Important New Decisions - November 11, 2011

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.


Party Who Accepts Benefits of Separation Agreement for Considerable Period of Time Deemed to Have Ratified it but Party Who Receives Virtually No Benefits from Agreement Cannot Be Said to Have Ratified It.

In Kessler v Kessler, --- N.Y.S.2d ----, 2011 WL 5241275 (N.Y.A.D. 2 Dept.) on June 10, 1980, after 25 years of marriage, the parties entered into a separation agreement, which provided that the plaintiff husband would make payments to the defendant wife for her support and maintenance and for the mortgage and carrying costs relating to the marital residence, where the defendant continued to reside. The plaintiff complied with the terms of the separation agreement and, in 2009, he commenced this action for a conversion divorce. In response to the plaintiff's motion for summary judgment, the defendant submitted an affidavit asserting that the plaintiff had procured the separation agreement through fraud and duress, and that the agreement was unconscionable. The defendant alleged that the plaintiff had concealed from her
his vast wealth, and had induced her to enter into the separation agreement at a time when, unbeknownst to her, New York's equitable distribution law was about to be enacted. The Supreme Court granted the plaintiff's motion for summary judgment, and subsequently entered a judgment of divorce directed the parties to comply with the terms of the separation agreement which was incorporated, but not merged into, the judgment of divorce. The Appellate Division affirmed. It held that a party who accepts the benefits provided under a separation agreement for any considerable period of time is deemed to have ratified the agreement and, thus, relinquishes the right to challenge that agreement. By contrast, when a party received virtually no benefits from the agreement, he or she cannot be said to have ratified it. Assuming the truth of the allegations set forth in the defendant's affidavit, the benefits she received pursuant to the separation agreement were far less than those she likely would have received had there been an equitable distribution of the assets accumulated during the marriage. The record, however, did not support a finding that the defendant received "virtually no benefits" from the agreement. Moreover, while a spouse will not necessarily be held to have ratified an agreement if it is found to be the product of duress and overreaching, the disadvantage to the defendant created by the alleged fraud and duress in this case could not be deemed to have persisted throughout the 29-year period during which the defendant accepted the benefits of the separation agreement without challenging it. Thus, the plaintiff made a prima facie showing that the defendant ratified the separation agreement. In opposition, the defendant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment.


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 had 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.



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.

Fourth Department - In SORA Hearing, Addition of Points Sua Sponte Violates Due Process

While the remedy was merely remand for a new hearing, this decision could prove important if it stops a court from assessing points at the SORA hearing. It's also an important reminder that SORA is a contested process where the People bear the burden.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1236 KA 11-00285

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V
PATRICK HACKETT, DEFENDANT-APPELLANT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM OF COUNSEL), FOR RESPONDENT.

Appeal from an order of the Cattaraugus County Court (Larry M. Himelein, J.), dated January 25, 2010. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Cattaraugus County Court for further proceedings in accordance with the following Memorandum: On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.), defendant contends that County Court miscalculated his total risk factor score in the risk assessment instrument (RAI), and thus mistakenly determined that he was presumptively a level three risk based on that score. We agree with defendant. In fact, pursuant to the correct total risk factor score in the RAI, defendant is presumptively classified as a level two risk. We note, however, that the court also sua sponte assessed additional points under risk factor 3 (Number of Victims) and risk factor 4 (Duration of Offense Conduct with Victim) in the RAI, which then rendered defendant a presumptive level three risk. We further agree with defendant that the court violated his due process rights by sua sponte assessing those additional points. The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment (see § 168-n [3]; People v David W., 95 NY2d 130, 136-140). Here, neither risk factor was originally selected on the RAI or raised by the People at the SORA hearing, and defendant learned of the assessment of the additional points for the first time when the court issued its decision (cf. People v Wheeler, 59 AD3d 1007, lv denied 12 NY3d 711). We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law §168-n (3) and defendant’s due process rights.

Decided November 10, 2011

PART II OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Case Reveals Italy’s Refusal to Turn Painting Over to Gentili di Giuseppe Family



Portrait of Girolamo Romano,
painter of the disputed artwork known as
Cristo Portacroce Trascinato Da Un Mangoldo.

In support of the warrant seizing Christ Carrying the Cross Dragged by a Rogue (Cristo Portacroce Trascinato Da Un Manigoldo) from The Mary Brogan Museum of Art and Science and in support of the civil complaint seeking forfeiture, the US Attorney for the Northern District of Florida supplies important details about the artwork’s asserted history.  Homeland Security Investigations (HSI) agent Phillip Reynolds describes facts in an affidavit submitted to the federal district court that permits the construction of the following timeline and details:

June 1914 - Art collector Federico Gentili di Giuseppe, Italian and of Jewish descent and living in Paris, purchased the Cristo Portacroce from the Crespi family collection. The 16th century painting by artist Girolamo Romano, was lawfully exported from Italy.

April 20, 1940 - Just before the Nazi invasion of France, Federico Gentili di Giuseppe died and left his estate to his son and daughter. They fled Paris without their possessions.

March 17, 1941 - The French Vichy government ordered the liquidation of the entire Gentili di Giuseppe estate.

April 23, 1941 - The Cristo Portacroce, and dozens of other paintings once in the Gentili di Giuseppe family’s possession, were auctioned. “Lemar” of Paris reportedly bought the Cristo Portacroce.

1994 - A Girolamo Romani catalog raisonné published by Alessandro Nova listed the Cristo Portacroce as having been owned by Federico Gentili di Giuseppe.

1997 – Descendants of Federico Gentili di Giuseppe sued the Louvre for the return of five paintings sold during the same auction as the Cristo Portacroce.

1998 - The Brera Art Gallery (Pinacoteca di Brera) took possession of the painting, although no details are provided regarding this transfer.

June 2, 1999 – a French court ordered custody of the five paintings at the Louvre to Federico Gentili di Giuseppe’s descendants, acknowledging that the 1941 auction was a “nullity” in that several painting were purchased by Nazis, including Luftwaffe chief Hermann Göring. The court also ordered the Louvre to pay 40,000 francs (approximately $8300).

After June 2, 1999 – The Art Institute of Chicago, the Boston Museum of Fine Arts, and the Art Museum of Princeton University all returned works of art to the Gentili di Giuseppe family heirs. Institutions in Berlin, Cologne, and Lyons did the same.

January 10, 2000 and March 14, 2000 – Lawyer Jean Pierre Sulzer twice contacted the the Brera Art Gallery by mail on behalf of Gentili di Giuseppe’s descendants, receiving no reply.

2001 – The Brera Art Gallery referred the restitution claims of the Gentili di Giuseppe heirs to the Italian Ministry of Culture, and attorneys for the family wrote a letter to the ministry on October 3, 2001 asking for the painting.

June 6, 2002 – The Commission for Art Recovery of the World Jewish Congress, a New York based group that seeks to restitute cultural property taken from Holocaust victims, wrote a letter to Italian President Silvio Berlusconi after the Ministry of Culture reportedly rejected the claims of the Gentili di Giuseppe family. The letter urged the president to reconsider Italy’s position.  (The contents of the letter suggest that the Brera made an earlier reply stating that it acquired the painting--and a second painting--in good faith.  The Brera's letter is not contained in court documents).

March 14, 2003 – The Italian Ministry of Culture responded to the Commission for Art Recovery’s intervention by saying that it carefully reviewed the matter in light of the Washington Principles and could not find that it could accommodate the request for repatriation. (See the Washington Principles here).

2006 – The Commission on Looted Art in Europe reportedly contacted the Italian government in an effort to have the Christo Portacroce returned.

March 18, 2011 – The Brogan placed the painting on display at its museum in Tallahassee, Florida.

November 4, 2011 – The loan contract between the Brera and the Brogan was due to terminate on November 6, and the painting was to be delivered to Italy.  Immigration and Customs Enforcement (ICE seized the painting on November 4, 2011 to prevent its return to Milan, and the US Attorney filed its in rem action against the artwork seeking its forfeiture.

The prosecution will seek to prove these alleged facts as it attempts to convince the federal district court that it has the evidence to forfeit the Cristo Portacroce.  Time will tell if any party steps forward to contest the claim.

See Part I for a discussion of the US government's asserted legal claims in this case.

CONTACT: www.culturalheritagelawyer.com

Surge of Openings Will Allow Cuomo to Shape Judiciary

If you read the hundreds of cases filed in the Courts of New York State, including mine, you will see that there is evidence that the State itself, now represented by Eric Schneiderman and Andrew Cuomo, both lawyers who won on grounds of "fairness, stopping the corruption in politics", etc., etc., are doing anything but that. Andrew Cuomo, Eric Schneiderman, and Jonathan Lippman have the Unified Court System in their grasp, and I wish anyone who goes against their interests good luck. You will need it.
Surge of Openings Will Allow Cuomo to Shape Judiciary

John Caher, New York Law Journal, 11-09-2011

LINK

ALBANY - In his first 10 months in office, Governor Andrew M. Cuomo has had scant chance to appoint judges or to indicate what he is looking for in judicial candidates and how he will approach the process.

That is about to change, in a big way.

On Dec. 1, when Presiding Justice A. Gail Prudenti of the Appellate Division, Second Department (See Profile), becomes the state's chief administrative judge, Mr. Cuomo will have an opportunity to name the leader of the largest and busiest appellate court in New York.

A month later, when Third Department Presiding Justice Anthony V. Cardona (See Profile) retires, Mr. Cuomo will select the top judge on the Albany-based panel that, because of its location in the capital, decides cases of crucial interest to the administration.

"The Third Department gets all the big government cases and whoever is sitting in that seat can do a lot to help or impede what the governor wants to do," according to an attorney involved in the selection process.

And in the meantime, the Democratic governor can fill two other Appellate Division positions in the First Department, one in the Second Department and another in the Fourth. In addition, there is a Supreme Court vacancy in the Tenth Judicial District—Nassau and Suffolk counties—and three Court of Claims posts available for gubernatorial appointment.

"He will show us, with the quality of these appointments, how much importance he puts on the judiciary, how much care and attention he uses in addressing this," said Mark H. Alcott, a partner at Paul, Weiss, Rifkind, Wharton & Garrison and a former president of the New York State Bar Association. "This will be eagerly watched. He is a man who could be governor for a long time. The bench and the bar will be quite interested."

The Appellate Division positions, and in particular the two presiding justice spots, are garnering considerable speculation in the legal community. With relatively few cases ever getting to the Court of Appeals, the appellate departments often issue the last word on matters of legal significance.

Additionally, since the four presiding justices and Chief Judge Jonathan Lippman make up the policy-making administrative board of the courts, the governor's appointees could significantly impact both the functioning of the courts and the practice of law.

Only elected Supreme Court justices, not acting justices, are eligible for appointment to the Appellate Division.

Candidates are evaluated by screening panels in the four departments and required to fill out a 45-page questionnaire delving into matters as diverse as their bar admissions to whether they have outstanding parking tickets. The governor must choose among those found qualified by the screening panels.

In the Third Department, four current members of the court have applied for the presiding justice position, according to sources close to the process. They are Acting Presiding Justice Thomas E. Mercure (See Profile), a Republican, and Justices Karen K. Peters (See Profile), Leslie E. Stein (See Profile) and John C. Egan Jr. (See Profile), all Democrats.

Justice Mercure, who has served as acting presiding justice most of this year because Justice Cardona is ill, is highly regarded among the judges and staff of the Third Department.

One official involved in the selection process suggested it would make sense for the Democratic governor to appoint the Republican judge, especially since Justice Mercure faces mandatory retirement in two years.

"Politically, putting Tom [Mercure] on would be a great move for the governor," said a member of one of the judicial screening panels. "He [Mr. Cuomo] looks bipartisan, gets credit for promoting the best person and then gets to make another appointment in two years when he is running for re-election."

A member of another screening panel also said Mr. Cuomo would earn political credit, as well as bolster his credibility with the legal profession, by appointing Justice Mercure. The governor's father, former Governor Mario M. Cuomo, often appointed Republican judges.

"Mercure is the obvious choice and it would be an interesting choice by the governor," the committee member said. "His dad appointed a bunch of Republicans and it would show that judicial appointments are made on merit rather than pure politics. Mercure is a good, good judge and a good, good person and I just get the sense that everyone is very happy with what he has done."

But the attorney also speculated that the governor may feel pressure to appoint a woman for either the Second or Third Department presiding judgeship.

"With Gail Prudenti stepping down, I don't think the governor can afford to have five men on the administrative board," the screening committee member said.

Another screening committee member said Second Department Justice Cheryl E. Chambers (See Profile) is a "real strong candidate for" presiding justice in Brooklyn.

The attorney said the retirement of Justice Cardona alone will impact the operation of the administrative board, even though he was only one of five.

"The PJs [presiding justices] are really the big story because the PJ can make a big impact not only on their department, but on statewide policy," a screening committee member said. "Tony [Cardona] was a force on that administrative board. When he took positions, none of the other judges would buck him. Tony was very powerful, but fairly conservative in not wanting to make change, particularly changes that affected lawyers."

Court of Appeals Bench

Observers said they will be closely monitoring Mr. Cuomo's appellate division selections, in part because they may provide some insight into what he will be looking for when he appoints Court of Appeals judges.

Mr. Cuomo will have the opportunity to appoint two Court of Appeals judges his first term, and if he serves a second term he could become only the second governor to appoint all seven judges of the high court: The first was his father.

Judge Carmen Beauchamp Ciparick, the first Hispanic judge on the Court and the last remaining appointee of former Governor Cuomo, faces mandatory retirement at the end of 2012.

The Ciparick seat will be the first subject to new operating rules adopted by the Commission on Judicial Nomination, which screens candidates for the Court.

Under the revised rules, the commission has an "explicit commitment to diversity" and must provide the governor with much more detail than in the past.

"What he does with Ciparick's seat will really be a signal," according to one observer involved in the process. "That will say a lot about what he is looking for in a judge. He will also be under a lot of pressure to appoint a Hispanic, and there are already Latino judges that are lining up."

In November 2014, as Mr. Cuomo's first term comes to an end, Judge Victoria A. Graffeo's term expires. Judge Graffeo, who could seek re-appointment, was elevated to the bench by Republican Governor George E. Pataki.

On the first day of what would be Mr. Cuomo's second term, two more Court of Appeals seats, those held by Robert S. Smith and Theodore T. Jones, will open. Both Judge Smith, a Republican appointee of Mr. Pataki, and Judge Jones, a Democratic appointee of Governor Eliot Spitzer, will be subject to mandatory retirement and cannot seek re-appointment. Judge Jones is the only black judge on the Court.

Also in a second term, Mr. Cuomo would appoint a new chief judge at the end of 2015 when Judge Lippman turns 70, the mandatory retirement age. He will also have an opportunity to replace two Pataki appointees: Eugene F. Pigott Jr., who turns 70 in 2016 and must step down at the end of that year; and Susan Phillips Read, whose 14-year-term expires at the end of 2017.

Different governors have gone about naming Court of Appeals judges in different ways.

Until 1977, Court of Appeals judges were elected, so the first governor with the power to appoint high court judges was the late Hugh L. Carey.

Mr. Carey appointed three Democrats, but two of them had previously been elected to the Court. He elevated Lawrence Cooke to chief judge, appointed Bernard Meyer to the Court and appointed Matthew Jasen to a second term.

Mario Cuomo, who had clerked at the Court early in his career and has always professed great respect for the institution, left a perfectly balanced Court with three Democrats, three Republicans and an independent.

Mario Cuomo's successors appointed only members of their own political party.

Andrew Cuomo has yet to develop a track record on judicial appointments, and with the several Court of Appeals openings coming up in the next few years observers are eagerly awaiting his first batch of appointments to the Appellate Division and looking for a hint of what he will look for in judicial candidates and the factors, judicial as well as political, that will come into play.

"His dad had an open philosophy," according to an attorney with ties to the current Cuomo administration. "Andrew is much more politically focused. He hasn't spent the time his dad did practicing law so his focus is more from a political perspective than a legal one. He obviously understands the importance of the Court to his agenda."

Mr. Alcott, the former state bar president, said the potential for Mr. Cuomo to "remake the Court of Appeals in his image" is obviously "huge."

"Mario Cuomo had a great deal of reverence for the Court," Mr. Alcott said. "He clerked at the Court and was a practicing lawyer, and the Court of Appeals was very important to him. With Andrew, it is really not known. The lower court appointments might begin to give us a hint of what he is looking for."

"The Governor will recruit and screen the best and the brightest to serve New Yorkers as part of the judiciary," said spokesman Joshua Vlasto.

PART I OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Argues That Painting Loaned to The Brogan by The Brera Was Stolen, Smuggled, and War Material



"The Brera,"
which once possessed the Romano painting
seized by ICE in Florida on November 4, 2011.
Author: Masi27185. Creative Commons License

Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) seized the painting known as Christ Carrying the Cross Dragged by a Rogue pursuant to a court authorized warrant on Friday, November 4, 2011. Judicial records reveal that federal officials chose to seize the painting at that time because the artwork, which was on loan to and openly displayed at The Mary Brogan Museum of Art and Science, was about to be returned to the Brera Art Gallery (Pinacoteca di Brera) in Milan, Italy. The Brera originally possessed and loaned the artwork, painted by Girolamo Romano around 1543.

The US Attorney’s Office for the Northern District of Florida filed a civil forfeiture action in federal district court in Tallahassee the same day as the seizure. Seizure permits the government to take possession of the painting, but a forfeiture order issued by the court would allow the government to gain title of the painting. That is why the US Attorney’s Office filed an in rem (against the thing) lawsuit, naming the artwork as the defendant. The case is captioned and docketed as United States of America v. Painting Known as Cristo Portacroce Trascinato Da Un Mangoldo, 4:11-cv-00571-RH-WCS.

Federal prosecutors argue in their civil complaint that forfeiture of the painting is proper under multiple legal theories. They cite the typical ones under the criminal statutes (Title 18 of the United States Code) and the customs statutes (Title 19 of the United States Code). But the government also makes a claim under Title 22, the foreign relations section.

First, prosecutors allege that the painting was smuggled pursuant to 18 USC § 545 and therefore must be forfeited under the terms of this criminal statute.

They also say that the artwork must be forfeited because it was illegally imported in contravention of the customs law at 19 USC § 1595a(c)(1)(A) since the painting was “stolen, smuggled, or clandestinely imported or introduced” into the United States.

Next, federal attorneys claim that the painting was about to be exported in violation of 19 USC § 1595a(d), a customs law requiring that the painting “shall be seized and forfeited to the United States” because its export would be “contrary to law.”

Federal lawyers also make a claim under the Illegal Exportation of War Materials statute at 22 USC § 401(a), saying that it mandates forfeiture of the painting: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law” then the article may be seized and shall be forfeited.” (Emphasis added by the author).

Finally, the government makes the claim that the painting was stolen under 18 USC § 2314, the National Stolen Property Act, which criminalizes conduct whereby a person “transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.”

The court will decide if prosecutors possess the evidence to prove their case.  To date, the information prosecutors possess appears considerable. That material is discussed in Part II.

CONTACT: www.culturalheritagelawyer.com

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Museums at Risk - Results of the 2011 ICCROM-UNESCO International Storage Survey

Museums are at risk. That is the conclusion of the 2011 ICCROM-UNESCO International Storage Survey conducted between June and September by the International Centre for the Study of the Preservation and Restoration of Cultural Property and the United Nations Educational, Scientific and Cultural Organization. The published summary below shows significant deficiencies in museum storage, museum administration, risk management, and loss prevention.

Strategic planning, resource development, and risk preparation are crucial to maintaining first-class cultural institutions. Museums in need of assistance can contact the International Foundation for Cultural Property Protection (IFCPP) http://www.ifcpp.com/, RE-ORG http://www.re-org.info/, or other professionals who support cultural institutions.  The public, meanwhile, is encouraged to lend a hand to their local museums, libraries, and historical societies--both financially and by volunteering--so that history, art, science, and culture can be preserved and transmitted.  Many volunteer opportunities can be found at http://www.volunteermatch.org/.

A larger version of the report is available here.

CONTACT: www.culturalheritagelawyer.com