Holding it Against YOU: Understanding NYS Speeding & Traffic Tickets, Points, and Time Frames

I look forward to Summer in Ithaca, NY for a number of reasons:

1. The weather in May, June, and July are a sharp respite from our brutally cold, and sometimes icy  winters. Although this year we were lucky, with minimal snow, and only a short number of gloom days. The northeastern seaboard got bombed while we got hardly anything.

2. The town and city of Ithaca go into summer mode. More tourists, festivals, and out of state visitors but much less College traffic and congestion. The population variance is immediately palpable.

This blog post is for those that call me asking, how long will this (tickets, points, violations) stay on my record? 

First, which record? Are we talking about your criminal record or your NYS DMV record?

Second, the better set of questions, the ones they really want to ask but can't really articulate are:


How will this ticket (violation) impact me, my life, my insurance, my license, and in what way (s)?

THE IMPACT of UTT (Uniform Traffic Tickets) and Points

As far as your New York State criminal record is concerned, all misdemeanors and felonies will stay on your permanent record forever (if you were 19 years old or older when committed). Violations are sealed (including traffic tickets) here, except for three:

- DWAI (VTL 1192 (1)) Driving While Your Ability Was Impaired
- Solicitation of Prostitution
- Sexual Solicitation

As far as your NYS DMV record, there are four time frames you should be aware of:

- Drug and alcohol related traffic infractions (VTL 1192 (2) DWI per se BAC .08 or more, VTL 1192 (2) (a) (a) Aggravated DWI per se BAC .18 or more, VTL 1192 (3) DWI common law, VTL 1192 (1) DWAI, DWAI drugs, DWAI drugs and alcohol) All stay on your DMV record for 10 YEARS.


- Violations/traffic infractions (not related to drugs or alcohol) stay on your NYS DMV record for 4 YEARS.


- All traffic violations (including alcohol and drug related) can be held against you by NYS insurance carriers (under NYS law) for 3 YEARS.


- All traffic violations which carry points or the potential for suspension and /or revocation of license privileges (speeds, following too closely, etc.) have an 18 Month look back period. 

btw:
Everyone who has infractions in NYS will have them on their NYS DMV record. This is regardless of whether they hold residency in NYS or anyplace else. Canada (in particular Quebec and Ontario) have a tit for tat (point for point) with NYS, except for our lowest level speeds (that fall below the Canadian kilometers level).

Not everything is cut and dried so to speak. There is more to know depending upon your specific situation, types of traffic infractions, Court, County, Judge, and your prior record.

What about if you are from out of town? What about if you are from out of the country? What about if you just changed licenses? What about if you plan on moving and changing licenses?

Always best to (at the very least) consult with an attorney, maybe you don't need to retain one? This is not so much to always get an answer but sometimes just maybe to ask "the right or better" question?

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

Doctor of Chiropractic
Attorney and Counselor at Law

Ithaca, NY

607-229-5184
http://www.ithacadwi.com

Sotheby's Asks Federal Court to Dismiss Forfeiture Case Against Cambodian Statue

Sotheby's auction house and Ruspoli di Poggio Suasa yesterday filed a motion to dismiss the forfeiture case against a Khmer statue.  U.S. Attorney Preet Bharara brought the seizure and forfeiture action of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York on April 4. The government's complaint alleges that the statue, which was put up for sale at the auction house this spring, was "illicitly removed from the Prasat Chen Temple at the historic and archeological site of Koh Ker, Preah Vihear Province, Cambodia."  The case is in the federal district court for the southern district of New York.

Prosecutors cite alternative theories to advance their forfeiture claim. They write that "there is probable cause to believe that the [statue] is stolen property introduced into the United States contrary to law" in violation of customs law 19 U.S.C. §1595a(c).  Prosecutors alternatively say that the statue is subject to forfeiture under the criminal anti-smuggling law 18 U.S.C. § 545 because there is probable cause to believe that the statue "has knowingly been brought into the United States contrary to law."  And prosecutors maintain that the statue may be forfeited as proceeds of a theft crime under 18 U.S.C. § 981(a)(1)(C) and the National Stolen Property Act.

Ms. Ruspoli di Poggio Suasa says that her husband bought the Cambodian statue in 1975 in London "in good faith in an arms-length, open market transaction" and that "[t]he couple brought the Statue to their home in Belgium, [where] it remained on display until it was shipped to New York in 2010 to be sold at auction by claimant Sotheby’s, Inc."  Both Sotheby's and Ruspoli di Poggio Suasa are the named claimants in the government's forfeiture action.

The claimants' June 5 motion to dismiss makes the three-pronged argument that "[t]he Government has not alleged sufficient facts to establish a reasonable basis to believe it could meet its burden of proof at trial to show that the Statue was stolen from Cambodia, that it remained stolen at the time of import, and that it was known to be stolen by either Sotheby’s or Ms. Ruspoli."

The claimants challenge the prosecution's assertion that the statue was stolen from Cambodia.  They contend that colonial laws from 1900 and 1925, arguably vesting ownership of the statue in Cambodia, are ambiguous.  "Because the Colonial Decrees do not clearly and unambiguously declare that Cambodia owns the Statue, as a matter of law the removal of the Statue from Cambodia did not render the Statue stolen property," the claimants' attorneys argue.

The decrees were not even enforced, the attorneys suggest: "The [government's] Complaint is silent on whether Cambodia has ever before, in any context, enforced the Colonial Decrees as granting the state ownership of antiquities. Emails incorporated by reference in the Complaint reflect that Cambodia’s Culture Minister did not intend to seek to reclaim objects that left Cambodia 'years ago,' . . . before Cambodia’s 1992 law expressly nationalized antiquities. Another document incorporated by reference in the Complaint shows that Cambodia recognizes that the Companion Statue—which is similarly situated with regard to the Colonial Decrees cited by the Government—'belongs to' a Los Angeles museum [the Pasadena based Norton Simon Museum]." (Citations omitted).

The claimants argue that "[e]ven an apparently clear foreign law does not vest ownership if the foreign state has not actually enforced its own law as granting it title. . . . This rule prevents a country unwilling to take the politically unpopular step of seizing antiquities from its own people from asking this country [the U.S.] to do so on its behalf. It also prevents a country from 'rediscovering' laws that have previously not been enforced, thereby unsettling the reasonable expectations that have developed about the meaning of those laws."

The claimants additionally contend that there is no evidence showing that the statue was taken without Cambodia's permission.  "An essential element in proving that the Statue is stolen is establishing that its removal was without the permission of appropriate government authorities." They compare the case to the government's failed effort in federal district court to forfeit the mummy mask of Ka Nefer Nefer located at the St. Louis Art Museum:  "In Ka-Nefer-Nefer, the Government at least had evidence that the statue was once in the foreign state’s actual possession and that there was no record of a subsequent sale or gift. Here,the Government has not alleged that the Statue was ever in the actual possession of the Cambodian government, and the Government makes no allegation of the absence of gift or sale records. Nor, in any event, would the absence of such records be probative, given the passage of time, the intervening turmoil in Cambodia, and the widespread destruction of property records."

The claimants further declare that the government is unable to show that the statue was in Cambodia at the time the colonial decrees vesting title of the statue in Cambodia were enacted. "The Colonial Decrees on which the Government relies are only relevant if the Statue was still in Cambodia after 1900. . . . The Complaint, however, cites and incorporates powerful evidence that the Statue was not in Cambodia at the relevant time." (Citations omitted).  That evidence is the Parmentier survey.  The claimants' attorneys write that "[t]he Parmentier Survey, published in 1939, devotes five pages to a detailed description of the Prasat Chen temple, including the Western Gopura where the Statue supposedly stood, but contains no reference at all to the large and imposing stone Statue (or its companion). The only reasonable conclusion is that the Statue was not at Koh Ker when the Parmentier Survey was conducted."

The claimants' lawyers argue that "[e]ven if the Government has pleaded sufficient facts to establish that the Statue’s removal from Cambodia constituted theft (which it has not), the Complaint must still be dismissed for the independent reason that the Government has not met its burden of alleging facts showing the Statue remained stolen at the time of import."  The attorneys maintain that Sotheby's imported the statue legally, saying that "the assertion that Sotheby’s imported property it knew was stolen is, on its face, wholly implausible. Sotheby’s, after all, fully and accurately described the Statue to the U.S. Customs Service at the time it was imported, put the Statue on the cover of the auction catalogue it circulated publicly around the world, accurately described the Statue’s provenance in that catalogue, and disclosed its intent to sell the Statue to the Cambodian Minister of Culture months in advance of the planned sale. Those are hardly the acts of a 'fence' knowingly selling stolen loot." (Citations omitted). The attorneys add:

"[Sotheby's] would have to have known at the time of import into the United States that Cambodian law in effect when the Statue was still in Cambodia gave that country title to the Statue. That is, Sotheby’s would have had to anticipate that Cambodia and the U.S. Government would take the position that a tangled, unclear patchwork of French colonial texts—no longer anywhere on the code books of the modern nation of Cambodia—decreed the Statue to be state property within the rules set down by McClain and Schultz. Yet the Colonial Decrees the Government cites are sufficiently obscure that even the Government has been unable to locate a fully legible version of the central decree on which it relies—the 1900 Colonial Decree—which it appears in any event was itself subsequently declared illegal."

[Author's sidebar: the McClain and Schultz cases stand for the proposition that a foreign patrimony law that clearly vests legal title in a cultural object may be used as a basis to trigger prosecution in the United States under the National Stolen Property Act in cases involving those who criminally receive property of another.]

Finally, the claimants object to the assertion that they knew the statue was currently stolen.  The government cited a June 1 email by a scholar who advised Sotheby's that the statue was "definitely stolen."  The attorneys for the claimants express that "the Government bears the burden of proving its case by a preponderance of the evidence. The June 1 email, however, is insufficient to create the required reasonable basis to believe the Government will be able to meet its burden at trial."  The lawyers argue:

"First, the view expressed in the Art Historian’s email—that the Statue is 'definitely stolen' because the feet of the Companion Statue were found at Prasat Chen—is a non sequitor as a legal matter. As the law set forth above makes clear, knowing the place of origin is but one piece of a complex puzzle necessary to assessing whether an antiquity is stolen in the legal sense. It is hardly reasonable to think that Sotheby’s—which the Complaint alleges (at ¶ 18) had both a Worldwide Compliance Department and a Worldwide Legal Department tasked with dealing with such issues—would have formed its belief about whether this Statue was stolen based on the unsolicited opinion of a free-lance Art Historian who offered no view on such critical questions as when the Statue left Cambodia, who owned it under Cambodian law at that time, or what was the significance of the 1975 London sale. And, more importantly, even if the June 1 email had some modest force standing alone, it is completely undercut when one considers the subsequent emails incorporated by reference in the Complaint regarding what the Art Historian said and did shortly thereafter."

Further arguing their point, the claimants' attorneys submit::

"In late June, after traveling to Cambodia and speaking to Cambodia’s Minister of Culture, the Art Historian changed her opinion and retracted her concern that the Statue was stolen. As the Art Historian’s emails to Sotheby’s reflect, the Minister of Culture advised her that his focus was 'to stop anything from being exported from Cambodia now, not to go after pieces that left years ago when there were no restrictions.' He also assured her that Cambodia had no intention of seeking to reclaim the Companion Statue—a telling fact since (a) the Cambodians knew the Companion Statue’s feet had been found at Prasat Chen, and (b) the Companion Statue had a similar known provenance, having been sold by Spink [the London antiquities dealer] several years after the Statue. This new information both revealed that Cambodia was not actively enforcing the Colonial Decrees as vesting title . . . (because they did not plan to attempt to reclaim a work with similar provenance), and undermined any characterization of the Statue as stolen (since it was removed 'years ago when there were no restrictions'). It is hardly surprising that the Art Historian changed her mind, stating that: 'I think that Sotheby [sic] can therefore go ahead and plan to sell' the Statue, and that she 'think[s] that legally and ethically [Sotheby’s] can happily sell the piece.' Repeatedly thereafter, the Art Historian reiterated via email her view that Sotheby’s could lawfully sell the Statue, including: 'It was acquired legally, there should be no problem' and 'The piece was legally obtained, so can be legally sold.'" (Citations omitted).

The claimants conclude by saying that "the Government may not seize property by inventing new interpretations of colonial laws long since consigned to dusty archives, while ignoring the archeological record, settled law, and compelling indicia of good faith."

UPDATE August 2012: See the government's objection to the motion to dismiss.

CONTACT: http://www.culturalheritagelawyer.com/

Florida Court Orders Entity Called Victims of Holocaust Art Theft to Get a Lawyer in Lawsuit Against Czech Republic

Florida federal court, southern district

Edward Fagan filed a lawsuit in April against the Czech Republic and two of its cultural institutions on behalf of Victims of Holocaust Art Theft, an entity created in Florida one day before the lawsuit was filed.  Now the court has ordered that Victims of Holocaust Art Theft must get a lawyer by July 5 or have its complaint dismissed.

The case of Victims of Holocaust Art Theft v. Czech Republic; National Gallery in Prague; Museum of Decorative Arts of Prague  is a replevin (i.e. give the stuff back) action that seeks the return of alleged Nazi looted art.  Fagan is reportedly a reparations lawyer who no longer possesses a license to practice law.  The United States District Court, Southern District of Florida, reviewed Fagan's civil complaint sua sponte (i.e. on its own, without any party filing a motion).  The court concluded the following (citations omitted in the order quoted below):

"Plaintiff, an entity known as Victims of Holocaust Art Theft, seeks to recover an art collection that allegedly was stolen from a Jewish Czech family (the Poppers) by the Nazis and is now in the possession of the Czech Republic and its museums. According to the Complaint, Plaintiff  'is a business registered in Florida and in this judicial district, is an owner of certain interests in The Popper Collection, [and] is a limited partner with and has limited but express authority [of] Michal Klepetář, one of The Popper Heirs . . . to take certain acts regarding The Popper Collection, including commencing this action.' The Complaint further notes that Plaintiff’s formation 'is the result of agreements, cooperation and partnering between / of Edward D. Fagan and Michal Klepetář . . . and other persons with similar claims for restitution / replevin of art work originating in other Eastern European countries.'"

"The Complaint is signed by Edward D. Fagan on behalf of Plaintiff. Based on a review of the Complaint and the accompanying Civil Cover Sheet, it is clear that Fagan has filed the Complaint as a pro se representative of Plaintiff, not as its attorney. Nowhere does the Complaint indicate that Fagan is an attorney admitted to practice before this Court."

"Although parties in federal court are generally allowed to 'plead and conduct their own cases personally or by counsel,' '[i]t has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel.' . . . This is true regardless of whether the entity is a for-profit enterprise or a nonprofit organization."

"Here, while Plaintiff’s exact form and nature are not fully clear, the Complaint shows that Plaintiff is an organization owned and controlled by at least one person (Michal Klepetář) other than Fagan. Moreover, Plaintiff seeks to vindicate the interests of Klepetář and other persons in allegedly stolen artwork. Fagan, therefore, may not represent Plaintiff on a pro se basis. Instead, if Plaintiff wishes to proceed in this action, it must be represented by counsel."

CONTACT: www.culturalheritagelawyer.com

Motion Denied: Missouri Court Forces Prosecution to Consider Appealing the St. Louis Art Museum Ka Nefer Nefer Mummy Mask Case

The federal court for the eastern district of the United States has denied the prosecution's request to reopen the St. Louis Art Museum Ka Nefer Nefer mummy mask case.  Click here for background.

Judge Henry Autrey's May 30, 2012 order denied the U.S. Attorney's Motion for Reconsideration and extended the time for the government to file an appeal with the Eighth Circuit Court of Appeals.  U.S. Attorney Richard Callahan will now have to decide whether to let the district court dismissal of the forfeiture case stand or whether to appeal to the higher court.

CONTACT: www.culturalheritagelawyer.com

Cortland Lawyer Explains NY Legal Success versus Legal Failure

People love to throw around words. Sometimes it is not intentional but they don't always mean what they say or say what they mean. I use words and language to serve my clients. It helps to explain things in terms most suitable for the situation and my client's perspective.

In a personal injury case the term disabled is way different word than word impaired. Yet people use these words unknowingly. Both can be temporary or permanent, both can be whole or partial, but they are worlds apart in terms of monetary value or case impact. btw disabled relates to a "job," impaired relates to a "part of the body" or a "function."

1. Success and Failure are Judgments

Whether someone or something is a success depends on how you define it. I always get results. I like to say it is a good result or a bad result based upon the total picture. If my client receives their due based upon their injuries, the impact to their life, and the type of accident (in a particular location) then it is a good result in my opinion.

Results have to take into consideration their age, their job, their liability, and their location. Notice that I used the word "their" because injuries are unique to every individual. Do not compare a Brooklyn bus case with one in upstate New York, they are two different animals.

2. Time and Money are Interrelated (they both have value)

People want results now. They would rather have a bird in the hand than two in the bush. Is waiting going to result in more? Or is waiting going to result in a little extra benefit? Yes, time has a value in regards to money. Money is time and time is money. Having a fast and complete closure of a legal issue can be of great value. This is true in injury cases and this can also be true in criminal cases. Spending more time and more money don't always yield a better result. In fact, prolonging the agony of waiting is not what many of us want.

Waiting may be in your best interest financially, but is it what you want to do?
Going to trial may also be in your best legal interest, but do you want to take that risk? Do you want to spend that time? Do you want to go through that emotional roller coaster?

3. Best for YOU Should Be Best for Your Advisor/Lawyer/Counselor

Conflicts of interest bother me. If someone has a stake in any outcome it may influence their decisions. Your attorney should always be looking out for what YOU want. What are YOUR goals? They may not fit in with the goals or the desires of your attorney. Lawyers are supposed to put aside their own biases, and conflicts. That is why under the ethical and professional codes of conduct they have to remain neutral, work for you, and pace themselves in a fiduciary capacity.

A fiduciary is one that has Fidelity (from the latin Fe) to you. Faith in you, allegiance to you, and place nothing in between that. We should expect that of our professional advisors.

Dr. Lawrence (Larry) Newman

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

http://www.ithacainjurylawyer.com

607-229-5184

Getty Museum and Armenian Church Report Progress in Zeyt'un Gospel Case - UPDATED

Getty Musuem
Source: Jelson 25 (public domain)

The Getty Museum and the Western Prelacy of the Armenian Apostolic Church of America this past Thursday told a Los Angeles County superior court that they were making progress in their dispute over the return of allegedly stolen Zeyt'un Gospel pages. In June 2010 the Armenian Apostolic Church sued the J. Paul Getty Museum for the return of seven missing pages from an illuminated Bible created in 1256.  The court last year ordered the parties to mediate the dispute.  They now report progress.

In a stipulation filed on May 31, 2012, the Getty and the Armenian church both said that a May 10, 2012 mediation session conducted by former federal judge Dickran Tevrizian resulted in "substantial progress . . . toward a potential voluntary resolution of this dispute . . . ."

Both parties asked the court for permission to continue mediation.  The court granted the request and scheduled a status conference for August 3.

UPDATE August 8, 2012:  The parties filed a stipulation on August 3, 2012 to inform the court that they desired more time to mediate.  The parties proposed an October 19, 2012 deadline date.

CONTACT: www.culturalheritagelawyer.com

Solicitor General Tells U.S. Supreme Court to Reject Rubin v. Iran Case

Solicitor General Donald B. Verrilli, Jr.

Saying that the Seventh Circuit Court of Appeals got it right, the U.S. Solicitor General told the Supreme Court last week to reject the case of Rubin v. Iran.


Lawyers for Jenny Rubin and other injured litigants who won a judgment against Iran for its sponsorship of a 1997 terrorist attack have been trying to collect a multi-million dollar court award by attempting to seize ancient Persian artifacts located at the Oriental Institute at the University of Chicago and the Chicago Field Museum.  The Seventh Circuit on March 29, 2011 sent the case back to the federal district court in Illinois for review. But the Rubin plaintiffs instead sought review by the nation's highest court.  See here for more background.

The U.S. Supreme Court responded in February 2012 by asking the Solicitor General (the U.S. government's attorney specifically assigned to the Supreme Court) to file an opinion. Solicitor General Donald B. Verrilli, Jr. filed an amicus curiae brief (friend of the court brief) arguing that the Rubin plaintiffs' petition for certiorari (e.g. review by the supreme court) "should be denied" because the appeals court correctly ruled on the matter. The full brief may be found here.

For more about the parallel case in the First Circuit click here.

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