Notice of Appeal Filed by U.S. Attorney in St. Louis Art Museum (SLAM) Ka Nefer Nefer Mummy Mask Case

One day after the U.S. District Court for the Eastern District of Missouri denied the government's latest effort to forfeit the Ka Nefer Nefer mummy mask held at the St. Louis Art Museum (SLAM), U.S. Attorney Richard Callahan filed a notice of appeal.

The notice challenges Judge Henry E. Autrey's denial of the government's motion to strike SLAM's claim, the dismissal of the government's verified complaint to forfeit the mask, the denial of the government's motion for reconsideration to reopen the forfeiture case, and the refusal to allow federal attorneys to amend its complaint.

The case now moves to the Eight Circuit Court of Appeals, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Ithaca Lawyer Why Sometimes the Need for Speed is Costly

As a traffic lawyer I handle a great many speeding tickets, and other assorted violations in upstate New York. The signs (speed limits) change frequently from the lows of 15mph in school zones to the highs of 65mph on some of our faster byways. It is easy to get caught in a hazy daze with your mind endlessly wandering and wondering when am I gonna get there? It all starts to look the same, mountain, grass, cow, mountain, grass, cow, oh a gas station. You can completely zone out, like being hypnotized. Steuben County has town after town like this, just rolling along the freeway, you must be careful not to get lulled to sleep.

Whether you are from Canada or Utah it is easy to go fast without realizing it, especially on beautiful roads with bucolic scenery. Suffice it to say driving through the center of NYS on Interstate I-17/86 can get boring, you just want to get there, wherever there is.

Recently, the New York Times did an article on the real costs of moving violations to your auto insurance. What will a speeding ticket cost you in the long run? But more importantly they highlighted that many moving violations have varying effects upon your auto premiums.

http://bucks.blogs.nytimes.com/2012/05/17/what-that-speeding-ticket-may-really-cost-you/#postComment

1. Auto Insurance rates, terms, coverages are STATE/LOCATION SPECIFIC.

Remember that car insurance is always state specific, in fact they are location specific. So someone from California may generally pay more than someone from Mississippi. Then they will figure where in that state, which county, then city location or rural location, higher population versus lower population. Areas with more people usually pay more because they naturally are more accidents. Is the car to housed in a garage or at an apartment complex on the street? So the first factor you may have little to no control over. You live where you live, and you reside where you reside, end of that story.

2. Auto Insurance companies consider both your FINANCIAL HISTORY AND DRIVING HISTORY. 


The insurance companies believe that issues in managing finances (loans, debt, bankruptcy) reflect poor decision making or impulsivity. BTW Interestingly many DWI and other criminal cases involving drugs require a drug/alcohol assessment (diagnosis, recommendation). The most current drug/ alcohol evaluators are now using assessment questionnaires that involve this impulsivity connection to food, sex, gambling, and money to determine a potential link to drug addiction behavior or issues as well. The NYS DDP (drinking driver program) uses a type of self test that reflects this paradigm as well. The goal to to weed out the real problem drivers (DWI re-offenders). All this is based upon research in Sweden that discovered a specific personality type that has more severe problems with drugs and alcohol.

• Hubicka, Beata, et al. "Personality traits and mental health of severe drunk drivers in Sweden." Social Psychiatry and Psychiatric Epidemiology (2009). Web. 3 September 2010

Your FICO is linked to your Insurance Costs

This is why your FICO score can, and will impact not only your ability to get money (credit, loans, mortgage) but also your ability to get less expensive insurance on your home and/or car. The powers that be believe that poor money management (decision making) is directly linked with your ability to assess and gauge other life risks, like driving responsibly.

In the same respect your driving history will be looked at before you are given an insurance premium quote. Those with histories of bad driving which include "at fault" property damage accidents, accidents with personal injuries, lapses in insurance coverage, and/or moving violations will pay higher costs. In addition, they will receive less coverage with more cost. They may not even get the best (AAA rated carrier) to offer them coverage but a company with a low to poor rating on accepting claims.

This next table was taken from the insurance.com analysis of driving history and rate increases over a two year time period.

1. Reckless driving: 22 percent (this is misdemeanor crime in NYS, typically involving driving erratically in areas where people are present, like on sidewalks)

2. Driving while under the influence: first offense: 19 percent (this is a unclassified misdemeanor in NYS called DWI. In New Jersey, first time and second time DUI are merely traffic violations)

 
3. Driving without a license or permit: 18 percent (another criminal misdemeanor in NYS called AUO 3rd, aggravated unlicensed operation)

4. Careless driving: 16 percent

5. Speeding 30 m.p.h. over the limit: 15 percent (this is 6 point ticket in NYS, at 31MPH over NYS classifies as a 8 point violation , at 11 points you are suspended)

6. Failure to stop: 15 percent
7. Improper turn: 14 percent
8. Improper passing: 14 percent
9. Following too close/tailgating: 13 percent (this is one of many enumerated "serious" traffic violations in NYS and a four point ticket)

10. Speeding 15 to 29 m.p.h. over limit: 12 percent (this is another "serious" traffic violation in NYS)

11. Speeding 1 to 14 m.p.h. over limit: 11 percent (1 to 10mph over is a 3 point violation and at 11mph over the limit the punishment hits 4 points.

12. Failure to yield: 9 percent
13. No car insurance: 6 percent
14. Seat-belt infractions: 3 percent

In NYS, companies can increase your insurance premiums for three years (look back period) after their discovery. I have blogged previously about which specific violations these are:

New York State Insurance Law § 2335 can be complicated to read and understand. 
It loosely states that an insurance company CANNOT raise your premiums if you have a traffic infraction

UNLESS it is one of the following situations:

1. speeding more than 15 miles per hour;
2. reckless or speeding resulting in a death;
3. 3 speeding tickets;
4. driving drunk (DWI) or impaired (DWAI);
5. leaving an accident w/o reporting it;
6. racing/speeding contests or running from the police;
7. 2 or more moving violations.

TAKEAWAY:  You should preserve your record and reputation by lessening any tickets (driving violations) any where they may occur because if you figure the long term costs, an average increase of 15% to 20% over the long haul could amount to hundreds to thousands of dollars.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Called Out or Called On? Who Should Answer Legal Questions?

Wow not a day goes by that I am not surprised by something. I state for the record that I focus my practice on the specific areas of DWI defense and personal injury within the Finger Lakes Region of NYS. I am licensed in PA, NJ, and FL as well but the main focus of my practice lies here and now.

I will answer questions, guide, and represent people in those areas of law of which I am familiar.
To me it is more than legality it is ethical and professional to focus yourself. Too many lawyers spread themselves and their practices on thin ice by practicing based upon volume and a gazillion areas. They do everything just not particularly well or thoroughly.

I practiced as a Chiropractor in Florida for ten years. When I sold that practice to enter legal practice I was done. The door closed, and I have only focused on law.

I will NOT answer questions or represent people for any of the following:

Bankruptcy, family law, corporate law, real estate, divorce or separation, contracts, landlord tenant, domestic violence, mediation. There are other areas but I think you get my point.

For me it is Depth over breadth

If it relates to cars and/or drugs (areas I enjoy) then I love to help people legally.

Why don't I do everything? 
Why don't I answer questions outside of my areas?

After all any licensed lawyer is legally allowed to do (to represent) just about anyone for anything.

Because it is 2012, and if you do not practice in that legal area regularly you may be outside of your box. This is dangerous territory to be in if an issue (legal or practical) may arise. I have spoke of the collateral consequences of DWI and traffic offenses, I would imagine that there are also many collateral consequences that you must be aware of when litigating or mediating a divorce or fighting for custody of a child. I could not even begin to understand all the complexity of those areas.

Even in a so called, Simple Divorce, there may be tax issues, Federal and State issues, debt issues, parenting issues, and these issues do not resolve, they go on forever, and may be ongoing for the life of a child or children of that union.

What I am trying to say in no uncertain terms is always consult with people on issues that they are at least familiar with.

I belong to the National College of DUI Defense. I am an active member, and attend numerous seminars in many states. Many of the same legal and practical issues present themselves across state lines and borders. The types of DUI/DWI/OWI have many similarities, and the defenses that may work in one place may in fact be applicable in another. The same breath machines (breathalyzer) are used from state to state. I live and breathe the 4th, 5th, and 6th amendments.

Search and seizure is Federal and State
Right to remain silent
Due Process/ criminal hearings and trials

Cross examining police is an art form. If you have not examined cops at DWI hearings you are way outside your comfort zone when you give it the first time college try.

Our DUI listserve is active 24/7 in an exchange of ideas, philosophy, and legal arguments. I have learned DWI law in Texas, GA, LA, IL, and a host of other places that I am NOT licensed.

All of that said if it came time for representation of a client I recommend using a local attorney who is versed in that area of the law. But if I had to choose between a DUI lawyer from Hawaii and a divorce lawyer from California to help with my DWI case I think it would be better to choose the lawyer who understood the legal issues I would be facing. It would be better to choose a lawyer not merely licensed to practice in a particular state but a lawyer experienced in that area of law.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Judge Once Again Dismisses Ka Nefer Nefer Forfeiture Case

U.S. District Court Judge Henry Edward Autrey yesterday denied the government's motion to file a new complaint to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM).  In a brief order, the judge described how he had ruled on the case twice before:

"On March 31, 2012 the Court entered an Order dismissing the Verified Complaint in the instant matter. After allowing The Government an extension of time to file its Motion for Reconsideration, on May 7, 2012, The Government filed a Motion to Reconsider Order and Opinion Dismissing Verified Complaint. In the motion, The Government requested, in the alternative, that the Court grant The Government an additional seven (7) days to move for leave to file an amended complaint before entry of judgment. On June 1, 2012, The Court denied the Government’s Motion for Reconsideration in its entirety. For the reasons outlined in The Court’s March 31, 2012 Order of Dismissal, and for the reasons offered in its Order denying reconsideration, The Court denies The Government’s requested leave raised in its motion submitted on June 8, 2012." (Citations omitted).

The U.S. Attorney's Office must now consider whether to appeal the rulings to the Eight Circuit.

UPDATE: The case will be appealed.

CONTACT: http://www.culturalheritagelawyer.com/
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

NYS DWI Probation: NO Alcohol is the Rule, the Law, and the Final Word

Some things are very simple and others complex. Today I want to answer a very simple question:

Can I have an occasional drink if I on (in) NYS probation for a drinking/drugging related offense?

Fast answer, NO. If your crimes in NYS involve the use of alcohol and/or drugs and you receive a sentence of probation (3 years for a misdemeanor level crime and 5 years for a felony level crime) then there is ALWAYS a MANDATORY NO ALCOHOL provision as part of your Probation Conditions.


Probation has lots of conditions. Conditions mean that before you do this or that you MUST do something . . . like ask permission to leave the county or the state, or to change jobs.


check out my prior blog: why probation can be worse than jail here:


http://ithacadwi.blogspot.com/2009/05/is-dwi-probation-supervision-worse-than.html 


OR you can never do this or that . . . while on/in probation . . . like drink alcohol or use recreational substances (marijuana). 


What about restaurants? Can I go out to eat where they serve alcohol?


You can't be in bars when you are on probation or what many like to call a tavern but is really a bar that serves food. Sometimes there is a thin line these days between places that are really in the alcohol business but also serve food. What percentage we are discussing can be nitpicking but probation will definitely tell you what they think (how they feel) about this topic, is it the Olive Garden or the Tasty Olive? One being a well known chain of bad Italian food, and the other being a bar down the street that thinks olives are a vegetable. Maybe you will be allowed to go to TGIF or Applebees but not to sit at the bar or in the bar area. 


I know you are thinking am a child or an adult? Because you are treated as a child while on probation. In fact for those young ins on probation it is called P.I.N.S. (persons in need of supervision). 


RANDOM SEARCH & SEIZURE IS THE NEW LAW

You can be randomly tested via blood, breath, and urine for the use of any alcohol. Your home is free rein for search and seizure at any time by your probation officer. I have even had probation run liver function tests on my clients because they suspected weekend binges on drugs and/or alcohol. 


Probation is the P.S., Not Just the P.


Remember Probation is really P.S. (probation supervision), they feel you are in need of being supervised and monitored because you cannot regulate and control your own life. If the PSI (pre sentence investigation) indicated that the cause of your issues was drugs and/or alcohol then that cause must be removed as the precursor of the effect (your criminal behavior).

CD Sentencing and Alcohol Use


Even in court cases where there has been a reduction from a felony DWI to a misdemeanor DWI they may impose a special NO ALCOHOL provision on even a CD (conditional discharge). CDs can lawfully range from one to two years but most typically are set by the Judge for a one year term in most NYS DWI cases.

Finally, What is a VOP?

A VOP, violation of probation (use of alcohol) can and will result in county jail time. The prosecution in my area (upstate) generally wants 6 months on these types of violations of probation.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

DDC Whistleblower Attorney Christine Anderson Is Back In Federal Court

NY Legal Ethics Scandal Whistleblower Back in Federal Court

LINK

Witness Tampering Brings NY Attorney Christine Anderson Back to Federal Court
An Ethics Rouser EXCLUSIVE by Abe King - June 27, 2012 
Widespread 'Ethics' Corruption Now Includes Threat on Witness in a Federal Proceeding

The Corruption at Manhattan's so-called 'Ethics' Oversight Committee is again before Federal District Court Judge Shira A. Scheindlin. Christine Anderson, a New York attorney for nearly 30 years, filed her latest papers on June 25, 2012.  Anderson has requested that Judge Scheindlin reopen her case as details recently revealed in another federal proceeding showed that an Anderson witness was threatened. It was a federal crime to engage in witness tampering or to threaten a witness in a federal proceeding. 

Recently, The Second Circuit Court of Appeals guided Anderson to the District Court:  "At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 11th day of May, two thousand twelve. Present:Chester J. Straub, Robert D. Sack, Gerard E. Lynch, Circuit Judges - FILED MAY 11, 2012 Appellant, pro se, moves to recall the mandate. Upon due consideration, it is hereby ORDERED that the motion is DENIED. Appellant has not made a showing of exceptional circumstances that would entitle her to the requested relief.See British Int'l Ins. Co. Ltd. v. Seguros La Republica, S.A., 354 F.3d 120, 123 (2d Cir. 2003). Moreover, the argument in Appellant's motion, which relies on "newly discovered evidence," is more appropriately raised in a Fed. R. Civ. P. 60(b) motion filed in the district court. See Fed. R. Civ. P. 60(b)(2); Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18-19 (1976) (holding that a party may pursue in the district court a Rule 60(b) motion to vacate a judgment that an appellate court has upheld, because the district court "is not flouting the mandate by acting on the motion" where "the appellate mandate relates to the record and issues then before the court, and does not purport to deal with later events"); DeWeerth v. Baldinger, 38 F.3d 1266, 1270 (2d Cir. 1994) (interpreting Standard Oil to stand for the proposition that "a district court may consider a Rule 60(b) motion when 'later events' arise that were not previously considered by the appellate court")."

CLICK HERE TO SEE ANDERSON'S JUNE 25, 2012 FILING

Many will argue that positive changes have come to the Manhattan legal ethics committee under First Department Presiding Justice Gonzalez and Chief Counsel Jorge Depico- both appointed after the Anderson scandal first went public. But long-standing questions remain unanswered: exactly how corrupt was the Manhattan attorney 'ethics' department,  why were serious ethics complaints involving  favored attorneys improperly whitewashed, and why hasn't any corrective action resulted. The widespread allegations of cover-up, favoritism and retaliation within and about Manhattan's 'ethics' oversight system were, in minute measure, secretly addressed, but public confidence in the legal ethics oversight body remains non-existent.

Endless Whitewashing

Attorney Anderson filed her federal lawsuit against The New York State Office of Court Administration on October 26, 2007, in The United States District Court for the Southern District of New York. The allegations by Christine Anderson, a respected insider, revealed a previously hidden look into systemic corruption within the statewide court system and, most horrifically, concerned the very body charged with overseeing ethics and integrity within the state's courts. The named defendants originally included The State of New York's Office of Court Administration (OCA), and the Hon. John Buckley, Thomas J. Cahill, Sherry K. Cohen, Catherine O'Hagen Wolfe and David Spokony- then all senior level state employees involved with the 1st Judicial Department's Departmental Disciplinary Committee (DDC), which is charged with overseeing the ethics of attorneys in The Bronx and Manhattan. The papers filed in federal court included, "Plaintiff requests the appointment of a federal monitor to oversee the day-to-day operations of the DDC for an indefinite period." Alan Friedberg, formerly the deputy counsel at the statewide Commission on Judicial Conduct (CJC), became Chief Counsel at the DDC until pushed out, and has since returned to the CJC. Mr. Friedberg has himself become a lighting rod for corruption allegations along with his former, and now-again, associate Robert Tembeckjian who runs the statewide judicial 'ethics' group as Chief Counsel.

An October 30, 2007 article in the New York Law Journal by Daniel Wise described Anderson's firing, "... in retaliation for complaining that her superiors had engaged in a 'pattern and practice of whitewashing and routinely dismissing complaints against certain select attorneys'" and noted that Christine C. Anderson had worked for the disciplinary committee for six years. The article revealed that Ms. Anderson asked that a federal monitor be appointed to oversee the disciplinary committee's operations, and explained that, "In 2005, Ms. Anderson charged in her complaint, she discovered that the chief counsel of the disciplinary committee, Thomas J. Cahill, and Sherry K. Cohen, its first deputy counsel, were "apparently engaged in a 'numbers game' and practice" of "selectively" dismissing complaints against attorneys for their "own personal and political reasons." Sherry Cohen, now in private practice specializing in ethics, was also accused of digging her nails into Anderson's hands- an admitted event that led to Cohen's attendance in an appropriate anger management type program. The New York Law Journal also reported that that the first 'whitewash' alleged by Anderson involved 'a highly sensitive investigation,' which had uncovered 'overwhelming concrete evidence of misconduct' by an attorney. Cohen made the complaint disappear despite the recommendation that a formal complaint be filed against the lawyer.  Anderson also claimed that a large ethics complaint file containing "indisputable evidence of misconduct" had been 'gutted.'" And another incident involving Sherry Cohen saw a complaint whitewashed because Cohen said, "she had a prior 'working relationship' with the attorney for the lawyer under investigation and sought to avoid having his client formally charged 'as a favor.'"

CLICK HERE TO SEE ANDERSON'S JUNE 25, 2012 FILING

Of Tilapia and Adjectives ... the Undervalued and the Overvalued

The Poor Tilapia

I love Tilapia, there I said it, I believe it is an undervalued and misunderstood fish. I am at heart a Tilapia advocate. To me, Tilapia is an inexpensive source of quality protein. In the line up of food choices I think it is pound for pound or dollar for dollar an overlooked bargain. I choose to defend the Tilapia because the truth is this:

1. Tilapia is farm raised as a product. In the wild, it is native to Africa but it can be raised on local farms for consumption. 75% of the Tilapia market comes from these farms, and is not part of the natural environment. For this reason some might put there nose up at this type of fish. I eat salmon as well but Tilapia has it's place.

2. Tilapia can be prepared within a diversity of tastes, styles, and flavors. This fish doesn't over power, it is a sharer. It co-exists peacefully among the other food groups. It is neutral like Switzerland. It will take on and accept just about any and every sauce. Talk about friendly, the Tilapia is the United Nation's answer to global peace. 


3. Tilapia is safe. There are those that are concerned that these farm raised are fed feces and other waste matter. First, Tilapia eat lots of stuff, they are omnivores, just because they eat lots of stuff does not make them bad. The key here is that much like many other things we eat (pigs, chickens, etc.) their fish bodies don't retain contaminants. They process waste into something useful. One of the marvels of nature. Even though raised unnaturally they process and grow perfectly.

So what does the Tilapia have to do with practicing law?

I have personal injury cases that are undervalued much like the Tilapia. People seen from the outside may display no signs or obvious symptoms of injury or disease. We are not supermen and women with X-ray vision. We merely judge what we can see, and what we cannot see stays hidden.

Value is always a Perspective. It is an opinion. Nothing more or less than that. My job is always to advocate for my client's position. I can bring their injuries, their damages, and most importantly the impact to lives into view. I bring out and demonstrate value by painting and illuminating perspectives. This may be accomplished through MRI findings, medical experts, health records, and police reports. And finally my client's story.

TAKEAWAY: The unseen needs to be made seen to bring full value to any case or situation. 


To the Overvalued ADJECTIVE


Well to balance out the undervalued Tilapia I place the much overvalued Adjective. People call me and launch into stories about what happened to them. Invariably they love to use descriptors. Words to describe can muddy the waters of the facts. Most commonly the police get a litany of words thrown upon them, many not very flattering.

The police were mean, nasty, belligerent, stupid, etc. etc. Sometimes stories are top heavy with emotional adjectives and lacking in content. The true substance of the story is based in fact. What I, most Judges, and people really want to know is what happened? What did you see or experience? What was said? Who said it?

To know if and where and when your rights were in  fact violated we need to remove adjectives. To see if you have valid defenses we need to cut to those most powerful FBCs.

THE FBCs (Facts Beyond Change)


Every case or situation has facts beyond change. Either it is or it isn't. If you ate or drank, what did you eat or drink? When did you eat or drink? An old TV show called Dragnet had a detective named Friday.

Police detective Friday when investigating a case loved to say, "just tell me the facts ma' am OR all we want are the facts." Facts are the most powerful part of any good story.


Can we tell the story, and eliminate all the adjectives? 


I think it is possible and helpful to first eliminate the fluff, in other words, the opinion about the facts. Clearly and succinctly we must give the who, what, where, and how. This elimination of adjectives is most appreciated by lawyers, and judges because it removes many of the polarized emotions that go along with victimization. They hurt me is an opinion, better is:

1. they placed the cuffs upon me
2. it left marks upon my wrists
3. I sought medical attention for the bruising
4. the doctors diagnosed a sprain/strain

They hurt me is now made real by the facts. Because to many people, they hurt me is so nebulous. How they did they hurt you? Where did they hurt you? It is the same for they violated my rights. How did they violate them? Where did they violate them? In the world of legal cases, the facts will make it or break it.

To be most effective, facts must have a chronology, and an order. This happened at this time, and then this happened after. Cause and effect is a principle and law that everyone can relate to.

So in closing, facts and Tilapia are of high value while emotionalized adjectives not so much.

Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Landau's Theft of Historical Documents Earns Time Behind Bars

A federal prison in Maryland.
Source: BOP

Historical documents thief Barry Landau was sentenced today to prison.  Landau pleaded guilty to his crime in February, admitting to stealing volumes of treasured documents from cultural institutions throughout the east coast and selling some for financial gain.

Prosecutors for the United States Attorney's Office filed a sentencing memorandum with the federal district court of Maryland (docket 1:11-cr-00415-CCB) today in support of their recommendation to incarcerate Landau.  He faced up to 15 years in prison.

According to a press statement issued by U.S. Attorney Rod J. Rosenstein, prosecutors asked for nine years. Judge Catherine Blake ordered seven followed by three years of supervision. She also restitution in the amount of $46,525 to make whole three dealers swindled by Landau.

Rosenstein accurately remarked that “[p]urchasers who innocently buy stolen property do not gain lawful title and are required to return it to the rightful owner. Anyone who has information about historical documents obtained from Barry Landau should contact the National Achives Archival Recovery Team at 800-786-2551.”

One of many institutions targeted by Landau was the University of Vermont.  In October 2011, authorities returned 67 historical papers to UVM that had been recovered.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Waiver of Appeal of Conviction is NOT Necessarily a Waiver of Appeal of Sentence

In a 5-2 decision, the Court of Appeals, in People v Maracle (2012 NY Slip Op 05121 [NY 6/27/12]), held that a waive of the right to appeal a conviction does not necessarily waive the right to appeal the sentence and that under the facts .The Court explained that

While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence. She seeks only the right to appeal the harshness of the sentence that went from one of probation to a maximum sentence of imprisonment on each count of the indictment because she failed to comply with a condition set by the court. The CPL makes clear the distinction between a conviction and a sentence. A "conviction" is defined as "the entry of a plea of guilty to, or verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument" (CPL 1.20 [13]). "Sentence" is defined as "the imposition and entry of a sentence upon conviction" (CPL 1.20 [14]). Both the "conviction" and the "sentence" comprise the "judgment," which is "completed by the imposition and entry of the sentence" (CPL 1.20 [15]). As such, although defendant waived her right to appeal the conviction, she never expressly waived her right to appeal the sentence. Unlike the situation in People v Hidalgo (91 NY2d 733 [1998]), it is not clear that "the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived her right to appeal without limitation." It is evident from the colloquy that the court, at most, apprised defendant that if she did not pay one half of the restitution by sentencing, there would be no promise as to her sentence and that she would not be able to withdraw her plea - something she is not seeking. There was no mention of defendant not being able to appeal the harshness of her sentence. The most critical error that occurred here, and the one that distinguishes this case from Hidalgo, is that during the plea colloquy in this case, the court did not explain that the appeal waiver would bar defendant from not only challenging the sentence she hoped to receive, i.e., five years probation, but also any sentence that the court would impose in the event defendant failed to meet the court's condition of paying $23,000 by the date of sentencing. It cannot be said that, at the time of her plea colloquy five months before the imposition of sentence, defendant knowingly and intelligently waived her right to appeal a sentence that, at that point, had not yet been declared by the court. In that respect, this case is more analogous to our holding in People v Johnson (14 NY3d 483 [2010]).

Promises, Promises ... The Basis of All Civilization

I love the song Promises Promises (1968) by Dionne Warwick

http://www.youtube.com/watch?v=DpKAnp5Klzw

The lyrics are so true to life:

Oh, promises, their kind of promises, can just destroy a life
Oh, promises, those kind of promises, take all the joy from life
Oh, promises, promises, my kind of promises
Can lead to joy and hope and love
Yes, love!!

I know the title of this blog may be a bit much but I believe it. All of us make promises (commitments) to ourselves and to others. Exchanges of promises between people are the basis of all contracts. Companies offer products and services within the marketplace with many unspoken guarantees (promises) of benefit. In a marriage contract this promise is called a Vow. No matter what you call it: vow, promise, commitment, if we are to fully function as a society of rules, conventions, and laws this is the base where it ALL begins.

My legal practice handles a wide range of matters over a pretty good chuck of territory. I do traffic violations, DWI, and personal injury cases fifty miles in all directions. My home base is Ithaca, NY, So I travel from Cortland to Steuben and from Broome to Seneca counties regularly. I even get out to Yates county but only during the warmer months, forget winter snow and ice at night on isolated, desolate country roads. I may be in transit when you call me. 

Communication is Everything

People call me, text me, fax me, and email me with requests, questions, and challenges.

The either want my representation, want a question answered, or want to argue with me about something I wrote or said or videoed... It can boggle your mind but I put myself out there and I do love to help people but it can wear on you at times when we do not have a meeting of the minds.

Contracts Require a Meeting of the Minds

Two people must be on the same page to have a contract, and form an agreement. If they both have different expectations then there is NO contract. Each side Promises something. It is the basis of all civilization. We all make and hopefully keep the promises that we make. It is a sign of integrity. 

As Dionne sings so well, Promises can lead to joy, hope, and love. Now think what is the opposite of broken promises? Commitments made, and then not kept feel terrible.

Engaging or Not Engaging a Lawyer to Represent You

Recently I had a Canadian driver contact me about a speeding ticket. I spoke with him, told him what I could do, what I would charge, and what he could expect.

I discussed ranges, fines, possible/reasonable outcomes, process, and my fees for this.

Then a flurry of 10 emails, all challenging me, how things work, and fantasy notions of Law and Order,

He then left me a message, you are fighting for me in Court tomorrow, right?

My response:

We do not have an agreement, we have been going back and forth via email,

you have certain notions about the process, ie. whether the police are showing up or not,

( I did a recent blog about this here: http://ithacadwi.blogspot.com/2012/06/if-cop-is-no-show-is-speeding-ticket.html  )

 and how your case will be dismissed because of that,

I believe that you have certain expectations that I can not promise to meet,

legally and ethically I cannot guarantee any result or outcome,

we have discussed this matter, I have given you the ranges and the potential

outcomes, I have told you what I can do and cannot do,

I can only promise to do my best nothing more than that, when you are ready to accept that

and have confidence in that then I will prepare a contract.

 You will sign it, return it, and then I will do my best to represent you 

and your interests

Promising A Specific Result

The Key concepts above are "that YOU CAN ACCEPT and HAVE CONFIDENCE IN" because if you do not have that with any professional you are doing business with then run away. Seriously, if you cannot accept what they say (promised) with confidence (this means with faith) then you should not engage them.

No lawyer can promise a certain result or a certain outcome. We can offer to do our best and nothing more. I ONLY promise that to my clients, I guarantee that I will care about them and achieve the best results based upon their unique set of circumstances.

 Lawrence (Larry) Newman, D.C., J.D.

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Dinosaur Forfeiture Complaint Now Published in New York Court as Coin Dealer Lawyers File Appearance to Free Arrested Mongolian Tyrannosaurus

Today the federal district court in the southern district of New York electronically published the federal government's forfeiture complaint against a dinosaur skeleton.  And an ancient coin dealers' attorney and lobbyist has filed an appearance as co-counsel on behalf of a claimant who wants the bones back.

Cultural property watchers are aware of the dinosaur's seizure last week when the federal government took legal action against a Tyrannosaurus bataar skeleton offered for sale at auction. The U.S. Attorney for the Southern District of New York filed a forfeiture complaint explaining that the dinosaur bones were illegally imported into this country on March 27, 2012 from Great Britain.  Federal prosecutors allege criminal wrongdoing in their complaint, writing in part:

Source: ICE

"The Customs Importation documents for the Defendant Property [Tyrannosaurus bataar] contain several misstatements. First, the country of origin for the Defendant Property was erroneously listed on the Customs Entry Form as Great Britain rather than Mongolia. Second, the Defendant Property was substantially undervalued in the Customs Importation documents. The importation documents list the value of the Defendant Property as $15,000 contrary to the $950,000 - $1,500,00 value listed in the Heritage Auctions May 20, 2012 Natural History Auction catalog and the actual auction sale price of $1,052,500. Third, the Defendant Property was incorrectly described in the Customs Importation documents as '2 large rough (unprepared) fossil reptile heads;' '6 boxes of broken fossil bones;' '3 rough (unprepared) fossil reptiles;' '1 fossil lizard;' '3 rough (unprepared) fossil reptiles;' and '1 fossil reptile skull.'

Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) assisted with the case. "As alleged, criminal smugglers misrepresented this fossil to customs officials when they illegally imported it into the United States," commented ICE Director John Morton in a press statement.  While authorities allege specific unlawful acts surrounding the Tyrannosaurus bataar's import, federal officials have thus far only arrested the dinosaur bones.

The U.S. Attorney's stated goal is to seize and forfeit the Tyrannosaurus bataar for repatriation to Mongolia.  Court records do not indicate that law enforcement sought a search warrant to seize the dinosaur for potential evidence as part of a criminal investigation.

The government's complaint lists "commercial paleontologist" Eric Prokopi as the consignor of the dinosaur bones.  Washington, DC based attorney Peter Tompa, who litigates and lobbies on behalf of the Ancient Coin Collectors Guild (ACCG), filed a court appearance today announcing his representation of Prokopi.  Tompa is co-counsel along with Brooklyn cultural property lawyer and ancient coin dealer advocate, Michael McCullough.  McCullough's LinkedIn profile lists him as past associate counsel at Sotheby's.  Experienced cultural property forfeiture prosecutor Sharon Cohen Levin is lead attorney for the government.

CONTACT: http://www.culturalheritagelawyer.com/
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

EED Charge Required Where Defendant "Snapped" and Inflicted 50+ wounds

In People v McKenzie (#133 decided 6/26/12) the Court held that, in determining whether to charge Extreme Emotional Disturbance in a homicide trial, "the relevant inquiry was whether the evidence, viewed most favorably to defendant, presented a triable question, we believe that the issue of the reasonableness of defendant's explanation should have been put to the jury."  I believe that, while this language is not the precise formulation I was hoping for when I argued McKenzie, that it does support an argument I made at a recent CLE.  Specifically, I think that if there is a valid line of reasoning and permissible inferences which would support a particular lesser, then the lesser must be charged - it's the same test as legal sufficiency for the prosecution.  Otherwise the jury is being limited as trier of fact, and that function is effectively shared with the trial court.

The Court of Appeals stressed that "a court is bound to view the evidence in the light most favorable to the defendant ... an exercise understood to be incompatible with weighing the evidence to resolve competing inferences" (citation omitted), "The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it".  "Reasonably supportive", to my mind, is the same test as for legal sufficiency.  The defense does not need to show that the jury should rule a certain way, or is likely to, merely that it would not be unreasonable or based solely on speculation.

The McKenzie decision is rooted in the EED statute: "the evidence would have permitted defendant's jury reasonably to conclude by a preponderance (Penal Law § 25.00 [2]) that, at the time of the homicide, he was affected by an extreme emotional disturbance, and that that disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it".  However, the phrase "reasonably to conclude" I think goes to all defense requests for lessers. 



An Appellate Division is not permitted to weigh the alternatives and find that the defendant's position is reasonable, but not reasonable enough.  "Although, it is true, as the Appellate Division evidently found, that the evidence in the aggregate would have permitted the jury to reject defendant's claim of emotional disturbance and loss of control, it was instead the viability of the alternative, contrary inference - that defendant in fact experienced an emotional break which caused him to 'snap' - that should have guided the trial court's determination of the charge request."  Neither the AD nor the trial court can weigh the facts: "A claim of extreme emotional disturbance must, of course, be credibly supported if the defense upon which it rests is to be submitted to the jury ... but that requirement was not intended to cast the trial court in the fact-finding role properly reserved to the jury" (citation omitted).  A trial court is only permitted to deny a charge based on "objectively discernible deficiencies."

Specifically regarding EED, the mental infirmity required is simply a loss of self control (perhaps a "profound" loss of self-control).  "The court denied the charge instead upon the ground that there was no proof that defendant had a 'mental infirmity that r[ose] short of a mental disease or defect.'  But the purpose of this quoted language, as it has been used in our decisions to describe the predicate for an extreme emotional disturbance defense, patently was not to tether the defense to proof of an underlying psychiatric disorder; 'mental infirmity' in the presently relevant context refers more broadly to any reasonably explicable emotional disturbance so extreme as to result in and become manifest as a profound loss of self- control." (citations omitted).  No psychiatric diagnosis is necessary ("it may be established without psychiatric evidence"), though one would obviously be relevant and helpful.  The court recognized that a conviction for either murder in the second degree or manslaughter in the first degree represented "highly punitive options".

There was concern at the Court of Appeals regarding the necessity of charging EED in all domestic dispute homicides, and this is something to keep in mind for the future (the court held that the reasonableness of the EED "might well be understood to pose a closer question").  The decision was unanimous, opinion by Chief Judge Lippman.