It should not surprise anyone that in People v Durand (2009 NY Slip Op 04476 4th Dept 6/5/09) the Court held that under New York law it was error for the lower court to have considered "the counts of burglary in the third degree and petit larceny, of which defendant was acquitted, when imposing the sentences on the criminal trespass counts (see People v Reeder, 298 AD2d 468, lv denied 99 NY2d 538; see also People v Rogers, 56 AD3d 1173, 1174)." (By contrast under a federal law, a sentencing court may consider conduct for which the defendant was acquitted, as long as that conduct had been proved by a preponderance of the evidence (US v Watts, 519 US 148 [1997]).
What grabbed my attention is that defense counsel failed to preserve that contention for the court's review. One would think that after the not guilty verdicts on those counts it would be upsetting to hear the judge reference them at sentencing. Fortunately, despite counsel's silence, the Fourth Department exercised its power to review that contention as a matter of discretion in the interest of justice, modified the judgment by vacating the sentence, and remitted the matter to County Court for resentencing.
Thứ Hai, 8 tháng 6, 2009
Chủ Nhật, 7 tháng 6, 2009
Update Legal To Contract Attorneys: "Shove It!"
"Update Legal announced on Tuesday that they would not be reimbursing for expenses, including those from the previous week. The total expenses for all of the attorneys on the project from the week before is probably less than $500, the average being about $20 per attorney. Almost all of the people working on this project have been here for more than a year meaning we have billed in excess of 2800 hours on average per year. This means even if Update only made a $1 per hour (what a load of crap that would be) it would have cost them .7% of the revenue we generated for them to cover the expenses. The lesson here is to never forget to bring the Vaseline when dealing with your overlord; I mean agency."
Jurisdictional Challenge to Superior Court Information Rejected
Mr. Hernandez challenged his conviction on the ground that the the superior court information (SCI) upon which he was prosecuted was jurisdictionally defective because he was not held for the action of a grand jury by the local criminal court as required by CPL 195.10 (1) (a). On appeal in People v Hernandez (2009 NY Slip Op 04570 4th Dept 6/5/2009) the Court finds that "the record establishes that defendant was arraigned by the local criminal court and that the matter was adjourned for further proceedings. There is no indication in the record that a preliminary hearing was held." So does the Court rule for Mr. Hernandez? No. The Court explained that
But in both People v Chad S. (237 AD2d 986) and People v Hurd (12 A.D.3d 1198) the Court had found that "the record fails to establish that defendant did not waive a preliminary hearing, that a hearing was not held, or that the charges were still pending in City Court." there was no such finding in Hernandez, yet the Court reached same result, simply because of the presumption.
the record does establish that Supreme Court was satisfied with the waiver of the indictment and executed an order to that effect. We thus "may presume that the matter was properly before that court" (People v Chad S., 237 AD2d 986, lv denied 90 NY2d 856; see People v Hurd, 12 AD3d 1198, 1199, lv denied 4 NY3d 764).
But in both People v Chad S. (237 AD2d 986) and People v Hurd (12 A.D.3d 1198) the Court had found that "the record fails to establish that defendant did not waive a preliminary hearing, that a hearing was not held, or that the charges were still pending in City Court." there was no such finding in Hernandez, yet the Court reached same result, simply because of the presumption.
SORA Level Lowered on Finding of Improvident Exercise of Discretion
In People v Brewer (2009 NY Slip Op 04548 4th Dept 6/5/09) the Court reduced the defendant's SORA level from a level three to a level two even though the defendant was presumptively a level three risk pursuant to the risk assessment instrument. The Court ruled that the lower court's determination was not an "abuse of discretion" it was, under the circumstances, an "improvident exercise of discretion." The Court explained that
Thus, the Court decided to "substitute [its] own discretion 'even in the absence of an abuse [of discretion]' (Matter of Von Bulow, 63 NY2d 221, 224)." Since this finding that there was an "improvident exercise of discretion" is an act of discretion, not a ruling on the law, it is not reviewable by the Court of Appeals. People v Baker, 64 NY2d 1027 (1985).
It is important for appellate counsel to realize that the discretionary authority of the Appellate Division is as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n.; People v Belge, 41 NY2d 60) and when it is exercised it is not reviewable unless it is abused. People v Baker, 64 NY2d 1027 (1985).
that there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level (see People v Weatherley, 41 AD3d 1238; see also People v Smith, 30 AD3d 1070). Defendant was 20 years old when he engaged in the underlying offense, i.e., sexual activity with a 16-year-old female who admitted that she willingly engaged in the sexual activity. There was no allegation or evidence of forcible compulsion. The record further establishes that this was defendant's first and only sex offense and that defendant was enrolled in sex offender counseling at the time of the SORA hearing.
Thus, the Court decided to "substitute [its] own discretion 'even in the absence of an abuse [of discretion]' (Matter of Von Bulow, 63 NY2d 221, 224)." Since this finding that there was an "improvident exercise of discretion" is an act of discretion, not a ruling on the law, it is not reviewable by the Court of Appeals. People v Baker, 64 NY2d 1027 (1985).
It is important for appellate counsel to realize that the discretionary authority of the Appellate Division is as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n.; People v Belge, 41 NY2d 60) and when it is exercised it is not reviewable unless it is abused. People v Baker, 64 NY2d 1027 (1985).
Thứ Bảy, 6 tháng 6, 2009
Corruption and Incompetence in the First and Second Depts.
Sat, Jun 6, 2009 at 8:23 PM
To: jpelzer@courts.state.ny.us
REGARDING CORRUPTION AND/ OR INCOMPETENCE
AT THE SECOND DEPARTMENT ATTORNEY GRIEVANCE COMMITTEE.
James E. Pelzer
Clerk of the Court
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
45 Monroe Place
Brooklyn, NY 11201
Tel: (718) 722-6307
Fax: (718) 858-2446
jpelzer@courts.state.ny.us
Dear Mr. Pelzer,
Thank you for your thoughtful response to my email of 6/1/2009.
I am sorry you take offense at my allegations of wrongdoing by your office. It is not my intention to insult anyone, but to assure just dispensation of my serious allegations of wrongdoing by three attorneys, who have violated the rules of the LCPR.
I have not received documents from the Appellate Division and Mr. Friedberg
I have never received the following documents you purport to possess on page two ¶2 of your letter:
1) The 2/20/09 order by the First Department Appellate Division
2) The 2/25/09 letter from Friedberg to you
I perceive this failure to as a violation of court rules by Mr. Friedberg. I am demanding the immediate provision of these documents to me. I will accept them from you or Mr. Friedberg, but until I do, this procedure is improper.
The Appellate Division Cannot Spontaneously
Adjudicate a Matter without it Being Brought as a Motion.
By their own account, neither the DDC nor Ms. Shivers requested the transfer of the complaint against Shivers. In his letter of October 23 Mr. Friedberg advised the court that “the committee takes no position and …that Ms. Shivers takes no position as well”. Ms. Shivers affirmed this position, a fact you have acknowledged. Who then, submitted a motion to transfer of the case against Ms. Shivers? No one.
Ms. Shivers is not a “Petitioner” in Minkoff’s Motion
Without Ms. Shivers’ express approval, Mr. Minkoff has no more standing to include her as a “petitioner” in a motion than I have standing to include you as a petitioner in a motion. Ms. Shivers can only be a petitioner by her express consent, which was not provided and in fact denied. Shivers’=2 0“no position” means she is NOT a petitioner, period. Mr. Minkoff’s inclusion of her as a "petitioner" is not only a misrepresentation of Ms. Shivers’ wishes, it is fraud upon the court.[1] It is also “conduct involving dishonesty, fraud, deceit, or misrepresentation. 22 NYCRR § 1200.3, DR 1-102(A)(4)”
Mr. Minkoff’s motion also fails to mention to the court that the complaint against him is separate and distinct from the complaints against Shivers and Stryker. At the time he submitted the motion, the complaint against Stryker, Minkoff and Shivers were docket numbers was 2008.0513, 2008.0514 and 2008.0515 respectively. That is a fact.
Minkoff makes no argument for transfer of Shivers’ complaint
Minkoff writes: “I submit this affirmation to transfer this disci plinary matter” (2008.0514). In the body of his motion affidavit, there is no argument whatsoever given as to why the complaint against Ms. Shivers should be transferred. Minkoff gives two arguments for the transfer of his case; one nonsensical and one irrelevant, but he does not even attempt to make an argument to transfer the complaints against Shivers or Stryker.
The Ruling by the Appellate Division is not lawful.
The Appellate cannot rule on a matter that has not been submitted as a motion. The Appellate Division cannot rule on a matter for which no argument has been made. Given the above, there are no grounds upon which the Appellate Division rule on the status of the complaint against Shivers. The only basis upon which they could make this ruling would be incompetence or corruption. As such, you are legally required to rectify the situation by informing the Appellate court that a mistake has been made.
What “Conflict of Interest” ?
You say in your letter that Minkoff’s case was transferred due to a claim of “conflict of interest”. First of all, while a true conflict of interest may be a reason to transfer of a complaint to another jurisdiction, a “claim” is not. Who has investigated this claim?
Mr. Minkoff’s Claim of Conflict is Patently Nonsensical.
Minkoff writes: “I currently represent several clients who are respondents in disciplinary proceedings before the Committee. The Galison complaint obviously creates an obvious conflict of interest for me with my existing clients, because the existence of a disciplinary complaint against me…forces me to choose between my own interest in appeasing the Committee and [my] obligation to represent our clients aggressively.” Nonsense.
Mr. Minkoff does not have to “appease”[2] the Committee or anybody else. He only has to answer my complaint and tell the truth. If he is found culpable, then he will be sanctioned like any other lawyer, and unfortunately, his clients may have to find a new lawyer. The same is true for every lawyer who is brought before the Committee. If they are found culpable, they may have to refer their clients to a new lawyer. Until they are found culpable, however, they are considered innocent. Where is the "obvious" conflict of interest?
Is Minkoff saying that he has to choose between defending himself and doing his job? Not any more than any other professional that is the subject of an ethical complaint or lawsuit. Even if Minkoff i s found culpable in my case, that does not reflect on his clients. Unless the DDC admits that they are prejudiced against Minkoff's clients due to allegations against Minkoff (which is illegal and absurd), then Minkoff’s argument makes no sense at all.
If there is another conflict of interest involving Mr. Minkoff and the First Department, please inform me.
Minkoff’s second argument; that I once had a Federal complaint against the DDC and him, is utterly irrelevant and fraudulent. His writes: “Mr. Galison has commenced a separate federal action...” Asi de from the fact that this lawsuit is irrelevant to the matter at hand , it is another blatant example of fraud against the court. Minkoff does not mention that I withdrew the case over a year before he wrote the motion. That is fraud and deception by omission. A non-existent lawsuit cannot affect anything at all.
If Mr. Minkoff's first argument for transfer is nonsensical, and his second argument fraudulent, then on what basis did the Appellate Court grant him a transfer of venue? Incompetence? Corruption?
It should also be noted that Mr. Minkoff specifically requested that the complaints NOT be transferred to the Second Department for the same boneheaded reason of an alleged “conflict of interest”. He specifically asks the Appellate court to transfer it to the Third or Fourth department and NOT to the Second Department. Why does the loopy “conflict” argument prevail in one case and not the other?
Ms. Kearse’s Decision Indicates Incompetence or Corruption
Finally, Ms. Hearse’s decision that my claims were not in your subject matter jurisdiction is ludicrous. If citations of violations of the LCPR are not in her jurisdiction than nothing is. I allege violations of LCPR statutes, including simultaneous representation, which is cite directly:
DR 5-105. Conflict of Interest; Simultaneous Representation
A lawyer shall decline proffered employment if the exercise of independent professi onal judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under subdivision (c) of this section.
I allege conflict of interest just as Mr. Minkoff alleges conflict of interest, but in my case, the allegati ons are dismissed without investigation and in Minkoff’s case they are accepted without investigation. That is the definition of corruption. The only thing Ms. Kearse has to go by is my allegations, because she is prohibited to see Ms. Shivers response without my seeing it as well, and I never saw it. My allegation is of improper simultaneous representation. Kearse cannot rule on this matter without knowing the facts, and she cannot know the facts without an investigation. THE FIR ST DEPARTMENT RULED THAT SUBJECT JURISDICTION WAS VALID PRIR TO THEIR REFERRAL to Ms. Kearse. THAT IS RES JUDICATA. “ALREADY ADJUDICATED”. Is res judicata subject to revision under NYCRR 670.23? I wouldn’t bet my career on it.
Your citation of NYCRR 670.23 is misleading and disingenuous , because I am referring to the rules of the First Department, and NYCRR 670.23 is a rule of the Second Department. There is no corresponding rule in the First Departme nt canon.
Furthermore, NYCRR 670.23 refers to "criminal and civil procedure", neither of which applies. Furthermore, Mr. Friedberg is not a judge.
You are Required by Law to Report Improprieties by Fellow “Officers of the Court”
Mr. Peltzer, I am reminding you that you are legally required to rectify any misconduct by a lawyer or a judge or a tribunal. I have now made these irrefutable allegations clear to you. Your failure to address them will be used as evidence against you.
You know as well as I that the court must follow its own rules, until they are changed by due process, and that the “interest of justice” does not mean, the interest of laziness, corruption or incompetence. Your failure to refer Mr. Minkoff and the Judges of the Appellate Division to the appropriate tribunal will be grounds for charges of conspiracy in the upcoming federal class action. Blogojavitch, Madoff, Drier, Demjanjuk, …. all thought they could get away with it.
I look forward to hearing from you regarding the above.
Sincerely,
Will Galison
[1] "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."
[2] Webster: 1: to bring to a state of peace or quiet : calm
2: to cause to subside : allay
3: pacify, conciliate ; especially : to buy off (an aggressor) by concessions usually at the sacrifice of principles
-----Original Message-----
From: James Pelzer
To: wgalison@aol.com
Sent: Fri, 5 Jun 2009 12:23 pm
Subject: Re: Our Conversation regarding Yvonne Shivers.
Dear Mr. Galison:
I have replied to your facsimile transmission and your e-mail in a letter that will be mailed today. A copy is attached.
James E. Pelzer
Clerk of the Court
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
45 Monroe Place
Brooklyn, NY 11201
Tel: (718) 722-6307
Fax: (718) 858-2446
jpelzer@courts.state.ny.us
>>> < wgalison@aol.com> 6/1/2009 6:13 PM >>>
Dear Mr. Peltzer,
Thanks very much for your time on the phone this afternoon.
As I mentioned, I have been asked to testify at the Senate Subcommittee hearing on the Judicial Oversight agencies which will be held on June 8th in Albany. My intention is to help expose the collusion by the Second and First departments to whitewash complaints against favored lawyers.
The Second department has been complicit in this practice involving complaints against four lawyers that I have brought, and many others that my colleagues have brought. If you are not aware of this pattern of corru ption in your department then it would appear you have been out of the loop. In any case, with this letter you are hereby informed of the improprieties of your colleagues at the Second Department.
My 4/7/09 letter to Ms. Maxfield-Kearse letter describes the matter of Ms, Shivers. In her reply of 5/3/09 Ms Kearse did not address a single one of my points. She summarilly dismissed the case against Ms. Shivers, which was entirely outside of her jurisdiction and without my having a chance to even see Ms. Shivers' response.
Ms. Kearse did not respond to any of my points regarding jurisdiction. She simply tells me that my complaint is "more appropriate for resolution by a court of law".
Aside from the fact that Ms. Kearse has no geographic jurisdiction her statement is faulty on two grounds:
1) My complaints against Ms. Shivers are all ethical complaints cited directly from the LCPR,
2) The First Department came to the opposite determination when they opened the investigation by ordering Ms. Shivers to reply. The investigation is open by res judicata.
I responded to Ms. Kearse's letter on May 3rd by sending a certified letter to Judge Romero, and I faxed the same to you. I have confirmation of the certified letter and electronic fax transmission confirmation to you. I also have a recording of a court employee confirming receipt.
Mr. Peltzer:20in our conversation you stated that in regard to transferring complaints "...the court can dispense with its own rules...". I do not think that you really believe that statement, but if you do, you are harboring a misconception that undermines our democracy and the rule of law.
At the June 8th hearing I will present your precise words as the quintessential fallacy that leads to utter abuse of power in government. John Adams wrote " the very definition of a republic is 'an empire of laws, and not of men.". Laws and judicial rules can be changed, but only by deliberate due process - not by the whim of a famously corrupt and limited man like Alan Friedberg. The court rules were framed with intense deliberation and discretion, and they we re framed to be strictly followed, not to be tinkered with by corrupt little hacks. Likewise, Ms. Kearse cannot legally rule on a matter that is outside her geographic jurisdiction. That is why jurisdictions exist.
In his famous interview with David Frost, disgraced President Nixon discussed his own dispensing of executive rules: "What I'm saying is... if the president does it, its not illegal". That wasn't true for him, a nd its not true for you or me. According to Frost. even as NIxon spoke those words, the gravity and insidiousness of his wrongdoing and self delusion "descended on him". I hope you will likewise reflect on your statement of this afternoon.
If I do not hear from you by the end of this week, I will conclude that you and your department believe that you can "dispense with the rules" and I will file a formal complaint against you. In any case, I am also preparing a federal case including RICO complaints citing conspiracy to deny me due process.
I hope to hear from you.
Sincerely.
Will Galison
William Galison
532 LaGuardia Place
New York, NY 10012
Dear Ms. Maxfield-Kearse, < /span>April 7,2009
Departmental Disciplinary Committee
Supreme Court, Appellate Division
Second Judicial Department
45 Monroe Place
Brooklyn, New York, 10012
Re: Complaint against Yvonne Shivers. Docket # 2008/0515 and T-433.09
Dear Ms. Maxfield-Kearse,
In her letter of March 31, 2009, Yvonne Shivers requests that the committee “expedite consideration” of the complaint # 2008/0515, which has been re-docketed by your department as T-433.09.
The transfer of the complaint against Ms. Shivers from the First to the Second Department is contrary to numerous state laws and rules. It is a tactic of the notoriously corrupt First Department Disciplinary Committee to illegally transfer complaints in order to whitewash complaints against politically con nected lawyers and to “disappear” complaints in foreign departments with no legitimate jurisdiction.
Any investigation or disposition by the Second Department of the validity or merits of the complaint by the Second Department is legally null and void, and constitutes conspiracy to deny due process under state, federal and federal RICO statutes.
Following are facts regarding this complaint, which establish that the proper jurisdiction for the complaint is the First Department and not the Second Department.
a) According to both the First and Second Department websites: “A complaint should be filed with the grievance committee having jurisdiction over the county in the State of New York in which the attorney maintains his or her office for the practice of law.”
b) Ms. Shivers maintains her sole office for the practice of law in Manhattan, New York City. Ms. Shivers does not maintain an office for the practice of law in Kings county. Therefore, by law, the proper jurisdiction for the complaint against Ms. Shivers is the First Appellate Division Disciplinary Committee, and not the Second Department.
c) The First Department DDC determined that the complaint was valid and opened the investigation in September 22, 2008, but the investigation was not completed.
d) According to Rules And Procedures Of The Departmental Disciplinary Committee there is NO provision for the transfer of jurisdiction before the completion of an investigation. Because the investigation is not completed, the transfer of 2008/0515 is illegal and null.
e) According to § 605.9 (e), there are three possible actions by the DDC “following completion of investigations.”:
1) referral to another body on account of lack of territorial jurisdiction;
2) dismissal for any reason (with an indication of the reason therefore), and referral to another body if appropriate; admonition; or
3) formal proceedings before a hearing panel.
The transferring of Ms. Shivers’ case to the Second Department does not conform to any of the above actions and would therefore be illegal, even of the investigation were completed, which it is not.
f) Ms. Shivers has never requested, personally or through counsel, that my complaint against her be transferred outside of the jurisdiction of the First Appellate Division.
Nor did Mr. Minkoff request the complaint against Ms. Shivers in his motion to transfer. Therefore, Ms. Shivers is NOT a petitioner in the motion to transfer the complaint against her, despite the fraudulent caption.
g) Furthermore, according to the Unpublished order of the Appellate Division (¶2) states “The [First Departmental Disciplinary] Committee takes no position regarding the petitioner’s motion to transfer”
h) Therefore, the complaint is being transferred spontaneously, randomly and in violation of numerous laws and rules, and to the expressed benefit of no party, because NOBODY HAS REQUESTED the transfer of the complaint against Ms. Shivers.
i) On the other hand, I have strenuously objected to the transfer on solid legal and procedural grounds, and my interests are harmed by the transfer.
j) I have never received any notice or confirmation from your committee that the complaint has been registered with, or is being investigated by your Committee.
k) The Supreme Court Appellate Division issued an unpublished order regarding the Jurisdiction of the complaint 2008/0514 against Ronald Minkoff. The order does not address the complaint against Ms. Shivers, and therefore does not apply to it.
l) Furthermore, the First Appellate Division’s unpublished order does not address the request for the transfer of any case to the Second Department. T he order specifically states: “petitioners have moved…. for the transferring the investigation and disposition of the disciplinary complaint under docket number 08/0514 of the to the Third or Fourth Judicial Departments”. The fact that the appellate division bizarrely approved the transfer of 08/0514 to a jurisdiction not even mentioned in the motion, has no bearing on the jurisdiction of complaint 2008/0515.
m) According to your website: “If it is determined that a complaint is suitable for investigation, the grievance committee will request the attorney to answer it.”
n) By demanding a response from Ms. Shivers on September 22, 2008, The First Department, determined that the complaint is “suitable for investigation”.
o) According to the booklet “Complaints against lawyers”: “during this investigation, the attorney about whom you have complained will be sent a copy of your complaint and will be given the opportunity to respond to it. You in turn, will be given the opportunity to reply to the lawyer’s response.”
p) Although Ms. Shivers claims that she responded to the complaint in a timely manner, I have never received any such response from Ms. Shivers, the First Departmental Disciplinary Committee, from your committee or otherwise. As far as I know, Ms. Shivers has never responded to my complaint against her.
q) As I have not been given the opportunity, under New York State law, no disposition can be made regarding this case until I have had an opportunity to reply to Ms. Shivers’ response.
In light of the above, I contend that the transfer of the complaint is contrary to the Rules of the Unified Court System. In light of the above, if you believe that the complaint against is legitimately in your jurisdiction, I am requesting a thorough explanation for this position.
If you do not believe that that the complaint should remain under the jurisdiction of the First Department, I demand that the complaint be sent back to that jurisdiction for investigation.
If the Second Department rules on the Shiver’s complaint against New York State Rules, you will be added as defendants in a federal complaint citing conspiracy to obstruct justice.
Finally, I have new evidence regarding my allegations against Ms. Shivers, which I would like to with the proper and which must be considered before any disposition is made by the appropriate committee. I cannot send you this information until your proper jurisdiction is established.
In summation: the transfer of the complaint to the Second Department is illegal, improper, and void for the following reasons:
1) According to § 603; because Ms. Shivers practices law in Manhattan, she is under the jurisdiction of the First Department.
2) Transfer before completion of investigation is contrary to § 605.9 (e).
3) Nobody requested the transfer of the complaint against Ms. Shivers and the transfer benefits no one, therefore there is no rational basis for its implementation.
4) The transfer of the complaint harms me and Ms. Shivers because it renders any resulting disposition legally ambiguous if not null and void.
5) I have not been given an opportunity to reply to Ms. Shivers’ alleged “response”
5) According to the First Appellate Division, a ruling is required for the transfer of a complaint, yet no ruling was made regarding the transfer of any complaint against Ms. Shivers. Furthermore, the motion did not request the transfer of ANY complaint to the Second Department.
I assume that the Second Department was ignorant of the above facts and laws when they gave the complaint a new docket number. I trust that upon learning these facts, the Second Department will reject the transfer as illegal and improper on numerous grounds.
The complaint against Ms Shivers alleges the depraved and wanton violation of the most fundamental ethical obligation of an attorney, to faithfully protect the interests of her client. Specifically, Ms Shivers simultaneously represented two clients with mutually contradictory testimony, and diametrically opposed interests.
Ms. Shivers wants the investigation “expedited” because she is seeking admission to the 18-b panel. Section 24 of the Application form to the assigned counsel plan of the First Department Appellate Division asks: “Have you ever been the subject of a complaint to a bar association or departmental grievance committee which resulted in your admonition, reprimand, or censure, you suspension from the practice of law, or your disbarment? If yes, state particulars.”
Any disposition made by your committee regarding my compla int Ms. Shiver’s will be fraudulent and illegal and will therefore constitute a fraud upon the First Appellate Division and will expose you to further claims of fraud against the court.
If there is any question about the abject corruption of the First Department DDC, please consider the complaint against Ms. Shivers’ client Jeffrey Greenberg, whose perjury and fraud upon the court has been whitewashed despite its almost comical blatancy.
I look forward to hearing from you regarding this matter as soon as possible.
Sincerely,
William Galison
Yvonne Shivers
Jacqueline P. Flug
Presiding Justice Prudenti
Alan Friedberg
Presiding Justice Gonzales
Chief Judge Jonathan Lippman
US Department of Justice
Attached:
1) Unpublished Order from First Appellate Division
2) Ronald Minkoff’s Motion to transfer
3) Response to complaint against Jeffrey Greenberg, Ms. Shivers’ client in the underlying case.
William Galison
532 LaGuardia Place
New York, NY 10012
Dear Mr. Romero
Chairman, May 3, 2009
Departmental Disciplinary Committee
Supreme Court, Appellate Division
Second Judicial Department
45 Monroe Place
Brooklyn, New York, 10012
Re: Complaint against Yvonne Shivers. Docket # 2008/0515 and T-433.09
Dear Mr. Romero,
I am reporting the illegal “whitewashing” of a complaint against a lawyer, by fraudulent assumption of geographical jurisdiction and fraudulent (albeit irrelevant) denial of subject jurisdiction. These illegal acts are in collusion with related efforts by the First Department. I urge you to rectify this immediately, as there is an investigation ongoing regarding whitewashing at the First Department. By correcting the blatant misconduct of Ms. Maxfield Hearse, you can spare your committee a lot of uncomfortable explaining in the near future.
In her letter of April 15, 2009, Ms. Maxfield-Hearse wrote:
“As you are aware, your complaint pertaining to the above-named attorneys, has been transferred to our office by order of the Appellate Division, First Judicial Department.”
I am aware of no such thing. I am aware that this statement is false and disdainful of the law for all the reasons listed in my letter of Aril 7, 2009 enclosed below.
As Ms. Hearse is entirely aware, there is no such order by the Appellate Division, First Judicial Department that mentions Ms. Shivers or her case, let alone that transfers such case to your jurisdiction. There was never even a request by anyone to transfer the case anywhere. There is only whitewashing of a valid and important complaint.
Ms. Hearse also wrote: “After reviewing your complaint, it has been determined that the issues you raise are more appropriate for resolution by a court of law.” That statement is also patently false and deceptive, as my complaints are prima face ethical complaints drawn directly from the rules of the LC PR.
All of my specific claims in my complaint against Ms, Shivers correspond exactly to specific provisions in the Rules of Professional Conduct and the Lawyers Code of Professional Conduct. The section of my complaint titled “The Role of Ms. Yvonne Shivers” cites the specific provision of the LCPR:
< /div>
“DR 5-105: The primary complaint against Mr. Minkoff, Ms. Stryker and Ms. Shivers is that they knowingly and maliciously represented Ms. Peyroux despite her drastically conflicting interests with their other clients and/or close colleague, with the intention of serving Greenberg’s interest to the detriment of the Peyroux’s. This is in direct violation of several disciplinary rules, especially:
DR 5-105. Conflict of Interest; Simultaneous Representation
A lawyer shall decline proffered employment if the exercise of independent professional
judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under subdivision (c) of this section.
(c) In the situations covered by subdivisions (a) and (b) of this section, a lawyer may
represent multiple clients if a disinterested lawyer would believe that the lawyer can
competently represent the interest of each and if each consents to the representation after
full disclosure of the implications of the simultaneous representation and the advantages
and risks involved.”
There is no civil law that deals with DR5-105 or any of the other ethical allegations in my complaint, because it is specifically and uniquely under the jurisdiction of the disciplinary committee. Furthermore, the First Department already ruled that my complaint against Ms. Shivers was appropriate for disciplinary review, and they went so far as to compel Ms. Shivers to answer these complaints, precisely because they were ethical complaints.
My complaint is prima face an ethical complaint, and Ms. Hearse’s letter does not change that inalterable fact. It only shows that she either failed to read the complaint or that she is complicit in a criminal conspiracy to illicitly whitewash my complaint. Of course, the matter of subject jurisdiction is irrelevant, because your Committee does not have geographic jurisdiction. There is no ruling from the Appellate court transferring Shivers’ complaint.
Sincerely,
William Galison
To: jpelzer@courts.state.ny.us
REGARDING CORRUPTION AND/ OR INCOMPETENCE
AT THE SECOND DEPARTMENT ATTORNEY GRIEVANCE COMMITTEE.
James E. Pelzer
Clerk of the Court
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
45 Monroe Place
Brooklyn, NY 11201
Tel: (718) 722-6307
Fax: (718) 858-2446
jpelzer@courts.state.ny.us
Dear Mr. Pelzer,
Thank you for your thoughtful response to my email of 6/1/2009.
I am sorry you take offense at my allegations of wrongdoing by your office. It is not my intention to insult anyone, but to assure just dispensation of my serious allegations of wrongdoing by three attorneys, who have violated the rules of the LCPR.
I have not received documents from the Appellate Division and Mr. Friedberg
I have never received the following documents you purport to possess on page two ¶2 of your letter:
1) The 2/20/09 order by the First Department Appellate Division
2) The 2/25/09 letter from Friedberg to you
I perceive this failure to as a violation of court rules by Mr. Friedberg. I am demanding the immediate provision of these documents to me. I will accept them from you or Mr. Friedberg, but until I do, this procedure is improper.
The Appellate Division Cannot Spontaneously
Adjudicate a Matter without it Being Brought as a Motion.
By their own account, neither the DDC nor Ms. Shivers requested the transfer of the complaint against Shivers. In his letter of October 23 Mr. Friedberg advised the court that “the committee takes no position and …that Ms. Shivers takes no position as well”. Ms. Shivers affirmed this position, a fact you have acknowledged. Who then, submitted a motion to transfer of the case against Ms. Shivers? No one.
Ms. Shivers is not a “Petitioner” in Minkoff’s Motion
Without Ms. Shivers’ express approval, Mr. Minkoff has no more standing to include her as a “petitioner” in a motion than I have standing to include you as a petitioner in a motion. Ms. Shivers can only be a petitioner by her express consent, which was not provided and in fact denied. Shivers’=2 0“no position” means she is NOT a petitioner, period. Mr. Minkoff’s inclusion of her as a "petitioner" is not only a misrepresentation of Ms. Shivers’ wishes, it is fraud upon the court.[1] It is also “conduct involving dishonesty, fraud, deceit, or misrepresentation. 22 NYCRR § 1200.3, DR 1-102(A)(4)”
Mr. Minkoff’s motion also fails to mention to the court that the complaint against him is separate and distinct from the complaints against Shivers and Stryker. At the time he submitted the motion, the complaint against Stryker, Minkoff and Shivers were docket numbers was 2008.0513, 2008.0514 and 2008.0515 respectively. That is a fact.
Minkoff makes no argument for transfer of Shivers’ complaint
Minkoff writes: “I submit this affirmation to transfer this disci plinary matter” (2008.0514). In the body of his motion affidavit, there is no argument whatsoever given as to why the complaint against Ms. Shivers should be transferred. Minkoff gives two arguments for the transfer of his case; one nonsensical and one irrelevant, but he does not even attempt to make an argument to transfer the complaints against Shivers or Stryker.
The Ruling by the Appellate Division is not lawful.
The Appellate cannot rule on a matter that has not been submitted as a motion. The Appellate Division cannot rule on a matter for which no argument has been made. Given the above, there are no grounds upon which the Appellate Division rule on the status of the complaint against Shivers. The only basis upon which they could make this ruling would be incompetence or corruption. As such, you are legally required to rectify the situation by informing the Appellate court that a mistake has been made.
What “Conflict of Interest” ?
You say in your letter that Minkoff’s case was transferred due to a claim of “conflict of interest”. First of all, while a true conflict of interest may be a reason to transfer of a complaint to another jurisdiction, a “claim” is not. Who has investigated this claim?
Mr. Minkoff’s Claim of Conflict is Patently Nonsensical.
Minkoff writes: “I currently represent several clients who are respondents in disciplinary proceedings before the Committee. The Galison complaint obviously creates an obvious conflict of interest for me with my existing clients, because the existence of a disciplinary complaint against me…forces me to choose between my own interest in appeasing the Committee and [my] obligation to represent our clients aggressively.” Nonsense.
Mr. Minkoff does not have to “appease”[2] the Committee or anybody else. He only has to answer my complaint and tell the truth. If he is found culpable, then he will be sanctioned like any other lawyer, and unfortunately, his clients may have to find a new lawyer. The same is true for every lawyer who is brought before the Committee. If they are found culpable, they may have to refer their clients to a new lawyer. Until they are found culpable, however, they are considered innocent. Where is the "obvious" conflict of interest?
Is Minkoff saying that he has to choose between defending himself and doing his job? Not any more than any other professional that is the subject of an ethical complaint or lawsuit. Even if Minkoff i s found culpable in my case, that does not reflect on his clients. Unless the DDC admits that they are prejudiced against Minkoff's clients due to allegations against Minkoff (which is illegal and absurd), then Minkoff’s argument makes no sense at all.
If there is another conflict of interest involving Mr. Minkoff and the First Department, please inform me.
Minkoff’s second argument; that I once had a Federal complaint against the DDC and him, is utterly irrelevant and fraudulent. His writes: “Mr. Galison has commenced a separate federal action...” Asi de from the fact that this lawsuit is irrelevant to the matter at hand , it is another blatant example of fraud against the court. Minkoff does not mention that I withdrew the case over a year before he wrote the motion. That is fraud and deception by omission. A non-existent lawsuit cannot affect anything at all.
If Mr. Minkoff's first argument for transfer is nonsensical, and his second argument fraudulent, then on what basis did the Appellate Court grant him a transfer of venue? Incompetence? Corruption?
It should also be noted that Mr. Minkoff specifically requested that the complaints NOT be transferred to the Second Department for the same boneheaded reason of an alleged “conflict of interest”. He specifically asks the Appellate court to transfer it to the Third or Fourth department and NOT to the Second Department. Why does the loopy “conflict” argument prevail in one case and not the other?
Ms. Kearse’s Decision Indicates Incompetence or Corruption
Finally, Ms. Hearse’s decision that my claims were not in your subject matter jurisdiction is ludicrous. If citations of violations of the LCPR are not in her jurisdiction than nothing is. I allege violations of LCPR statutes, including simultaneous representation, which is cite directly:
DR 5-105. Conflict of Interest; Simultaneous Representation
A lawyer shall decline proffered employment if the exercise of independent professi onal judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under subdivision (c) of this section.
I allege conflict of interest just as Mr. Minkoff alleges conflict of interest, but in my case, the allegati ons are dismissed without investigation and in Minkoff’s case they are accepted without investigation. That is the definition of corruption. The only thing Ms. Kearse has to go by is my allegations, because she is prohibited to see Ms. Shivers response without my seeing it as well, and I never saw it. My allegation is of improper simultaneous representation. Kearse cannot rule on this matter without knowing the facts, and she cannot know the facts without an investigation. THE FIR ST DEPARTMENT RULED THAT SUBJECT JURISDICTION WAS VALID PRIR TO THEIR REFERRAL to Ms. Kearse. THAT IS RES JUDICATA. “ALREADY ADJUDICATED”. Is res judicata subject to revision under NYCRR 670.23? I wouldn’t bet my career on it.
Your citation of NYCRR 670.23 is misleading and disingenuous , because I am referring to the rules of the First Department, and NYCRR 670.23 is a rule of the Second Department. There is no corresponding rule in the First Departme nt canon.
Furthermore, NYCRR 670.23 refers to "criminal and civil procedure", neither of which applies. Furthermore, Mr. Friedberg is not a judge.
You are Required by Law to Report Improprieties by Fellow “Officers of the Court”
Mr. Peltzer, I am reminding you that you are legally required to rectify any misconduct by a lawyer or a judge or a tribunal. I have now made these irrefutable allegations clear to you. Your failure to address them will be used as evidence against you.
You know as well as I that the court must follow its own rules, until they are changed by due process, and that the “interest of justice” does not mean, the interest of laziness, corruption or incompetence. Your failure to refer Mr. Minkoff and the Judges of the Appellate Division to the appropriate tribunal will be grounds for charges of conspiracy in the upcoming federal class action. Blogojavitch, Madoff, Drier, Demjanjuk, …. all thought they could get away with it.
I look forward to hearing from you regarding the above.
Sincerely,
Will Galison
[1] "Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."
[2] Webster: 1: to bring to a state of peace or quiet : calm
2: to cause to subside : allay
3: pacify, conciliate ; especially : to buy off (an aggressor) by concessions usually at the sacrifice of principles
-----Original Message-----
From: James Pelzer
To: wgalison@aol.com
Sent: Fri, 5 Jun 2009 12:23 pm
Subject: Re: Our Conversation regarding Yvonne Shivers.
Dear Mr. Galison:
I have replied to your facsimile transmission and your e-mail in a letter that will be mailed today. A copy is attached.
James E. Pelzer
Clerk of the Court
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
45 Monroe Place
Brooklyn, NY 11201
Tel: (718) 722-6307
Fax: (718) 858-2446
jpelzer@courts.state.ny.us
>>> < wgalison@aol.com> 6/1/2009 6:13 PM >>>
Dear Mr. Peltzer,
Thanks very much for your time on the phone this afternoon.
As I mentioned, I have been asked to testify at the Senate Subcommittee hearing on the Judicial Oversight agencies which will be held on June 8th in Albany. My intention is to help expose the collusion by the Second and First departments to whitewash complaints against favored lawyers.
The Second department has been complicit in this practice involving complaints against four lawyers that I have brought, and many others that my colleagues have brought. If you are not aware of this pattern of corru ption in your department then it would appear you have been out of the loop. In any case, with this letter you are hereby informed of the improprieties of your colleagues at the Second Department.
My 4/7/09 letter to Ms. Maxfield-Kearse letter describes the matter of Ms, Shivers. In her reply of 5/3/09 Ms Kearse did not address a single one of my points. She summarilly dismissed the case against Ms. Shivers, which was entirely outside of her jurisdiction and without my having a chance to even see Ms. Shivers' response.
Ms. Kearse did not respond to any of my points regarding jurisdiction. She simply tells me that my complaint is "more appropriate for resolution by a court of law".
Aside from the fact that Ms. Kearse has no geographic jurisdiction her statement is faulty on two grounds:
1) My complaints against Ms. Shivers are all ethical complaints cited directly from the LCPR,
2) The First Department came to the opposite determination when they opened the investigation by ordering Ms. Shivers to reply. The investigation is open by res judicata.
I responded to Ms. Kearse's letter on May 3rd by sending a certified letter to Judge Romero, and I faxed the same to you. I have confirmation of the certified letter and electronic fax transmission confirmation to you. I also have a recording of a court employee confirming receipt.
Mr. Peltzer:20in our conversation you stated that in regard to transferring complaints "...the court can dispense with its own rules...". I do not think that you really believe that statement, but if you do, you are harboring a misconception that undermines our democracy and the rule of law.
At the June 8th hearing I will present your precise words as the quintessential fallacy that leads to utter abuse of power in government. John Adams wrote " the very definition of a republic is 'an empire of laws, and not of men.". Laws and judicial rules can be changed, but only by deliberate due process - not by the whim of a famously corrupt and limited man like Alan Friedberg. The court rules were framed with intense deliberation and discretion, and they we re framed to be strictly followed, not to be tinkered with by corrupt little hacks. Likewise, Ms. Kearse cannot legally rule on a matter that is outside her geographic jurisdiction. That is why jurisdictions exist.
In his famous interview with David Frost, disgraced President Nixon discussed his own dispensing of executive rules: "What I'm saying is... if the president does it, its not illegal". That wasn't true for him, a nd its not true for you or me. According to Frost. even as NIxon spoke those words, the gravity and insidiousness of his wrongdoing and self delusion "descended on him". I hope you will likewise reflect on your statement of this afternoon.
If I do not hear from you by the end of this week, I will conclude that you and your department believe that you can "dispense with the rules" and I will file a formal complaint against you. In any case, I am also preparing a federal case including RICO complaints citing conspiracy to deny me due process.
I hope to hear from you.
Sincerely.
Will Galison
William Galison
532 LaGuardia Place
New York, NY 10012
Dear Ms. Maxfield-Kearse, < /span>April 7,2009
Departmental Disciplinary Committee
Supreme Court, Appellate Division
Second Judicial Department
45 Monroe Place
Brooklyn, New York, 10012
Re: Complaint against Yvonne Shivers. Docket # 2008/0515 and T-433.09
Dear Ms. Maxfield-Kearse,
In her letter of March 31, 2009, Yvonne Shivers requests that the committee “expedite consideration” of the complaint # 2008/0515, which has been re-docketed by your department as T-433.09.
The transfer of the complaint against Ms. Shivers from the First to the Second Department is contrary to numerous state laws and rules. It is a tactic of the notoriously corrupt First Department Disciplinary Committee to illegally transfer complaints in order to whitewash complaints against politically con nected lawyers and to “disappear” complaints in foreign departments with no legitimate jurisdiction.
Any investigation or disposition by the Second Department of the validity or merits of the complaint by the Second Department is legally null and void, and constitutes conspiracy to deny due process under state, federal and federal RICO statutes.
Following are facts regarding this complaint, which establish that the proper jurisdiction for the complaint is the First Department and not the Second Department.
a) According to both the First and Second Department websites: “A complaint should be filed with the grievance committee having jurisdiction over the county in the State of New York in which the attorney maintains his or her office for the practice of law.”
b) Ms. Shivers maintains her sole office for the practice of law in Manhattan, New York City. Ms. Shivers does not maintain an office for the practice of law in Kings county. Therefore, by law, the proper jurisdiction for the complaint against Ms. Shivers is the First Appellate Division Disciplinary Committee, and not the Second Department.
c) The First Department DDC determined that the complaint was valid and opened the investigation in September 22, 2008, but the investigation was not completed.
d) According to Rules And Procedures Of The Departmental Disciplinary Committee there is NO provision for the transfer of jurisdiction before the completion of an investigation. Because the investigation is not completed, the transfer of 2008/0515 is illegal and null.
e) According to § 605.9 (e), there are three possible actions by the DDC “following completion of investigations.”:
1) referral to another body on account of lack of territorial jurisdiction;
2) dismissal for any reason (with an indication of the reason therefore), and referral to another body if appropriate; admonition; or
3) formal proceedings before a hearing panel.
The transferring of Ms. Shivers’ case to the Second Department does not conform to any of the above actions and would therefore be illegal, even of the investigation were completed, which it is not.
f) Ms. Shivers has never requested, personally or through counsel, that my complaint against her be transferred outside of the jurisdiction of the First Appellate Division.
Nor did Mr. Minkoff request the complaint against Ms. Shivers in his motion to transfer. Therefore, Ms. Shivers is NOT a petitioner in the motion to transfer the complaint against her, despite the fraudulent caption.
g) Furthermore, according to the Unpublished order of the Appellate Division (¶2) states “The [First Departmental Disciplinary] Committee takes no position regarding the petitioner’s motion to transfer”
h) Therefore, the complaint is being transferred spontaneously, randomly and in violation of numerous laws and rules, and to the expressed benefit of no party, because NOBODY HAS REQUESTED the transfer of the complaint against Ms. Shivers.
i) On the other hand, I have strenuously objected to the transfer on solid legal and procedural grounds, and my interests are harmed by the transfer.
j) I have never received any notice or confirmation from your committee that the complaint has been registered with, or is being investigated by your Committee.
k) The Supreme Court Appellate Division issued an unpublished order regarding the Jurisdiction of the complaint 2008/0514 against Ronald Minkoff. The order does not address the complaint against Ms. Shivers, and therefore does not apply to it.
l) Furthermore, the First Appellate Division’s unpublished order does not address the request for the transfer of any case to the Second Department. T he order specifically states: “petitioners have moved…. for the transferring the investigation and disposition of the disciplinary complaint under docket number 08/0514 of the to the Third or Fourth Judicial Departments”. The fact that the appellate division bizarrely approved the transfer of 08/0514 to a jurisdiction not even mentioned in the motion, has no bearing on the jurisdiction of complaint 2008/0515.
m) According to your website: “If it is determined that a complaint is suitable for investigation, the grievance committee will request the attorney to answer it.”
n) By demanding a response from Ms. Shivers on September 22, 2008, The First Department, determined that the complaint is “suitable for investigation”.
o) According to the booklet “Complaints against lawyers”: “during this investigation, the attorney about whom you have complained will be sent a copy of your complaint and will be given the opportunity to respond to it. You in turn, will be given the opportunity to reply to the lawyer’s response.”
p) Although Ms. Shivers claims that she responded to the complaint in a timely manner, I have never received any such response from Ms. Shivers, the First Departmental Disciplinary Committee, from your committee or otherwise. As far as I know, Ms. Shivers has never responded to my complaint against her.
q) As I have not been given the opportunity, under New York State law, no disposition can be made regarding this case until I have had an opportunity to reply to Ms. Shivers’ response.
In light of the above, I contend that the transfer of the complaint is contrary to the Rules of the Unified Court System. In light of the above, if you believe that the complaint against is legitimately in your jurisdiction, I am requesting a thorough explanation for this position.
If you do not believe that that the complaint should remain under the jurisdiction of the First Department, I demand that the complaint be sent back to that jurisdiction for investigation.
If the Second Department rules on the Shiver’s complaint against New York State Rules, you will be added as defendants in a federal complaint citing conspiracy to obstruct justice.
Finally, I have new evidence regarding my allegations against Ms. Shivers, which I would like to with the proper and which must be considered before any disposition is made by the appropriate committee. I cannot send you this information until your proper jurisdiction is established.
In summation: the transfer of the complaint to the Second Department is illegal, improper, and void for the following reasons:
1) According to § 603; because Ms. Shivers practices law in Manhattan, she is under the jurisdiction of the First Department.
2) Transfer before completion of investigation is contrary to § 605.9 (e).
3) Nobody requested the transfer of the complaint against Ms. Shivers and the transfer benefits no one, therefore there is no rational basis for its implementation.
4) The transfer of the complaint harms me and Ms. Shivers because it renders any resulting disposition legally ambiguous if not null and void.
5) I have not been given an opportunity to reply to Ms. Shivers’ alleged “response”
5) According to the First Appellate Division, a ruling is required for the transfer of a complaint, yet no ruling was made regarding the transfer of any complaint against Ms. Shivers. Furthermore, the motion did not request the transfer of ANY complaint to the Second Department.
I assume that the Second Department was ignorant of the above facts and laws when they gave the complaint a new docket number. I trust that upon learning these facts, the Second Department will reject the transfer as illegal and improper on numerous grounds.
The complaint against Ms Shivers alleges the depraved and wanton violation of the most fundamental ethical obligation of an attorney, to faithfully protect the interests of her client. Specifically, Ms Shivers simultaneously represented two clients with mutually contradictory testimony, and diametrically opposed interests.
Ms. Shivers wants the investigation “expedited” because she is seeking admission to the 18-b panel. Section 24 of the Application form to the assigned counsel plan of the First Department Appellate Division asks: “Have you ever been the subject of a complaint to a bar association or departmental grievance committee which resulted in your admonition, reprimand, or censure, you suspension from the practice of law, or your disbarment? If yes, state particulars.”
Any disposition made by your committee regarding my compla int Ms. Shiver’s will be fraudulent and illegal and will therefore constitute a fraud upon the First Appellate Division and will expose you to further claims of fraud against the court.
If there is any question about the abject corruption of the First Department DDC, please consider the complaint against Ms. Shivers’ client Jeffrey Greenberg, whose perjury and fraud upon the court has been whitewashed despite its almost comical blatancy.
I look forward to hearing from you regarding this matter as soon as possible.
Sincerely,
William Galison
Yvonne Shivers
Jacqueline P. Flug
Presiding Justice Prudenti
Alan Friedberg
Presiding Justice Gonzales
Chief Judge Jonathan Lippman
US Department of Justice
Attached:
1) Unpublished Order from First Appellate Division
2) Ronald Minkoff’s Motion to transfer
3) Response to complaint against Jeffrey Greenberg, Ms. Shivers’ client in the underlying case.
William Galison
532 LaGuardia Place
New York, NY 10012
Dear Mr. Romero
Chairman, May 3, 2009
Departmental Disciplinary Committee
Supreme Court, Appellate Division
Second Judicial Department
45 Monroe Place
Brooklyn, New York, 10012
Re: Complaint against Yvonne Shivers. Docket # 2008/0515 and T-433.09
Dear Mr. Romero,
I am reporting the illegal “whitewashing” of a complaint against a lawyer, by fraudulent assumption of geographical jurisdiction and fraudulent (albeit irrelevant) denial of subject jurisdiction. These illegal acts are in collusion with related efforts by the First Department. I urge you to rectify this immediately, as there is an investigation ongoing regarding whitewashing at the First Department. By correcting the blatant misconduct of Ms. Maxfield Hearse, you can spare your committee a lot of uncomfortable explaining in the near future.
In her letter of April 15, 2009, Ms. Maxfield-Hearse wrote:
“As you are aware, your complaint pertaining to the above-named attorneys, has been transferred to our office by order of the Appellate Division, First Judicial Department.”
I am aware of no such thing. I am aware that this statement is false and disdainful of the law for all the reasons listed in my letter of Aril 7, 2009 enclosed below.
As Ms. Hearse is entirely aware, there is no such order by the Appellate Division, First Judicial Department that mentions Ms. Shivers or her case, let alone that transfers such case to your jurisdiction. There was never even a request by anyone to transfer the case anywhere. There is only whitewashing of a valid and important complaint.
Ms. Hearse also wrote: “After reviewing your complaint, it has been determined that the issues you raise are more appropriate for resolution by a court of law.” That statement is also patently false and deceptive, as my complaints are prima face ethical complaints drawn directly from the rules of the LC PR.
All of my specific claims in my complaint against Ms, Shivers correspond exactly to specific provisions in the Rules of Professional Conduct and the Lawyers Code of Professional Conduct. The section of my complaint titled “The Role of Ms. Yvonne Shivers” cites the specific provision of the LCPR:
< /div>
“DR 5-105: The primary complaint against Mr. Minkoff, Ms. Stryker and Ms. Shivers is that they knowingly and maliciously represented Ms. Peyroux despite her drastically conflicting interests with their other clients and/or close colleague, with the intention of serving Greenberg’s interest to the detriment of the Peyroux’s. This is in direct violation of several disciplinary rules, especially:
DR 5-105. Conflict of Interest; Simultaneous Representation
A lawyer shall decline proffered employment if the exercise of independent professional
judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests, except to the extent permitted under subdivision (c) of this section.
(c) In the situations covered by subdivisions (a) and (b) of this section, a lawyer may
represent multiple clients if a disinterested lawyer would believe that the lawyer can
competently represent the interest of each and if each consents to the representation after
full disclosure of the implications of the simultaneous representation and the advantages
and risks involved.”
There is no civil law that deals with DR5-105 or any of the other ethical allegations in my complaint, because it is specifically and uniquely under the jurisdiction of the disciplinary committee. Furthermore, the First Department already ruled that my complaint against Ms. Shivers was appropriate for disciplinary review, and they went so far as to compel Ms. Shivers to answer these complaints, precisely because they were ethical complaints.
My complaint is prima face an ethical complaint, and Ms. Hearse’s letter does not change that inalterable fact. It only shows that she either failed to read the complaint or that she is complicit in a criminal conspiracy to illicitly whitewash my complaint. Of course, the matter of subject jurisdiction is irrelevant, because your Committee does not have geographic jurisdiction. There is no ruling from the Appellate court transferring Shivers’ complaint.
Sincerely,
William Galison
Thứ Năm, 4 tháng 6, 2009
The Hudson Legal Snitch Line
Tom,
Hey good news! Hudson finally set up a confidential line so that doc reviewers can rat each other out.
Doc reviewer solidarity!
"To create an environment where employees have the knowledge and support to protect our values and promote lawful and ethical conduct, Hudson has established the Integrity Line. This toll-free, third-party help line provides a safe, confidential way for contract employees to report financial misconduct. Call the Integrity Line to report concerns such as:
Timekeeping abuses
Improper expense reporting
Financial fraud
The service has several important features:
Confidentiality: Employees have the option to report information anonymously.
Around the clock availability: Integrity line operators are available 24 hours a day, 7 days a week.
Protection from Retaliation: You will not be subject to retaliation for bringing a good faith issue or complaint to the company's attention, or for assisting in an investigation.
Follow up: All participants will receive a follow-up date for reporting progress.
To report your concern, call:
1 866 313 9349"
Hey good news! Hudson finally set up a confidential line so that doc reviewers can rat each other out.
Doc reviewer solidarity!
"To create an environment where employees have the knowledge and support to protect our values and promote lawful and ethical conduct, Hudson has established the Integrity Line. This toll-free, third-party help line provides a safe, confidential way for contract employees to report financial misconduct. Call the Integrity Line to report concerns such as:
Timekeeping abuses
Improper expense reporting
Financial fraud
The service has several important features:
Confidentiality: Employees have the option to report information anonymously.
Around the clock availability: Integrity line operators are available 24 hours a day, 7 days a week.
Protection from Retaliation: You will not be subject to retaliation for bringing a good faith issue or complaint to the company's attention, or for assisting in an investigation.
Follow up: All participants will receive a follow-up date for reporting progress.
To report your concern, call:
1 866 313 9349"
The Reality Behind a Successful DWI Defense
They say that Ithaca, NY is “ten square miles surrounded by reality,” and I would imagine life would be easier if we could only all agree on what reality is.
It is often a challenging task for lawyers to clearly communicate with their clients the full understanding of the reality of the pending criminal charges. Explaining a legal situation by placing it in context, and in terms they can understand can be difficult. In the practice of DWI defense a discussion of the differences between reality, fantasy, and actuality are an integral and necessary part of the case evaluation process.
Reality is always a perception.
It comes from a specific, personal, and unique vantage point. This viewpoint is likely grounded in a person’s set of mental filters and life experiences. Jurors from various backgrounds who sit on the same case, side by side in the same box, will likely focus on different facts. All that they choose to hear and see are then interpreted through their own belief systems. The unanimous conclusion they form over a person's legal guilt or legal innocence hinges on their agreement as a cohesive group over what the facts mean to them.
It is often the case that agreement between the jurors over “whether a person was driving while intoxicated (DWI) or driving while their ability was impaired (DWAI)” may have less to do with the truth of the evidence presented and have more to do with how they see and interpret the world.
The prosecutor and the defense attorney will both present the same set of facts but from different points of view, and with different conclusions. Which story (focus), and which conclusion regarding the DWI charge the jurors believe will partially rest on their upbringing and unique set of life influencers. That is why the jury selection or de-selection process called “Voir Dire” (literally to speak truth) is crucial to discovering possible juror prejudice or bias. Voir dire is when both Judge and attorneys can ask the jurors questions to bring out issues of partiality or unfairness amongst the jury pool prior to them being picked to sit for a trial.
In a DWI trial, we certainly want jurors who can be fair and impartial. If they or a family member was hurt by a drunk driver they will likely bring a highly charged prejudice into the Courtroom. If they or a family member works or worked in law enforcement this will likely color their opinion in favor of the police officer and breath test operator’s degree of credibility and subsequent testimony.
Case Evaluation Question One: VIEWPOINT
The "Reality" Question: Can the jurors put themselves in your shoes?
If you are under the age of 21, and were out on a night of illegal drinking (you must be 21 to legally drink in New York State) then a jury of people from the ages of 40 to 70 may not be in your favor. In contrast, if you were out celebrating your birthday with family and friends, and you were over 21 at the time, the scales will probably tip in your favor. This is because many people will likely relate to your legal and normal, social celebration of that special occasion with alcohol.
Jury empathy is powerful. Your unique set of facts on the night of your stop and subsequent arrest speak volumes to people who can see themselves, and their own behavior in your situation.
Case Evaluation Question Number Two: REASONABLENESS
The "Fantasy" Question: Are my expectations concerning my case reasonable and fact based?
It is often a challenging task for lawyers to clearly communicate with their clients the full understanding of the reality of the pending criminal charges. Explaining a legal situation by placing it in context, and in terms they can understand can be difficult. In the practice of DWI defense a discussion of the differences between reality, fantasy, and actuality are an integral and necessary part of the case evaluation process.
Reality is always a perception.
It comes from a specific, personal, and unique vantage point. This viewpoint is likely grounded in a person’s set of mental filters and life experiences. Jurors from various backgrounds who sit on the same case, side by side in the same box, will likely focus on different facts. All that they choose to hear and see are then interpreted through their own belief systems. The unanimous conclusion they form over a person's legal guilt or legal innocence hinges on their agreement as a cohesive group over what the facts mean to them.
It is often the case that agreement between the jurors over “whether a person was driving while intoxicated (DWI) or driving while their ability was impaired (DWAI)” may have less to do with the truth of the evidence presented and have more to do with how they see and interpret the world.
The prosecutor and the defense attorney will both present the same set of facts but from different points of view, and with different conclusions. Which story (focus), and which conclusion regarding the DWI charge the jurors believe will partially rest on their upbringing and unique set of life influencers. That is why the jury selection or de-selection process called “Voir Dire” (literally to speak truth) is crucial to discovering possible juror prejudice or bias. Voir dire is when both Judge and attorneys can ask the jurors questions to bring out issues of partiality or unfairness amongst the jury pool prior to them being picked to sit for a trial.
In a DWI trial, we certainly want jurors who can be fair and impartial. If they or a family member was hurt by a drunk driver they will likely bring a highly charged prejudice into the Courtroom. If they or a family member works or worked in law enforcement this will likely color their opinion in favor of the police officer and breath test operator’s degree of credibility and subsequent testimony.
Case Evaluation Question One: VIEWPOINT
The "Reality" Question: Can the jurors put themselves in your shoes?
If you are under the age of 21, and were out on a night of illegal drinking (you must be 21 to legally drink in New York State) then a jury of people from the ages of 40 to 70 may not be in your favor. In contrast, if you were out celebrating your birthday with family and friends, and you were over 21 at the time, the scales will probably tip in your favor. This is because many people will likely relate to your legal and normal, social celebration of that special occasion with alcohol.
Jury empathy is powerful. Your unique set of facts on the night of your stop and subsequent arrest speak volumes to people who can see themselves, and their own behavior in your situation.
Case Evaluation Question Number Two: REASONABLENESS
The "Fantasy" Question: Are my expectations concerning my case reasonable and fact based?
The main purpose of an attorney review and evaluation of your criminal case is to clearly, completely, and objectively dissect the evidence against you. Only after an attorney has complete discovery (police reports, accident reports, investigative notes, and records) and your version of the event, can he or she give you a fair and balanced legal opinion. The law is based in degrees of culpability (fault), and likelihoods (probabilities). Is it likely based upon all the facts, the charges, and the totality of the situation that the government can prove all the criminal charges beyond a reasonable doubt? You can not sweep bad evidence under a rug.
Fantasy is not grounded in reality.
Fantasies focus on false facts and/or negation of true facts. In the world of fantasy, facts that have no weight or bearing or relevance upon a legal situation are talked about, repeated, and emphasized by a client. A hallmark of the fantasy is having unreasonable expectations based upon the totality of the situation. The following are a few examples of fantasy based thought patterns:
Being a good student, from a respected family, with excellent character references may have bearing upon a Court’s sentencing and punishment but will have little bearing upon the prosecutor’s decision to pursue or downgrade the criminal charges, ie. offer a plea.
A Police officer who observed and reports in detail a driving pattern over the course of several miles with long periods of erratic and dangerous maneuvers can not be overlooked, it can not be negated, and it must be addressed at trial.
Doing 94 MPH in a 55MPH zone while having a bottle of Bourbon, and a pipe containing marijuana on your front seat will generally have an negative impact upon a jury, and a bearing upon your case.
Incriminating statements made after receiving your Miranda (right to remain silent, etc.)warnings, such as: “I should not have been driving tonight” or "Yeah, I had more beer than I can remember" or “I am 100% guilty” or “I made a stupid decision” must to be considered by your attorney for a fair case evaluation. Admissions of guilt after being warned of your right to remain silent are powerful prosecution evidence. DWI cases always have strong or weak defenses based upon and within the facts. Admissions of guilt whether verbal or written are likely damaging to your legal innocence.
The Actual is a balanced, stable, and non polarized understanding. It is an awareness that two sides always exist. I am a fan of Ralph Waldo Emerson. In 1841, he wrote an essay on the Law of Compensation. The piece is a brilliant and thoughtful look at the two sides of every event and thing. I believe that most DWI cases have an actuality base of both good and bad facts. Attorneys usually have to seek out (discover) the good facts that can help our cases. The good facts may be that the field sobriety tests were administered unfairly. Maybe your failure of certain tests was based on the walking of an invisible line, doing the tests in high heel shoes, or the subjective grading scale that was used. Should missing only two letters of the alphabet count as a failure of the test? The bad facts are easy to find because they are commonly written about within the police report and investigation notes.
The evaluation of the strengths and weaknesses of any DWI case hinges upon the specific patterns of facts and their potential interpretation by a Jury.
Case Evaluation Question Number Three: COMPLETENESS
The Actuality Question: What were your behavior pattern and driving pattern on the night of the arrest?
The old saying, “if it looks like a duck, walks like a duck, and sounds like a duck it most probably is a duck” holds true in most jurors minds. Overall, how did you move, talk, and act?
Alcohol is known to affect mental function before physical function. On the night of your arrest how was your mental behavior pattern? Were you able to: understand directions, follow instructions appropriately and in a timely manner, formulate intelligent responses to questions, and recall information that was requested? For example, there are five parts to the Miranda warning. Were you able to communicate your understanding of all five parts? Were you able to produce the correct documents in the order requested they were requested?
How was your physical behavior pattern? On a scale of 1-10, how was your performance on the field side tests? These balance and coordination exercises have many parts. Did you fall down? Were you able to walk normally? Were you able to stop and start when directed? All of your physical movements (demonstrating function) during the entire police "encounter" should be examined and evaluated.
If you were merely pulled over (stopped) for an equipment violation or a dated inspection sticker, then it is likely that your driving pattern was normal. If you were stopped for speeding, it could be argued that it generally takes more coordination, concentration, and focused attention to keep a car in line with the roadways and traffic at higher speeds.
There are 24 commonly observed driving patterns that signal nighttime impaired motorists. These come from the National Highway Traffic Safety Administration booklet- “The Visual Detection of DWI Motorists” (DOT HS 808 677).
These are a few of the bad patterns of driving behavior: weaving, straddling lanes, swerving, turning wide radius, drifting, almost hitting cars or railings, stopping abruptly, accelerating rapidly, decelerating rapidly, very slow speed, slow response to traffic signals and/or the police officer’s signals.
Now keep in mind, you can be a bad driver, a tired driver, or a distracted driver and display any of these erratic patterns without any alcohol in your system. Was there another non alcohol related reason for your poor driving behavior? Your lack of sleep, being overly worked, having a cold or an allergy can all contribute to bad driving behavior. Raising evidence of other non alcohol related reasons for behavior that could be due to alcohol is called evidence of reasonable doubt.
Case Evaluation Question Number Four: CONSISTENCY
Are my behavior pattern and my driving pattern on the night of my arrest consistent with my reported BAC (Blood Alcohol Concentration)?
This is the juncture where true case evaluation comes together. We must put everything (all the facts) into the context of juror perspective. Taking all the mental function facts, physical function facts, and driving pattern facts together are they a consistent and believable match to your Breath Test machine result? DWI defense lawyers like to call this the "disconnect theory." This is because if the BAC does not match up with all the other evidence, it stands alone, and it is disconnected as a piece of evidence. It can be viewed by the jury as invalid and inaccurate.
The jurors have an important trial decision to make. In these types of cases the jury must decide whether to hold you guilty by the breath machine’s number alone (that is the DWI 1192 (2), “per se” >.08 BAC charge), or to value their own better judgment and common sense by looking at all the facts of your case.
I would like to believe that in these situations people are not swayed by false science. I would hope that they trust themselves enough to follow the Judge’s instructions on the criminal legal standard of beyond a reasonable doubt with all proof (evidence) brought before them.
So there you have it, if the jurors can empathize with you, if you have a safe and proper (non erratic) driving pattern or a non alcohol related reason for an erratic pattern, and if facts can show that you possessed normal mental function on the night of your arrest that marks the beginnings of a great DWI defense in spite of your BAC number of > .08.
If you can add to that defense pretty good physical performance/function in terms of your walking and moving about (even with failed field sobriety tests) you will start to tip the scale in favor of your innocence of the charge of driving while intoxicated.
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