is how he knew two of the other parties charged in this Indictment.”

CONTACT: www.culturalheritagelawyer.com

Как докторам защититься от «охоты на ведьм» в период кризиса системы здравоохранения

Русский Нью-Йорк онлайн - новости США по-русски

Как докторам защититься от «охоты на ведьм» в период кризиса системы здравоохранения

Сегодня медицинские работники превращены в политических "козлов отпущения" из-за финансового кризиса системы здравохранения и вышедшей из под контроля войны с наркотиками в США. Для борьбы с нарушениями и обманом в области здравоохранения, правительство приняло множество очень жёстких законов и директив.

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Egyptian Museum No Longer Accepting Cultural Object Inquiries (For Now)

The Egyptian Museum, Cairo
Source: Bs0u10e01, Creative Commons

According to an email by the General Director of The Egyptian Museum in Cairo, the museum will not be in a position to respond to inquiries regarding any artifacts until June 2012. This information is important to anyone conducting provenance research relating to Egyptian cultural objects. The email appears below:

To whom it may concern,

Due to the current situation in Egypt, I regret to say that the

Registration, Collections Management and Documentation

Department (RCMDD) and the curatorial staff of the Egyptian

Museum, Cairo will not be accepting any new requests for

object information and images starting from 1 December, 2011

until 30 May, 2012. This is due to the huge backlog that was

created following the events of January 28th, as well as the

renovations that are currently happening in the Museum.

Information on objects from our collection can still be obtained by

accessing the intranet version of the Museum Database on the

computers dedicated to scholars in the RCMDD office, located in

the museum basement.  The department is open to scholars from

9:30 am until 2:00 pm, Sunday-Thursday.

Sincerely,

Dr. Tarek El Awady

General Director,

The Egyptian Museum, Cairo

Source: Egyptologists' Electronic Forum, forwarded by Dr. Yasmin El Shazly.

CONTACT: www.culturalheritagelawyer.com

Second Circuit Court of Appeals On Absolute Prosecutorial Immunity

FLAGLER v. TRAINOR

Stephanie FLAGLER, Plaintiff–Appellant, v. Matthew E. TRAINOR, Assistant District Attorney, Fulton County, New York and The County of Fulton, New York, Defendants–Appellees.

Docket No. 10–4081–cv.
Argued: Sept. 14, 2011. -- November 21, 2011

Before CALABRESI, WESLEY, and LYNCH, Circuit Judges.
Bradford Benson, The Golden Law Firm, Utica, NY, for Plaintiff–Appellant.Thomas Higgs, Murphy, Burns, Barber & Murphy, LLP, Albany, NY, for Defendants–Appellees.
This case requires us to revisit the purpose and scope of absolute immunity for prosecutors.
I.
Plaintiff–Appellant Stephanie Flagler was a victim of domestic violence at the hands of her ex-boyfriend, Brandon Becker. A grand jury indicted Becker for a criminal matter in which Flagler was the complaining witness. Becker's trial was scheduled to begin on March 12, 2007. In the days leading up to Becker's trial, Assistant District Attorney Matthew Trainor grew concerned that Becker was encouraging Flagler to leave the state in order to avoid testifying at his trial. In addition, Trainor spoke with Becker's ex-wife, who claimed that Flagler had told her that she planned to leave the state from March 5, 2007 to March 12, 2007 and would not talk to anyone in the District Attorney's office.

A. Material Witness Order and Arrest Warrant.
Trainor sought a material witness order to secure Flagler's attendance at Becker's trial pursuant to New York Criminal Procedure Law Article 620. He alleged that Flagler had quit responding to telephone calls after January 5, 2007, and that she was “avoiding service of subpoena [sic] for the upcoming trial.” He also recounted for the court his conversation with Becker's ex-wife. Trainor moved for the material witness order on March 1, 2007. On the basis of Trainor's affirmation, the County Court ordered Flagler to appear at a hearing on March 7, 2007 in order to determine whether she “should be adjudged a material witness.” The court also issued a material witness arrest warrant. In doing so, the judge found “reasonable cause” to believe that Flagler “would be unlikely to respond” to the court's order voluntarily.

In her complaint, Flagler alleged that Trainor knowingly made false statements in support of the material witness order. She claimed that while she had planned to leave for a vacation on March 8, 2007, Trainor knew that she would return on March 11, 2007, in time for Becker's trial. She asserted that despite knowing her home, work, and school addresses, Trainor made no attempt to notify her about Becker's upcoming trial or to subpoena her. In addition, Flagler alleged that while the County Court issued the material witness arrest warrant on March 1, 2007, she was not arrested until March 7, 2007, one day after she called Trainor and confirmed that she would testify.

B. Flagler's Arrest, the Material Witness Hearing, and the Confiscation of Flagler's Cell Phone.
Pursuant to the material witness arrest warrant, the Utica Police Department arrested Flagler at her home and transported her to the Fulton County Supreme Court for the March 7, 2007 hearing. Justice Richard T. Aulisi appointed a Fulton County Public Defender to represent Flagler at the material witness hearing. At the hearing, Flagler told Justice Aulisi that she had been cooperative with the District Attorney's office and had never said she would not come to court. Trainor never told Justice Aulisi about Flagler's phone call from the prior day, and despite her communications, Trainor recommended that the court remand her into custody. After the hearing, the Fulton County Sheriff's Department took Flagler back into custody and held her overnight without bail. She appeared before the County Court the following morning, and was released on bail.

The Sheriff's Department confiscated Flagler's cell phone when the Department took custody of Flagler. Flagler alleged that the Sheriff's Department gave her cell phone to Trainor and that someone in the District Attorney's office unlawfully tried to access Flagler's voicemail. Flagler also alleged that Trainor has refused to return her cell phone, even though Becker's conviction is final.

C. Trainor's Other Alleged Wrongful Acts.
Flagler also alleged that Trainor made a defamatory statement against her by falsely proclaiming to the press that she had been “hiding out,” and that Trainor persuaded Becker's ex-wife to record telephone calls with Flagler without her consent.

D. Procedural History.
Trainor moved to dismiss Flagler's complaint solely on the basis of absolute prosecutorial immunity. Mot. to Dismiss 1–5, Flagler v. Trainor, No. 08–cv–138 (N.D.N.Y. Jan. 14, 2009), ECF No. 10–7. The District Court granted the motion, dismissing all of Flagler's federal claims and declining to consider Flagler's remaining state claims without a federal counterpart. Flagler, 2010 WL 3724015, at *4–6. Flagler filed a timely notice of appeal, and we now affirm in part and vacate and remand in part.

II.
A. Absolute Prosecutorial Immunity.2
Prosecutors are generally immune from liability under 42 U.S.C. § 1983 for conduct in furtherance of prosecutorial functions that are intimately associated with initiating or presenting the State's case. Imbler v. Pachtman, 424 U.S. 409, 427–28 (1976). Section 1983 immunity is grounded in the prosecutor's common law tort immunity. That immunity arises from the “concern that harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.” Id. at 423. “[I]f the prosecutor could be made to answer in court each time [an aggrieved defendant] charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.” Id. at 425. Immunity protects the proper functioning of the prosecutor's office by insulating the exercise of prosecutorial discretion. Kalina v. Fletcher, 522 U.S. 118, 125 (1997).

Yet absolute prosecutorial immunity is not without its costs. In Imbler, the Supreme Court explained:
To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system.

424 U.S. at 427–28; see also Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949). Thus, while absolute prosecutorial immunity may leave an injured party without a remedy, society has found more benefit in insulating the exercise of prosecutorial discretion.

That being said, the Supreme Court has clarified that immunity is not a function of the prosecutor's title. Kalina, 522 U.S. at 125, 127. Rather, it attaches to prosecutorial functions that are intimately associated with initiating or presenting the State's case. Id. Prosecutors are absolutely immune from suit only when acting as advocates and when their conduct involves the exercise of discretion. Id. at 127. Thus, the Supreme Court has found prosecutors absolutely immune from suit for alleged misconduct during a probable cause hearing,³ in initiating a prosecution,⁴ and in presenting the State's case.⁵ On the other hand, the Court has withheld absolute immunity for conduct unrelated to advocacy, such as giving legal advice,⁶ holding a press conference,⁷ or acting as a complaining witness.⁸

The task then is to determine whether each asserted wrongful act falls within the zone of Trainor's absolute immunity as a prosecutor.

1. False Statements Made in Support of a Material Witness Order.
Flagler contends that by making sworn factual statements in support of the order, Trainor was acting as a complaining witness rather than as an advocate. In Kalina v. Fletcher, the Supreme Court held that a prosecutor was not absolutely immune from liability for making false statements in support of an arrest warrant. There, the prosecutor provided a “Certification for Determination of Probable Cause” that summarized the evidence supporting the arrest warrant. 522 U.S. at 121. Rather than attaching to the motion an affidavit from a witness with personal knowledge of facts, the prosecutor “personally vouched for the truth of the facts set forth in the certification.” Id.

The certification included two inaccurate factual statements, id.; the charges against the defendant were eventually dismissed, id. at 122. The former defendant sued the prosecutor under Section 1983 “based on [the prosecutor's] alleged violation of his constitutional right to be free from unreasonable seizures.” Id. The prosecutor moved for summary judgment based on absolute prosecutorial immunity. The district court denied immunity and both the Ninth Circuit and Supreme Court affirmed. Id. at 122–23.

After surveying the history of prosecutorial immunity, the Supreme Court recognized immunity's two important functions: (1) “protecting the prosecutor from harassing litigation that would divert [the prosecutor's] time and attention from his official duties”; and (2) “the interest in enabling [the prosecutor] to exercise independent judgment when deciding which suits to bring and in conducting them in court.” Id. at 125 (internal quotation omitted). The Court recognized that the second function—insulating the prosecutor's discretion when acting as advocate—was of “primary importance.” Id. But sworn statements in support of an arrest warrant were not intimately associated with a prosecutor's duty to advocate.⁹ Rather, offering sworn statements was an “act that any competent witness might have performed.” Id. at 129–30. The prosecutor was acting as a complaining witness, not as an advocate; “[t]estifying about facts is the function of the witness, not of the lawyer.” Id. at 130. The Court also noted that “neither federal nor state law made it necessary for the prosecutor to make [the factual assertion].” Id. at 129.

Kalina is easily distinguishable from the case before us. There are key differences between arrest warrants and material witness orders. For one, in New York, only a prosecutor or defense attorney can seek a material witness order. N.Y.Crim. Proc. Law § 620.20(1); see also N.Y.Crim. Proc. Law § 620.30(1) (requiring the “applicant” to make a written, sworn application in order to commence material witness proceedings; the applicant is either the prosecutor or defense attorney). Further, an arrest warrant is one of the first steps required to begin a criminal investigation. A material witness order, in contrast, may issue only when a prosecution is ready for trial.

Seeking a material witness order is within the prosecutor's “function” as an advocate. A prosecutor employs prosecutorial discretion when determining whether to seek such an order. See Betts v. Richard, 726 F.2d 79, 79 (2d Cir.1984)¹⁰ ; Daniels v. Kieser, 586 F.2d 64, 69 (7th Cir.1978). It is an act “intimately associated” with presenting the State's case. The material witness order ensures the attendance of a “material” witness at trial, which often makes or breaks the prosecutor's case.
Nevertheless, Flagler argues that the Third and Ninth Circuits have denied absolute prosecutorial immunity for wrongdoing in connection with prosecutorial functions. Flagler, however, fails to recognize that the wrongdoing in those cases was either administrative in nature¹¹ or akin to the function of law enforcement officers in protecting the public safety by making a complaint of wrongdoing.¹² Therefore, notwithstanding Flagler's arguments to the contrary, we find Trainor absolutely immune for making alleged false statements in support of a material witness order and warrant.

2. Alleged Defamatory Statements Made to the Press.
Flagler argues that Trainor defamed her by falsely stating to the press that she had been “hiding out” before the trial. Trainor only claimed absolute immunity from liability for this claim; he did not challenge the substance of the pleading.

In Buckley v. Fitzsimmons, the Supreme Court held that “statements to the media are not entitled to absolute immunity.” 509 U.S. 259, 277 (1993). The Court explained that while absolute immunity shields statements made during a judicial proceeding, it does not shield statements made outside court. Id. The Court reasoned: “The conduct of a press conference does not involve the initiation of a prosecution, the presentation of the State's case in court, or actions preparatory for these functions.” Id. at 278. The Court recognized that while statements to the press may be an “integral part” of the prosecutor's job, the duty is no different than that for other executives who deal with the press and enjoy only qualified immunity. Id. Because absolute immunity does not shield statements made to the press, the district court erred by dismissing Flagler's defamation claim on account of absolute immunity.

3. Alleged Accessing of a Person's Voicemail without Consent and Persuading Becker's Ex–Wife to Record Telephone Calls.
We have no trouble concluding that Trainor is not absolutely immune from allegedly accessing, or ordering someone to access, Flagler's voicemail without her consent, or from persuading Becker's ex-wife to record telephone calls with Flagler.¹³ The alleged misconduct is akin to investigatory acts, and absolute immunity does not shield investigatory acts. See, e.g., Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009); Imbler, 424 U.S. at 430; Pierson v. Ray, 386 U.S. 547, 557 (1967). As a result, the district court erred by dismissing Flagler's claims on this ground.

4. Alleged Withholding/Preserving of Evidence After a Criminal Prosecution Has Run its Course.
Trainor argues that by withholding Flagler's cell phone, he is preserving evidence and that preservation of evidence is intimately associated with presenting the State's case. In Parkinson v. Cozzolino, we held that a prosecutor is absolutely immune for withholding/preserving evidence to be used in connection with a criminal prosecution, and that immunity extends throughout a subsequent appeal. 238 F.3d 145, 152 (2d Cir.2001). We made no determination, however, “as to when such immunity ends.” Id.

We recognize the inherent conflict between Flagler's argument and a prosecutor's duty to defend a conviction. If we agreed with Flagler, absolute immunity would end once the time to appeal and collaterally attack a conviction had run. But some collateral attacks, like actual innocence, have no statute of limitations. And as technology advances, we learn of new tests and tools that make fact finding more precise—technologies once thought inconceivable. Therefore, without fuller development of the issue by thoughtful briefing and factual development in the district court, we are unwilling to draw a line as to how long absolute immunity shields a prosecutor for withholding/preserving evidence.

Rather, we recognize that Trainor did not raise Cozzolino below. We therefore vacate and remand the district court's order and judgment so it may consider whether Trainor is absolutely immune for preserving evidence—Flagler's cell phone—after Becker's conviction became final. Of course, the district court need not address this issue if it deems summary judgment appropriate on the basis of qualified immunity.

III.
We AFFIRM the district court to the extent it found Trainor absolutely immune from Flagler's claim that he violated her constitutional rights by making false statements in support of a material witness order. We VACATE and REMAND the rest of the order and judgment because absolute immunity does not immunize prosecutors from liability for making defamatory statements to the press, accessing a person's voicemail without consent, or persuading a party to a conversation to record its contents; and, the district court should consider in the first instance whether Trainor is absolutely immune for continuing to withhold/preserve evidence—Flagler's cell phone.

I agree completely with the majority opinion and join it fully. I write separately because our Court has recently decided Collazo v. Pagano, 656 F.3d 131 (2d Cir.2011) (another opinion with which I agree completely), whose relation to this case is, I think, worth underscoring.

In Collazo, we held that claims dismissed on the ground of absolute prosecutorial immunity are considered “frivolous” for purposes of 28 U.S.C. § 1915(g), the “three-strikes” provision.¹ Id. at 134. We expressly limited our holding to cases in the “readily distinguishable heartland of immune prosecutorial conduct that [is] ․ ‘intimately associated with the judicial phase of the criminal process.’ “ Id. n. 2 (citing Burns v. Reed, 500 U.S. 478, 486 (1991)). We also excluded “cases in which the complaint is not dismissed sua sponte pursuant to 28 U.S.C. § 1915(g).” Id.

I write to clarify the following. A court may dismiss a claim sua sponte on three grounds pursuant to 28 U.S.C. § 1915(e)(2)(B): If the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune.² The last of these grounds, immunity, would be a basis for dismissal under § 1915(e)(2) even if the claim in the complaint were a serious one and anything but easy. In other words, if a dismissal occurred pursuant to § 1915(e)(2) on absolute immunity grounds, it could not, without more, be per se frivolous for purposes of the three-strikes determination under § 1915(g). Conversely, § 1915(g)—the basis for dismissal expressly mentioned in Collazo—applies only where the district court finds that a prisoner previously has brought three or more frivolous lawsuits. This means that a dismissal citing § 1915(g) must necessarily entail a finding, whether implicit or explicit, that at least three former claims were frivolous. And a dismissal based on immunity will not be frivolous unless the district court making the § 1915(g) determination deems the former case to fall within the “distinguishable heartland of immune prosecutorial conduct.” Collazo, 656 F.3d at 134 n. 2.

The case before us is a perfect example of a claim of absolute immunity that, though it loses (I of course refer to the portion of our opinion affirming the district court's dismissal), is anything but frivolous. Plaintiff–Appellant's claim that absolute immunity does not apply, relies, inter alia, on the Ninth Circuit opinion in Cruz v. Kauai Cnty., 279 F.3d 1064 (9th Cir.2002), and, as our opinion points out, our decision, whether or not in conflict with Cruz, is at least in tension with it. To suggest, as Appellant does, that Cruz should guide us, is not frivolous and is not made frivolous by the fact that we rejected the suggestion.

The difference between a dismissal on absolute immunity grounds pursuant to § 1915(e)(2)(iii), and a dismissal as the Court in Collazo required, pursuant to § 1915(g), is crucial. The first necessarily allows a claimant to assert that the claim was not frivolous in the circumstances of that case, and, hence, does not justify a strike for the purposes of the three-strikes finding. The second, as Collazo held, forecloses that argument.

FOOTNOTES
2. In this case, the standard of review is well known and not at issue. “We review de novo a district court's grant of a motion to dismiss pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint as true and drawing all inferences in the plaintiff's favor.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 685 (2d Cir.2001). We will “affirm only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Id. (internal quotation marks omitted) (alterations in original).
3. Burns v. Reed, 500 U.S. 478, 492 (1991).
4. Imbler v. Pachtman, 424 U.S. 409, 431 (1976).
5. Id.
6. Burns, 500 U.S. at 492–96.
7. Buckley v. Fitzsimmons, 509 U.S. 259, 27–78 (1993).
8. Kalina v. Fletcher, 522 U.S. 118, 12–31 (1997).
9. The Court held that preparing and drafting of the certification was protected by absolute immunity because it was intimately associated with a prosecutors's advocacy. It was only the act of “personally attesting to the truth of the averments” that went beyond the prosecutor's duty to advocate. Kalina, 522 U.S. at 129.
10. In Betts v. Richard, 726 F.2d 79 (2d Cir.1983), we held that a prosecutor who had obtained a writ of capias (essentially the Connecticut equivalent of a material witness warrant) to ensure the presence of the complaining witness at a criminal trial was immune from liability under § 1983. It is arguable that Betts is controlling authority in this circuit, subject only to whether Kalina abrogates its precedential force. Because we believe that absolute immunity applies even on the analysis set forth in Kalina, and would reach the same result even if Betts had never been decided, we do not need to decide whether Kalina sets forth a sufficiently novel analysis to require us to rethink the Betts precedent. See Union of Needletrades, Indus. & Textile Employees v. INS, 336 F.3d 200, 210 (2d Cir.2003) (setting forth the standard for when we may disregard circuit authority in light of intervening Supreme Court precedent). It follows from our analysis that while the Betts court did not have the benefit of Kalina, and applied a somewhat different framework derived from earlier cases, its result would survive any rethinking that Kalina might require.
11. Odd v. Malone, 538 F.3d 202, 213, 215–16 (3d Cir.2008). In Odd, the Third Circuit held that keeping the court informed about the status of a criminal proceeding (which could affect a material witness's continued detention) was an administrative task. The court recognized, however, that securing a material witness's attendance at trial was shielded by absolute immunity. Id. at 212. That is the case before us; Flagler challenges Trainor's conduct that was intimately associated with his securing her attendance at trial as a material witness.
12. In Cruz v. Kauai County, the Ninth Circuit denied absolute immunity because the prosecutor's conduct—swearing to facts in support of a bail revocation—was akin to conduct of a complaining witness, even though Hawaii law restricted authority to seek bail revocation to a prosecutor. 279 F.3d 1064, 1067–68 (9th Cir.2002). We recognize that our holding may be in tension with Cruz. In Cruz, however, the district court granted only qualified immunity, so the Ninth Circuit's discussion about absolute immunity is largely dicta. And, we believe that in seeking a material witness warrant, despite signing an affidavit, the prosecutor is intimately involved in advocacy—assembling and presenting the State's case.
13. We take no position on whether these acts occurred or whether they would constitute actionable misconduct if they did. In general, so long as one party to a conversation consents to its recording, the recording is lawful under both New York and federal law. See N.Y.Crim. Proc. Law § 700.05; N.Y. Penal Law § 250.00; United States v. White, 401 U.S. 745 (1971).
1. Section 1915(g) provides:In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
2. The criteria for accumulating strikes under § 1915(g) track only two of the three grounds for dismissal under § 1915(e)(2)(B). They do not include immunity. See 28 U.S.C. § 1915(g). Nonetheless, we have held that under certain circumstances, a district court making the “three-strikes” determination under § 1915(g) may deem a prior dismissal on account of immunity as frivolous. Collazo, 656 F.3d at 134, Mills v. Fischer, 645 F.3d 176, 177 (2d Cir.2011).
WESLEY, Circuit Judge:

Feds Drop All Charges Against Developer in Senator Kuger's Bribery case

 

Feds drop all charges against developer at heart of pending corruption case against state Sen. Carl Kruger 

Lawyer: It's 'the first step toward complete exoneration of Sen. Kruger.'

BY GREG B. SMITH 
NEW YORK DAILY NEWS

Thursday, November 24 2011

LINK

The feds have quietly dropped all charges against a Brooklyn developer at the heart of the pending corruption case against state Sen. Carl Kruger.

The decision is a partial victory for the longtime Brooklyn politician because it eliminates one of the key corruption allegations leveled against him. Kruger’s attorney, Benjamin Brafman, called it “the first step toward complete exoneration of Sen. Kruger.”

Last spring, the developer, Aaron Malinsky, was one of eight defendants swept up in a broad-ranging indictment alleging multiple schemes by Kruger and Brooklyn Assemblyman William Boyland to sell their office.

Malinsky was accused by Manhattan U.S. Attorney Preet Bharara of bribing Kruger to win his support for projects he was trying to build in Brooklyn.

On Tuesday, prosecutors signed an agreement to defer prosecution of Malinsky, stating the interest of all parties “will best be served” by the decision.

While Malinsky's arrest was accompanied by a press release, the agreement to drop all his charges was filed without comment. A spokeswoman for Bharara declined to elaborate on why the charges were dropped.

The three-page agreement simply stated that the decision was reached “after a thorough investigation.” But Malinsky's attorney, Scott Mollen, said his client provided prosecutors with ample evidence that the so-called bribes were actually payments for “bona fide and valuable real estate consulting services.”

Malinsky felt “relieved, vindicated and grateful that the prosecutors met their ethical obligation to not proceed with this case,” Mollen said.

The decision follows the recent acquittal of Boyland, who was charged in a separate scheme to shake down a local hospital through bogus “consultant” payments. But the case against Kruger is still grinding toward trial early next year, and one of the defendants, David Rosen, named in the original indictment was convicted in September of multiple bribery counts.

gsmith@nydailynews.com