CPIA Cultural Property MoU with Guatemala Renewed and Expanded

Endangered Maya carved bone subject to import restrictions.  U.S. State Dept.

The U.S. government has renewed and expanded its bilateral agreement with Guatemala protecting jeopardized cultural heritage.  Friday's Federal Register reports that, after a review of the recommendations of the Cultural Property Advisory Committee (CPAC), the U.S. State Department's Assistant Secretary for Educational and Cultural Affairs "determined that the cultural heritage of Guatemala continues to be in jeopardy from pillage of certain archaeological objects and is also in jeopardy from pillage of certain ecclesiastical ethnological materials dating to the Conquest and Colonial Periods of Guatemala (c. A.D. 1524 to 1821)."   The decision by the State Department follows a public hearing held by CPAC in April.

The adopted import restrictions are authorized by the Cultural Property Implementation Act (CPIA) and are effective until September 29, 2017.  The Memorandum of Understanding (MoU) renews import controls on Pre-Columbian archaeological artifacts from Guatemala dating from 2000 B.C. to 1524 A.D.  Moreover, the bilateral agreement  has been broadened to include ecclesiastical objects from approximately 1524 to 1821 A.D.

The United States originally enacted emergency import protections in 1991 and 1994, covering Maya archaeology from Guatemala's Petén region.  The U.S. and Guatemala entered into a bilateral agreement in 1997 that covered pre-Columbian archaeological material. The countries later extended this MoU in 2002 and 2007.

Cultural objects covered by the bilateral agreement may legally pass through the American border when they have either an export permit or proof showing "that they left Guatemala prior to the effective date of the restriction: April 15, 1991, for archaeological material from Petén, and October 3, 1997, for archaeological material from throughout Guatemala," and September 29, 2012 for ecclesiastical material dating from the Conquest and Colonial Periods of Guatemala.

The 1973 Pre-Columbian Monumental or Architectural Sculpture or Murals Statute, meanwhile, also remains in effect.  That federal law forbids importation of designated Pre-Columbian cultural heritage into the U.S., except that monumental or architectural sculpture or murals may be imported when there is either an authorized export license or paperwork showing departure from the source nation before June 1, 1973.

Endangered cultural items protected by either CPIA import controls or the  Pre-Columbian Monumental or Architectural Sculpture or Murals Statute may be detained, seized, and forfeited by American authorities as contraband unless accompanied by an export permit or appropriate proof.  Criminal smugglers may also face potential prosecution.

It is best to speak with a cultural property attorney and/or seek a U.S. Customs ruling when importing cultural heritage from Guatemala.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Toledo Museum Sued for Non-Payment into Protective Services Officers' Pension Fund

The Toledo Museum of Art faces another legal challenge this year.  A lawsuit has been filed in federal court against the museum to recover employer contributions owed to a pension fund.

The plaintiff in the case of Central States Funds v. Toledo Museum of Art (12-cv-2780) says that an audit revealed that the museum failed to make contributions to an employee benefit plan on behalf of its protective services officers (PSO).  The complaint adds that the museum subcontracted PSO work in violation of its collective bargaining agreement.

The lawsuit will be heard in the United States District Court of Illinois, Northern District.

This case comes on the heels of a successful effort by federal prosecutors to have the Toledo Museum return an Etruscan kalpis to Italy, smuggled out of that country after being illegally unearthed.  The repatriation agreement of June 2012 was initiated by the U.S. Attorney's Office, Northern District of Ohio.  The museum purchased the pot in 1982 from art dealers Gianfranco and Ursula Becchina.  Convicted antiquities trafficker Giacomo Medici reportedly sold it to the Becchinas.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Arguments Made in Sotheby's Cambodian Statue Case on Motion to Dismiss

The federal district court in Manhattan yesterday heard arguments in the matter of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York.  The United States is seeking the forfeiture of the Duryodhana statue, claimed to have been removed illegally from the Prasat Chen Temple in Koh Ker, Cambodia.

Sotheby's attempted to sell the artifact last spring on behalf of the consignor, Ms. Ruspoli di Poggio Suasa.  But the U.S. government now seeks to repatriate the statue to Cambodia.

Yesterday's argument before Judge George B. Daniels was expected to address the claimants' motion to dismiss and the government's objection.  The court is anticipated to rule on the matter.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Hearing Scheduled in Antiquities Trafficking Case - U.S. v. Khouli et al.

Source: US District Court, Eastern District of New York

The U.S. District Court for the Eastern District of New York has scheduled an important hearing in the alleged antiquities trafficking case involving Joseph A. Lewis, II and Salem Alshdaifat, known as U.S. v. Khouli et al.

The evidentiary hearing will focus on the admissibility of the Alshdaifat's statements to law enforcement as well as the portions of the defendants' omnibus motions that have not been dismissed already.

A summary of the government's written arguments can be found here.  A summary of the defendants' written arguments can be found here: Part I and Part II.

The hearing will take place before Senior District Judge Edward R. Korman on November 19, 2012 at 11:30 a.m.

Lewis and Alshdaifat were charged by a federal grand jury in 2011.  They are presumed innocent unless the government proves guilt beyond a reasonable doubt.  Another defendant in the case, Mousa Khouli, pleaded guilty to charges in April.  A fourth alleged conspirator, Ayman Ramadan, remains a fugitive. 


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Court Denies Motion to Dismiss in Tyrannosaurus Bataar Forfeiture Case

"The motion [to dismiss] is denied as moot," wrote the Federal District Court for the Southern District of New York in the case of United States v. One Tyrannosaurus Bataar Skeleton.

Courtesy US Homeland Security

Claimant Eric Prokopi argued in his motion to dismiss that the Manhattan U.S. Attorney's seizure and subsequent attempt to forfeit assembled dinosaur bones should be stopped because the government failed to allege a proper claim.  The court, in response, raised questions about the forfeiture action, but gave permission to federal attorneys to cure any legal problems in a new verified complaint.

The U.S. Attorney filed a First Amended Complaint on September 21, 2012. That complaint has yet to be emailed to the court for publication in the public record. Based on the filing of the new complaint, nevertheless, the court yesterday struck down the claimant's request to dismiss the forfeiture case.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Ithaca Lawyer Uses the Coram Nobis (New York 440 Motion)

Lawyers love to throw around legal terms, especially latin. Sometimes we just toss out a number, "hey it's in the 710.30" (bill of particulars), or "I'll file a 30.30" (speedy trial), as if everyone should know (or not know) what we mean.

Ah, doctors and lawyers love Latin. Why? It (language) originally was all Latin based to keep the people (the common masses) in the dark. For that matter why was mass called mass? Authority and power resided in the Church, the Court, and the Medical community and they all used Latin. In fact, up until 1962 the Catholic Church held services (mass) in Latin.

So today I wanted to explore the real (pragmatic) use of a Coram Nobis Motion. The real term of art should be "Error Coram Nobis" or "the error before us." I think Coram and I think Coram, Long Island (like exit 64 off the LIE) but I transgress.

When can it be Used?

The Coram Nobis Motion or NYS 440 Motion is used when we believe that the guilty plea of a client in a prior case was entered in ERROR. Error because "maybe" they didn't know they could litigate (fight/defend) the charges, or they didn't know they could plea it down (negotiate) from a top charge or they were not represented by counsel (no lawyer). So "maybe" they did not: Voluntarily, Intelligently, and Knowingly enter a plea of guilt in the prior matter.

One example where I have successfully used a Coram Nobis was in cases where my client just plead guilty to traffic violation or drug (marijuana) charges NOT knowing the FULL CONSEQUENCES of that guilty plea.

Note: Remember that a judge (can decide to not grant the motion) or a prosecutor can argue against it.
There is no given to getting it, but in the situations that follow it is more commonly granted and not argued against by the District Attorney. In DWI cases (misdemeanor cases), you must show good (better) reasons to re-open a prior guilty plea.

If they plead to points or speeds they now might be facing a long driver's license suspension, or a loss of federal financial aid benefits (loans, grants, work study). One of the dangers to or of representing yourself, and not being counseled legally (at all) is not being fully aware. As I like to joke the mushroom in the dark knows nothing, sees nothing, and understands nothing.

Backwards in Time

Going backwards in time with the Coram Nobis literally re-opens the case. You can begin anew, to negotiate, to defend, and to go for a better outcome (result). In the interests of justice and fairness Courts do not like when people willy-nilly plead guilty without thought or consideration. These are the types of cases that are more easily re-opened.

NOTE: In DWI felony cases, where the prosecution must use a prior plea of guilt to a DWI or DWAI drugs (within 10 years) as the predicate enhancement offense, a prior refusal case must be scrutinized thoroughly.  A prior guilty plea to the common law (VTL 1192 (3)) DWI should be carefully evaluated for strength of defenses at the time of the matter. Whether a 440 (Coram Nobis) would be a proper/appropriate/cost effective/successful move must at least be given consideration. Would re-opening that prior DWI case be fruitful? Could it be successful? Much could be written just on this topic alone so I will save that for another day as they say.

The 440, Coram Nobis Motion is just another tool in the lawyer toolbox, just another way to achieve justice, or fairness in a longer, much more complicated process. Glad to have it, glad to use it, and happy when it works out.

Larry Newman, D.C., Esq.

504 North Aurora Street
Ithaca, NY 14850
607-229-5184
newman.lawrence@gmail.com

http://www.ithacadwi.com

Young, Gifted and Neglected

Every motivated, high-potential young American deserves a similar opportunity. But the majority of very smart kids lack the wherewithal to enroll in rigorous private schools. They depend on public education to prepare them for life. Yet that system is failing to create enough opportunities for hundreds of thousands of these high-potential girls and boys.  Read more ...

Ivory Smuggler Pleads Guilty in US v. Gordon

Federal prosecutors in the eastern district of New York last week secured a conviction in the case of United States v. Victor Gordon.  Gordon entered a plea of guilty on September 18 to a substituted charge of smuggling elephant ivory under the African Elephant Conservation Act 16 USC 4223 et seq.

A federal grand jury indicted the Philadelphia art dealer in July 2011, charging him with conspiracy to smuggle elephant ivory, four counts of smuggling, and five Lacey Act violations. See here for further background.

The plea agreement calls for the uncontested forfeiture of hundreds of ivory tusks, ivory carvings, and at least $150,000 in cash.

Darren LaVerne handled the plea hearing for the prosecution.  Sentencing is scheduled for April 23, 2013.  [UPDATE: The court date has been changed to August 2013].

Photos courtesy of USFWS.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

New Complaint Filed in Dinosaur Forfeiture Case

The United State Attorney in Manhattan submitted a newly amended complaint on Friday in the forfeiture case of United States v. One Tyrannosaurus Bataar Skeleton.  The complaint was filed in response to questions raised by the southern district of New York federal court.  It has not been published by the court as of this writing.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

MoU with Mali Extended

Djenne figure.  US State Dept.

The United States yesterday renewed the extension of import restrictions covering archaeological material from Mali.  Click here for a description of the rule.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Cultural Property Cases Roundup - Khouli et al., Sandstone Cambodian Sculpture, Weiss, and ACCG Appeal [UPDATED]

September is a busy month for cultural property law cases.  More activity is expected in the case of United States v. Mask of Ka Nefer Nefer soon, a case that involves the U.S. government's attempt to forfeit a mummy mask from the St. Louis Art Museum and repatriate it to Egypt.   [UPDATE 9/25/12: The 8th circuit has lately granted an order permitting the government to file its brief in the case on October 26 rather than in September].  Thus far there has been activity in four other important cases.

The case of U.S. v. Khouli et al. saw the submission of legal memoranda by defendants Joseph Lewis, II and Salem Alshdaifat urging the court to dismiss the criminal charges against them.  A grand jury alleges that the pair had roles in trafficking antiquities.  Lewis and Alshdaifait vigorously deny the charges.  A third co-defendant, Mousa Khouli pleaded guilty in April 2012.

On September 18, 2012 the eastern federal district court in New York ruled on Lewis' arguments.  Judge Edward R. Korman denied the Motion to Dismiss but the omnibus motions remain.  The court on September 10, meanwhile, granted Alshdaifat's request to travel to England to meet with overseas business partners and to attend the Coinex London 2012 numismatics show.  The prosecution objected to the request.  According to Alshdaifat's lawyer in a September 5 letter to the court, Alshdaifat "has a joint venture with a business in London, called Roma Numismatics."  It appears, however, that the joint venture is actually Athena Numismatics Ltd., which is listed on VCoins.

In the southern district New York federal court, Sotheby's and Ms. Ruspoli di Poggio Suausa filed a reply memorandum on September 17 to bolster their June 5, 2012 motion arguing that the government cannot forfeit a statute in the case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's.  The claimants' reply brief was filed in response to the government's pleading submitted last month.

New York state court, meanwhile, scheduled the case against Arnold Peter Weiss for sentencing on September 17.  Weiss pleaded guilty in July to attempted criminal possession of stolen property in the fourth degree.  Terms of his sentence, pursuant to the plea agreement, are outlined here.  As part of the sentence, Weiss published an essay titled "Caveat Emptor: A Guide to Responsible Coin Collecting" in American Numismatic Society Magazine.

In Virginia, oral argument in the fourth circuit court of appeals took place on September 19 before judges J. Harvie Wilkinson, III, Stephanie D. Thacker and Michael F. Urbanski in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs.  The ACCG appealed their August 2011 loss in the lower federal district court in Baltimore.  The organization submitted its written arguments in October 2011, and the federal government replied in January 2012.

The attorneys' oral arguments in the ACCG case can be heard in their entirety here.  In sum, Judge Wilkinson appeared unwilling to involve the judiciary in foreign affairs decisions of the executive branch, which can be overseen by the legislative branch. He had apparent trouble finding that  the U.S. State Department acted arbitrarily or capriciously when implementing import controls over ancient coins under the Cultural Property Implementation Act (CPIA). "Why should we jump into this and make it a tri-cornered mess," asked the court in its apprehension of being drawn into a matter that involves the two other branches of government.

The court appeared to believe that there is a "slight burden" placed on the importer--not on the government--to show where ancient Chinese and Cypriot coins have been in the past few years; the inquiry is not where the coins have traveled in ancient times. And this burden, which is "not a huge hurdle to surmount,"should be placed on importers because importers have the most knowledge.

[Hat tip to Nathan Elkins for highlighting the Weiss article in ANS Magazine].


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

A Better Way To Pick New York Judges

LINK

Fix the state's broken judicial conventions

 

Just when New Yorkers may have thought that the selection process for determining who will run for office in November was over, please note: Political primaries may be over, but more is yet to come.

Critically important decisions will soon be made about who gets to appear on the ballot as judicial candidates for vacancies on the state Supreme Court, a vitally important court which hears significant civil cases, divorce, separation and annulment proceedings, and New York City criminal prosecutions of felonies.

How do the powers that be decide who may run for judge? The process isn’t pretty. It’s politics in the worst sense of the word.

According to our election law, political parties have the right to choose who will be designated as their standard bearers for these vacancies on the bench at their conventions. And so, from Sept. 18 through Sept. 24, they’ll do just this. This year, there are scores of Supreme Court vacancies all across the state and a dozen in New York City alone. And that doesn’t take into account judges whose 14-year terms are expiring.

So what do the conventions feel like? Are they open affairs where voters can witness ideas being presented and decisions being made? If only.

Unlike the recent, prime-time national party conventions, New York’s judicial conventions are opaque, brief and dominated by local county party leaders. And because in many judicial districts (including in most of New York City) one political party dominates, whoever is nominated is likely to be the only choice voters have in November.

Over and over again, the public gets shut out. Insiders rule. Merit takes a backseat. And connections get rewarded.

Under existing law, county political parties could initiate reforms of the system now. They could make the judicial convention system more transparent, democratic and focused on merit.

And some have taken steps in the right direction. But most have not, and delegates at those conventions too often act as rubber stamps for leaders who place cronies and relatives on the ballot.

This is terrible news for the thousands of people who find themselves at the receiving end of justice administered by judges hand-picked by leaders whose primary concern is maintaining their own political power.

Eventually, we need an appointive system — which would use a qualification commission to determine the best judicial candidates. That’s the type of system voters approved many years ago for the selection of judges for New York’s highest court, the Court of Appeals. However, this change — amending the state Constitution — would require a very lengthy process.

We cannot afford to wait for reform.

The state Legislature should provide New Yorkers with a better system of nominating candidates now. This would entail amending the election law to provide for the establishment in each judicial district of an independent judicial qualification commission, which would evaluate the qualifications of Supreme Court candidates and recommend a limited number of most qualified candidates for each vacancy, to be considered by delegates to the judicial conventions.

In addition, because delegates should actually make decisions independent of their county leader, the Legislature should:

l set the date of the elections of judicial delegates long before the date of the conventions, to allow for legitimate public scrutiny;

l reduce the number of signatures required on delegate designating petitions to encourage independent citizens to run; and

l give delegates the opportunity to hear each candidate address the conventions, to begin transforming an insider game into one that values merit more.

If we are to going to continue to elect justices to the New York’s most important courts, this is the least we can do.

Williams is chairman of the Fund and Committee for Modern Courts, a nonpartisan statewide organization.

Read more: http://www.nydailynews.com/opinion/a-better-pick-new-york-judges-article-1.1162436#ixzz26yVKoHSC

How I went from Mis-Alignments to Mis-demeanors

Chiropractor to Lawyer

State Controller Tom DiNapoli Ducks Responsibility in Vito Lopez Sexual Harassment Settlement Which Makes Him Sound Negligent About the Spending of Public Funds

NEW YORK DAILY NEWS

FRIDAY, SEPTEMBER 14, 2012, 4:05 AM

LINK

State Controller Tom DiNapoli’s website declares him “responsible for ensuring that the taxpayers’ money is being used effectively and efficiently to promote the common good.”

How well did he fulfill the mission in the matter of the secret sexual harassment settlement that has embroiled Assembly Speaker Sheldon Silver and Assemblyman Vito Lopez? 

Documents newly released under the Freedom of Information Law reveal that:

 l Bill Collins, attorney for Silver, discussed the situation with DiNapoli’s chief counsel, Nancy Groenwegen, months before it was finalized.

l Collins emailed Groenwegen multiple drafts of the settlement — including names, dollar amounts and confidentiality clauses — that she says she forwarded to attorneys on her staff.

l One of those lawyers did a legal analysis of the deal and proposed changes that were incorporated in later drafts.

l A copy of the final, signed settlement was delivered to Groenwegen before the controller cut a $103,080 check on June 13

.

Nowhere in these documents does anyone express the slightest concern that Lopez’s alleged mistreatment of female employees is being kept secret from the people who are footing the bill.

Welcome to the go-along-to-get-along political culture that spawned DiNapoli, who was a longtime member of the Assembly before his colleagues appointed him controller on the departure of Alan Hevesi.

As for DiNapoli’s personal role, his office insists his underlings kept him in the dark even as they engaged in consultations with Silver’s staff about a confidential settlement that was designed to shield Lopez’s misdeeds from discovery.

Here, then, are the questions: Which would be worse, that DiNapoli was ignorant, as he states, or that he was complicit, as he denies? And does it make any difference at all?

The secret $103,000 settlement given to two former staffers who accused Assemblyman Vito Lopez of sexual harassment included a penalty of $20k or more if anyone involved talked about its details 

The $20k fine, which could be increased by an arbitrator, was four times the amount that was initially discussed

LINK

BY GLENN BLAIN AND KENNETH LOVETT / NEW YORK DAILY NEWS

WEDNESDAY, SEPTEMBER 12, 2012, 4:31 PM

JOE MARINO/FOR NEW YORK DAILY NEWS

Former Vito Lopez staffer Leah Hebert, 29, was one of two women who got a $103,000 taxpayer-funded settlement over allegations of sexual harassment. It included strict financial penalties if either woman talked about any aspect of the deal, even its very existence.

 ALBANY — The first two women to accuse Assemblyman Vito Lopez of sexual harassment have 20,000 reasons to keep quiet about it.

The secret $103,000 settlement former staffers Rita Pasarell, 30, and Leah Hebert, 29, reached with the state Assembly featured a provision for a fine of $20,000 if they, Lopez or anyone else involved in the negotiations went public about the agreement or the allegations that led to it. Further, the deal included a stipulation for an arbitrator to award damages in excess of the base fine.

The $20,000 penalty was four times what had been considered in an initial draft agreement, and nearly matches the $20,262 payout Hebert, Lopez’s former chief of staff, received. Pasarell, formerly the Brooklyn Democrat’s deputy chief of staff, was awarded $60,786 because, according to emails pertaining to the settlement that were released Wednesday, she had allegedly been subjected to “much more egregious harassment, and over a longer period of time.”

Terms of the final deal were included in a batch of emails made public by the state controller’s office under a Freedom of Information law request submitted by the Daily News. The deal says those involved can only discuss the matter in response to a court order, subpoena or as part of required disclosures to financial or tax advisers.

The emails released Wednesday revealed the office of state Controller Thomas DiNapoli, which had to sign off on the taxpayer-funded deal, was far more involved in the talks than it has let on.

As the Lopez scandal has widened since it broke late last month, DiNapoli has argued his office just cut the settlement check. But emails show staffers in his office pushed for specific changes to be made to language in parts of the settlement that pertained to the payouts and related tax issues. Aides to DiNapoli expressed serious questions about possible tax liabilities and suggested at one point that the controller’s office be given pre-audit authority over the agreement.

Yet William Collins, a lawyer for Assembly Speaker Sheldon Silver, wrote in an Aug. 31 email to Silver chief counsel Jim Yates that DiNapoli’s office ultimately never saw or asked for the final agreement — despite its earlier insistence on pre-audit approval.

Silver has come under fire for approving the deal and for not reporting the allegations to the Assembly Ethics Committee. Sources told The News that Silver has hired a private lawyer as dual investigations look into the settlement.

klovett@nydailynews.com

A NEW JERSEY Legal language Lesson

I've practiced in the Garden State but left for the beauty and tranquility of the Finger Lakes. NJ still has a place in my heart so I deal with a lot of jerseyites (my wife included), they have that jersey twange.

New Jersey language can be confusing. We have all seen Jersey Shore so we know this is true.
Going Fishing = going out to pick up women, fist pumping, GTL (gym, tan, laundry), you get the picture, confusing. So NJ legal language is also a bit, how can I say, "different."

Jersey Lawyers don't use the terms "misdemeanors and felonies." In NYS, we do, but not across the bridge. In Jersey legal speak there are "criminal" offenses based on and named in degrees (1st to 4th).

Jersey "Crimes" have the potential of jail for more than six months.
Jersey  "non-criminal" offenses are less than six months in jail.

The "lesser offenses" in NJ are all the NON criminal offenses: motor vehicle ie. the traffic offenses, disorderly persons offenses, and lastly municipal ordinance violations (ie. noise, dogs).

NJ loitering is a lesser offense, so it is NON criminal.
NJ DUI is a lesser offense as well, so it is not criminal.

DUI is in the category of "Lesser Charges" in NJ.
It is prosecuted in Municipal Court.
You get no jury trial, only a bench trial.
It is listed in the traffic offense section of NJ statutes. 


New Jersey "Traffic" Laws - Title 39
39:4-50. Driving While Intoxicated


Lawrence Newman, D.C., Esq.

http://www.Ithacadwi.com

Paul Gentile Quits Bronx Bar Association In Opposition To Michael Marinaccio

Bar’ brawl: Former Bronx DA blasts law group’s new prez over ‘mob ties’

By DOUGLAS MONTERO, MITCHEL MADDUX and LEONARD GREENE

Last Updated: 1:03 AM, September 18, 2012

Posted: 12:48 AM, September 18, 2012

LINK

A former Bronx district attorney revived a 25-year-old feud yesterday by resigning from the borough’s Bar Association to protest the rise to president of a rival he accused of having mob ties.

In a fiery letter to Bronx Bar Association members, Paul Gentile says he wants out of the legal group as long his political enemy, Michael Marinaccio, remains in charge.

 

Gentile served as Bronx DA for 18 months between 1987 and 1988, then butted heads with Marinaccio during a bitter election fight against Marinaccio’s law partner, Philip Foglia.

N.Y. POST: SPENCER A. BURNETT

LEGAL FIGHT:Former DA Paul Gentile has quit the Bronx Bar Association over old foe Michael Marinaccio’s (above) rise to president.

ROBERT KALFUS

LEGAL FIGHT: Former DA Paul Gentile (above) has quit the Bronx Bar Association over old foe Michael Marinaccio’s rise to president.

Gentile, 69, said then — and maintains to this day — that Foglia and Marinaccio have ties to the Genovese crime family, and that Marinaccio’s ascension to president of the Bronx bar is a stain on the organization.

 

“Foglia’s partner and close friend, Michael Marinaccio, did everything that he could do to deliver the office of the Bronx District Attorney to the mob,” Gentile claimed in the letter.

“Having failed at that effort, Michael Marinaccio now seeks to deliver to the Genovese crime family the office of President of the Bronx Bar Association.”

 

Gentile claims wiretaps from then-Manhattan DA Robert Morgentheau’s office revealed that Foglia’s campaign was being underwritten by the Genovese family.

 

Later, Marinaccio, 60, served as a defense attorney for Genovese boss Vincent “The Chin” Gigante.

But Marinaccio, who threatened to sue Gentile for slander, said his old nemesis is just using an old grudge to sabotage his tenure as president. Marinaccio took over the bar’s top post in July and is scheduled to be formally installed Thursday.

“This is not a popular uprising,” Marinaccio told The Post. “This is a bitter man. What he’s doing is an effort to embarrass me, my family and this organization with baseless charges that have been debunked before.”

Gentile was appointed DA by then-Gov. Mario Cuomo after DA Mario Merola died in 1987.

It was during Gentile’s heated campaign for a full term that he dropped the bombshell on Foglia that FBI wiretaps had linked Foglia, a former Bronx prosecutor, to organized crime figures.

But Gentile beat the mob-ties drum so loudly that it eventually led to his own downfall.

Cuomo and then-US Attorney Rudy Giuliani put pressure on Gentile to step down for using FBI reports for political purposes.

Gentile did not quit his post, but dropped out of the race, admitting he was “a terrible politician.”

The race was eventually won by Robert Johnson, who is still the Bronx DA.

During the contentious primary fight, Giuliani defended Foglia against charges that he leaked confidential information to the mob.

A year later, Foglia joined Giuliani on campaign stops during his first run for mayor.

Foglia and Giuliani did not immediately return calls for comment. Marinaccio said he and Foglia are no longer law partners but remain friends.

Read more: http://www.nypost.com/p/news/local/bronx/bar_brawl_jj1Jt1HUJQ6GjcOOidHbOP#ixzz26rtD7YZE

Sentencing in New York - A Primer

by
Jill Paperno,
Special Assistant Monroe County Public Defender and
author of Representing the Accused: a Practical Guide to Criminal Defense (See)

This post is aimed at reviewing some basics of felony sentencing that those who don't handle it on a regular basis may not be familiar with yet.  First, most sentencing information can be found in Article 70  of the Penal Law, but it is dense and confusing, and even those who have practiced for years have trouble understanding it.  If you have questions about a sentencing matter, as with anything, talk to more senior attorneys.  The following rules are general - there are exceptions, and if you look at the statutes, there are many specific sentences for specific charges, so it's getting impossible to memorize the sentencing schemes the way attorneys could many years ago. 

There are three types of sentences involving straight (not intermittent) incarceration.  They are definite sentences, indeterminate sentences and determinate sentences. 

Definite sentences 
Definite sentences are sentences of one year or less, and they are served in local (instead of state) facilities.  They can run concurrently or consecutively with other sentences, although if they run with probation sentences and exceed the amount of time one can spend in jail while on probation they may void the probation part.  But that's a memo for another day.  They can be imposed for violations that permit jail time sentences, misdemeanors, and felonies for defendants who do not have "predicate" felonies (see below) and are convicted of felonies that do not require state prison 

A definite sentence is reduced by one third if a client does not lose good time while incarcerated (doesn't get into trouble in jail).  Definite sentences may be part of probation sentences (shock probation) and run at the same time as probation sentences.  The maximum definite sentence a person can serve on a misdemeanor while serving probation is 60 days, and the max on a felony is 6 months.   

Definite sentences can run consecutively.  Once a person has several consecutive definite sentences the time they spend in jail caps out at 2 years.  In other words, if they get three years consecutive on definite sentences they serve 2/3, or two years.  If they get four years it still caps at two years.  (I decided not to add statutory references because it would take me too long to write this but if anyone else wants to that would be awesome.) 

Definite sentences are not followed by post-incarceration supervision, such as parole or post-release supervision.  (By the way, probation is a sentence of supervision in the community that is in lieu of jail; parole and post-release supervision are sentences that follow a sentence of incarceration except when the sentence is directly to parole as a Willard sentence.) 

Indeterminate sentences 
Indeterminate sentences are imposed on two types of felonies - non-violent felonies and really bad felonies. 

An indeterminate sentence is a sentence that has a minimum and a maximum.  The minimum is the time a defendant must serve before s/he is eligible for parole.  It's not a guarantee of release - it's just the first time a defendant sees the Parole Board. Indeterminate sentences are served in state prison. 

Non-VFO Indeterminates 
If a client receives an indeterminate sentence such as 1-3, the client sees the Board after 1 year (but if there was jail time served prior to sentencing the 1 year is reduced by that time).  If a person is released after seeing the Parole Board they are released to parole, a form of supervision.  Jail time credit also reduces the maximum on an indeterminate. 

On an indeterminate sentence where there is a number for the max - like the "3" in the example - the defendant has to serve 2/3 before s/he is eligible for conditional release.  That means if the defendant has not lost good time in prison ( not lost time based on misbehavior) s/he can be released after 2/3 of the sentence to conditional discharge.  But be aware, in DWI and sex offense cases, the conditions are so onerous that a person may not get released at that time.  If a person is released at the conditional release date ("CR") s/he is released to a form of parole supervision, conditional release.  This is called being - you guessed it - "CR'd". 

If a person does not get released until the maximum date - the "3" in the prior example, that is called being "maxxed" (sp?) or "maxxing out" (sp?).  If you max, you are not on supervision afterwards. 

VFO, Drug, Sex Offense or Persistent Indeterminates 
If a client is convicted of an A felony (murder, certain sex offenses or drug offenses) or convicted as a persistent offender the indeterminate sentence still has a minimum and a maximum, but the maximum is life.  That means that a defendant must serve the minimum before being eligible for parole, and then can see the Parole Board.  As with other indeterminate sentences, if the defendant is not released at the first parole board meeting, they can return every two years or so - but that doesn't guarantee release.  In the case of a life sentence, the defendant may never be released by the parole board.   

The minimum time on indeterminate sentences can be reduced in some cases by participation in programming, but it is unlikely that will happen with a minimum of less than 3 years, since the programs take a while to get into and complete. 

Determinate Sentences 

Determinate sentences are sentences imposed for violent felonies.  They are periods of incarceration in state prison.  They include a single number that represents the time a person will spend in prison, and another number that represents a period of post release supervision.  Post release supervision is another word for parole (created after New York politicians claimed they were eliminating parole for violent offenders, if memory serves).  So the sentence may be described as something like "5 determinate, 2 1/2 post release supervision".   On a determinate sentence a defendant has to serve 6/7 of the time before s/he can be released.  Long story about what happens to that other 1/7.  If a person on a determinate sentence is released s/he will then be under post release supervision,. 

With non-VFO determinate sentences (drug cases), a defendant may be able to participate in programs to reduce the sentence another 1/7. 

Determinate sentences were enacted, again if memory serves - and it does less and less these days -  in 1998, so sentences prior to that time for VFOs were indeterminate, with minimums being half of the maxes.   

Predicate Felonies 

If a person has a prior felony conviction, that will affect the type of sentence they can receive on a new felony.  There are many issues relating to prior felonies in determining whether they constitute "predicate" felonies for sentencing purposes  - including whether the priors are actually felonies, whether there were legal issues at the time that prevent them from qualifying as predicates, and most importantly, when they occurred. Youthful Offender adjudications do not count as prior felonies.   A felony does not count as a predicate felony (except for persistent felonies and persistent violent - another memo for another day - phew - lots to do) unless the conviction was within ten years of the current offense.  So the easy example is if a person has a felony in 2005, and picks up a new charge today - clearly within the ten years.  If the prior constitutes a felony in NY and meets other statutory criteria, and was not a YO, the person is a predicate for sentencing purposes.  But what about if the felony was in 1998?  Can that qualify as a predicate?  Depends.  If the person spent time in prison or in jail - basically time incarcerated - between 1998 and now, and that time prevented the defendant from having ten years of "street time", then the person is a predicate.  In other words, if the 1998 conviction resulted in a 5-15 year sentence, and the defendant wasn't released until 2003, then that person hasn't had 10 years of street time and is a predicate felon for sentencing purposes. 

If a defendant has a prior felony, it does not affect the time they can spend on a definite sentence. 

If a defendant has a prior felony and a new non-VFO, on a conviction for the new felony, the sentence must be an indeterminate sentence.  The amount of time depends on what level felony the new charge is. 

If a defendant has a prior felony conviction and a new VFO, on a conviction for the new charge the sentence must be a determinate sentence with a period of post release.  The amount of time depends on whether the prior was a VFO or non-VFO, and the level of the new charge. 

A word about Jail Time Credit and Concurrent/Consecutive Sentences 

Once a person starts serving a sentence, they no longer accrue jail time credit toward their other charges.  If a sentence is imposed concurrently to another sentence, but the other sentence has concluded, the full sentence will have to be served.  These are often concepts that attorneys are not familiar with, and sometimes cause us to tell clients they will be serving less time than they actually wind up serving.  Please feel free to talk to more experienced attorneys when you're trying to work out dispositions that may be affected by other pending charges or sentences that have already been imposed.  The jail records office at the Monroe County Jail, and the New York State Department of Corrections Office of Sentencing Review is also helpful in figuring out what a negotiated sentence will actually mean to your clients.