Westchester Surrogate Scarpino's Corruption Back in Federal Court

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

SUPPLEMENTAL OPINION AND ORDER
08 Civ. 3305 (SAS) (dated April 6, 2010)

PAMELA CARVEL, Plaintiff,

-against-

NEW YORK STATE; OFFICE OF COURT
ADMINISTRATION OF THE UNIFIED
COURT SYSTEM OF NEW YORK;
THOMAS J. CAHILL, individually and in
his official capacity; SHERRY M. COHEN,
individually and in her official capacity;
GARY L. CASELLA, individually and in his
official capacity; EVE MARKEWICH,
individually and as a partner of BLANK
ROME LLP; FRANK STRENG,
individually and as a partner of
McCARTHY FINGAR LLP; DEBORAH
McCARTHY; JOEL AURNOU; WILLIAM
GRIFFIN, individually and as a co-owner of
HUDSON VALLEY BANK; LAURA
WERNER, individually and in her official
capacity; ANTHONY SCARPINO,
individually and in his official capacity;
CHARLES SCOTT, individually and in his
official capacity; and JOHN/JANE DOE,
DOE COMPANY 1-20,
Defendants.

SHIRA A. SCHEINDLIN, U.S.D.J.:

I. INTRODUCTION

Plaintiff Pamela Carvel, proceeding pro se, brought suit against the above named defendants pursuant to, inter alia, 42 U.S.C. § 1983 (“section 1983”),1 alleging various constitutional violations including the denial of due process and equal protection of the laws under the Fourteenth Amendment.2 Carvel also asserts a number of state law claims.3 The instant case, along with five other cases, were filed as related to Anderson v. State of New York, 07 Civ. 9599 (SAS).4 On August 8, 2008, this Court dismissed this and the five other actions in an omnibus Opinion and Order.5 Carvel appealed to the Second Circuit which, on March 12, 2010, issued a Summary Order, affirming in part, vacating in part, and remanding this case to this Court.6

The Second Circuit affirmed the dismissal of plaintiff’s Amended Complaint in all aspects but one, stating as follows:

we cannot affirm the District Court’s dismissal of plaintiff’s conspiracy allegations under §1983. Plaintiff alleges a “strong appearance of bribery” surrounding $400,000 in loans given to Justice Scarpino. App. 26 (Compi. 7~ 69-70). Although Justice Scarpino enjoys the benefit of absolute judicial immunity from that claim, the other defendants involved in the alleged “bribery” scheme do not. See Dennis v. Sparks, 449 U.S. 24, 28-29 (1980). Because the District Court did not explicitly address this claim before dismissing it sua sponte, we lack a basis on which to affirm its dismissal. We therefore vacate the dismissal with respect to the “bribery” claim and remand for the District Court to address Ihe claim in the first instance.7 This Court must therefore apply the holding of Dennis v. Sparks8 to plaintiff’s allegations and determine whether any part of her conspiracy claim should survive.

II. LEGAL STANDARDS

A. Motion to Dismiss

The first question is whether plaintiff’s allegations meet the plausibility standard recently adopted by the Supreme Court. In deciding a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must “accept as true all of the factual allegations contained in the complaint”9 and “draw all reasonable inferences in [the] plaintiffs favor.”10 However, a court need not accord “[l]egal conclusions, deductions or opinions couched as factual allegations . . . a presumption of truthfulness.”11 To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must show that the plaintiff is plausibly entitled to relief.’12 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”13 Plausibility “is not akin to a probability requirement,” rather plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.”14

B. Conspiracy Under Section 1983

In order to survive a motion to dismiss a section 1983 conspiracy claim, a plaintiff must allege: “(I) an agreement between [two or more state actors or] a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”5 “Thus, a plaintiff must show that defendants acted in a willful manner, culminating in an agreement, understanding or meeting of the minds, that violated [his] rights, privileges or immunities secured by the Constitution or federal courts.”6 “In addition, ‘complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed.”7 While conclusory allegations may be insufficient, “conspiracies are by their very nature secretive operations,’ and may have to be proven by circumstantial, rather than direct, evidence.”8 Finally, “[a] violated constitutional right is a natural prerequisite to a claim of conspiracy to violate such right.”9 “Without deprivation of a federal constitutional right, ‘there can be no civil rights conspiracy to deprive that right.”20 Thus, to survive a motion to dismiss, a plaintiff must allege a constitutional deprivation.

III. DISCUSSION

A. In General

Because plaintiff’s Amended Complaint is prolix and often vague and repetitive, it is difficult to decipher the parameters of the alleged conduct that resulted in particular constitutional violations. However, the thrust of plaintiffs numerous allegations can be summarized as follows: After the suspicious death of plaintiffs uncle, ice cream magnate Thomas Carvel, his multimillion dollar estate was plundered by private attorneys, assisted by various employees of the state court system, to the financial and emotional detriment of his wife, Agnes Carvel, now deceased,2’ and plaintiff, his surviving niece.22 In sum, plaintiff alleges that individual defendants William Griffin, Eve Markewich, Frank Streng, Deborah McCarthy, and Joel Aurnou (collectively, the “Individual Defendants”), all of whom are attorneys in private practice, colluded with Justice Anthony Scarpino of the Westchester County Surrogate’s Court, and other state employee defendants, to “engage in tax fraud, charity fraud, covert agreements, conversion, and fraudulent transfers of Pamela Carvel ‘s assets and other Carvel assets to themselves and their agents, so as to defraud Pamela Carvel as client, fiduciary, creditor, beneficiary, and charitable benefactor.”23

B. The Alleged Bribery

Carvel further alleges that Griffin, Markewich, Streng, McCarthy, and Aurnou “entered into covert verbal and written agreements in the Southern District, orchestrated, endorsed, or condoned by Defendants Scarpino, Scott, and Werner, to withhold ALL funds from Pamela Carvel (and the Carvel family) as fiduciary, creditor, asset owner, and benefactor.”24 Plaintiff also alleges a “strong appearance of bribery” surrounding $400,000 in “loans” given to Justice Scarpino from Hudson Valley Bank, a bank in which Griffin is the controlling shareholder. As stated by plaintiff: Streng entered the picture only when the matters in Thomas Carvel’s estate were going to trial before Surrogate Scarpino. Defendant Scarpino failed to disclose conflicts with Streng and a strong appearance of bribey through about $400,000 in “loans” from Hudson Valley Bank, controlled by Griffin, who was appearing before Scarpino as witness and adverse litigant against Pamela.

Public records appear to show that Scarpino was given a $100,000 “loan” by Hudson Valley Bank prior to taking office. Neither Scarpino, nor Markewich, nor Streng, nor McCarthy, nor Aurnou, nor Griffin, ever revealed to Plaintiff Pamela Carvel that Griffin’s Hudson Valley Bank gave Scarpino that loan or additional loans. Griffin’s Hudson Valley Bank gave Scarpino another $200,000 “loan” in October 2001 to coincide with commencement of the first trials in Thomas Carvel’s estate. None of the Defendants revealed [that] yet another $100,000 “loan” in December2004 was given to Scarpino by Griffin’s Hudson Valley Bank just prior to the commencement of trials in Agnes Carvel’s estate.25

Plaintiff claims that as a result of this alleged bribery, Scarpino denied plaintiffs request for a trial by jury.26 Furthermore, two days before plaintiffs opposition to a motion for accounting and legal fees was due in the Thomas Carvel case, Streng moved to withdraw his law firm, McCarthy Fingar, from representing plaintiff, leaving her without legal representation.27 Despite Scarpino’s previous recusal in the McKeown case because of his close relationship with Streng, Scarpino did not decline to decide Streng’s motion to withdraw in Carvel’s case.28 Plaintiff further alleges that Scarpino and Streng corruptly agreed to apply Streng’s withdrawal of representation in the Thomas Carvel case to other matters, thereby depriving Pamela Carvel of due process.29

C. Plaintiff’s Alleged Injuries

It appears that plaintiff could properly allege a plausible section 1983 conspiracy claim, at least as to Griffin. According to plaintiff, Paul Amicucci is a member of Griffin’s law firm. After Agnes Carvel’s death, Griffin, allegedly acting on behalf of the Thomas and Agnes Carvel Foundation, sold Agnes Carvel’s 19-acre residence in Ardsley, New York, to Amicucci’s brother for two million dollars in 2006, although it was worth ten million dollars.3° On the same day, Amicucci’s shell company assigned the whole property back to Griffin through Hudson Valley Bank as a lease assignment for security for a mortgage from Hudson Valley Bank.31

Upon plaintiff’s discovery of these transactions in 2007, this “real estate scheme” was brought before Justice Scarpino who allegedly “did nothing.”32 With further elaboration, Scarpino’s handling of this “real estate scheme” may be a sufficient overt act done with the intention of causing plaintiff to be deprived of property without due process.33 These allegations could, with further elaboration, sufficiently allege the agreement and acting in concert elements of a section 1983 conspiracy claim, at least between Griffin and Scarpino, when coupled with the above-mentioned bribery allegations concerning $400,000 in “loans” made to Scarpino by the Hudson Valley Bank. Moreover, Griffin could be deemed to be a state actor under Dennis v. Sparks given his alleged collusion with a state-court judge who, but for absolute judicial immunity, would also be a defendant in this action.34 The question, then, is whether plaintiff can allege sufficient facts so as to include Griffin and the remaining Individual Defendants in a conspiracy to violate her constitutional rights.

In sum, the remaining individual Defendants could also be deemed to be state actors if there is a sufficient factual basis to conclude that they conspired with Justice Scarpino, or any other state actor, to deprive plaintiff of a constitutional right. However, the Complaint fails to adequately plead how plaintiff was deprived of her property without due process and what the Individual Defendants allegedly did, with whom, when, and what corresponding constitutional injury it caused.

IV. CONCLUSION

For the reasons given above, plaintiff’s section 1983 conspiracy claim is dismissed without prejudice. Plaintiff may amend her Complaint against the Individual Defendants within the next thirty (30) days.35 An amended Complaint must contain specific factual allegations, consistent with this Supplemental Opinion and Order, detailing the various conspiracies in which each of the Individual Defendants allegedly engaged and that resulted in a constitutional violation.36 The Clerk of the Court is hereby directed to reinstate this case to my active docket as to defendants Griffin, Markewich, Streng, McCarthy, and Aurnou.

Leave to amend should be freely granted when “justice so requires.” Fed. R. Civ. P. 15(a). See also Foman v. Davis, 371 U.S. 178, 182 (1962). This rule is especially applicable to pro se litigants. See Gomez v. USAA Fed. Scm’. Bank, 171 F.3d 794, 795 (2d Cir. 1999) @er curiam) (stating that a pro se complaint should not be dismissed without granting leave to amend when a liberal reading of such complaint “gives any indication that a valid claim might be stated”) (quotation marks and citation omitted, emphasis added). Although Gomez pre-dates the plausibility standard announced in Twoinbly and elaborated upon in Iqbal, the standard for granting leave to amend, albeit somewhat less relaxed now, must still permit pro se litigants at least one chance to “nudge[] their claims across the line from conceivable to plausible[.]” Twombly, 550 U.S. at 570.

I decline defendant Markewich’s suggestion to stay this case pending a decision on a motion to dismiss filed in a subsequently commenced district court action, Carvel v. Ross, 09 Civ. 722 (LAK). See 3/17/10 Letter from Philip Touitou, counsel to Markewich, at I.

Dated: New York, New York
April 6, 2010

SHIRA A. SCHEINDLIN,
U.S.D.J.

Appearances -Plaintiff (Pro Se):

Pamela Carvel
110 West Ninth Street, Suite 177
Wilmington, DE 19801-1618

For Defendant Markewich:

Philip Touitou, Esq.
Hinshaw & Culbertson LLP
780 Third Avenue, 4t1~ Floor
New York, NY 10017 (212) 471-6211

For Defendants Frank Streng and Joel Aurnou:

Joseph J. Brophy, Esq.
McCarthy Fingar LLP
11 Martine Avenue, I 2th Floor
White Plains, NY 10606 (914) 946-3700

FOOTNOTES:

1. Section 1983 states as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress 42 U.S.C. § 1983.

2. The Fourteenth Amendment to the United States Constitution provides, in relevant part, as follows: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. CONST., amend. XIV, § 1.

3. See Amended Complaint (“Compl.”) ¶¶ 172-203.

4. See Esposito v. State of New York, 07 Civ. 11612 (SAS); Bernstein v.Appellate Div. First Dep ‘t Departmental Disciplinary Comm., 07 Civ. 11196(SAS); McKeown v. State of New York, 08 Civ. 2391 (SAS); McCormick v. State of New York, 08 Civ. 4438 (SAS); and Capogrosso v. New York State Comm’n on Judicial Conduct, 08 Civ. 5455 (SAS).

5. See Esposito, et at v. State of New York, Nos. 07 Civ. 11612, 08 Civ. 2391, 08 Civ. 3305, 08 Civ. 4438, 08 Civ. 5455, 08 Civ. 6368, 2008 WL 3523910 (S.D.N.Y. Aug. 8, 2008). This Opinion also dismissed Peterec-Tolino v. State of New York, 08 Civ. 6368 (SAS). Bernstein was decided in a separate Opinion and Order, also dated August 8, 2008. See Bernstein v. State of New York, 591 F. Supp. 2d 448, 470 (S.D.N.Y. 2008) (granting defendants’ motion to dismiss, dismissing remaining defendants sua sponte, and denying leave to amend). Carvel, McCormick, Capogrosso, and Petrec-Tolino were dismissed sua sponte while Esposito and McKeown were dismissed pursuant to motions to dismiss, On appeal, the Second Circuit dismissed the appeal in Bernstein and affirmed this Court in Esposito, Capogrosso, and Peterec-Tolino by Summary Order. No appeal was taken in McCormick while the appeal in McKeown is pending.

6. See Carvel v. New York, No. 08-4576-CV, 2010 WL 889326, at *2 (2d Cir. Mar. 12, 2010).

7. Id. at *1.

8. In Dennis, the Supreme Court addressed the question of whether private parties accused of conspiring with a judge could be deemed to be acting “under color of’ state law for purposes of section 1983. See 449 U.S. at 27-28. In answering this question, the Supreme Court stated that:

to act “under color of’ state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting “under color” of law for purposes of § 1983 actions. Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or ajoint actor with the judge. But here the allegations were that an official act of the defendantjudge was the product of a corrupt conspiracy involving bribery of the judge. Under these allegations, the private parties conspiring with the judge were acting under color of state law; and it is of no consequence in this respect that the judge himself is immune from damages liability. Immunity does not change the character of the judge’s action or that of his co-conspirators. . . . Private parties who corruptly conspire with a judge in connection with such conduct are thus acting under color of state law within the meaning of § 1983 as it has been construed in our prior cases.

Id. at 27-29 (footnotes and citations omitted, emphasis added).

9. Bell At/i Corp. v. Twombly, 550 U.S. 544, 572 (2007). Accord Rescuecoin Corp. v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009).

10. Ofori-Tenkorang v. American Int’l Group, Inc., 460 F.3d 296, 298 (2d Cir. 2006).

11. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007) (quotation marks omitted).

12. See Twombly, 550 U.S. at 570 (“[WJe do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.”).

13. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation marks omitted).

14. Id. (quotation marks omitted).

15. Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002) (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999)).

16. Bussey v. Phillips, 419 F. Supp. 2d 569, 586-87 (S.D.N.Y. 2006) (quotation marks and citations omitted, alteration in original).

17. Ciambriello, 292 F.3d at 325 (quoting Dwares v. City of N.Y., 985 F.2d 94, 100 (2d Cir. 1993) (quotation marks, citations, and alteration omitted)).

18. Pangburn, 200 F.3d at 65 (quoting Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994)).

19. Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000) (“Thus, if a plaintiff cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those rights.”).

20. Bussey, 419 F. Supp. 2d at 587 (quoting Young v. County of Fulton,160 F.3d 899, 904 (2d Cir. 1998)). Accord Singer v. Fulton County Sheriff 63F.3d 110, 119 (2d Cir. 1995) (noting that a section 1983 conspiracy claim “will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right”) (citing Adickes v. 5.11. Kress & Co., 398 U.S. 144,
150 (1970)).

21. Plaintiff claims that Agnes’s death on August 4, 1998, was caused by a stroke “procured deliberately by stress from [defendant Williamj Griffin instigated through [the] Surrogate’s Court.” Compl. ¶ 62.

22. See id. ¶ 6 (“Defendants as individual lawyers, in various positions, created or furthered systemic corruption in New York State for the purpose of furthering deceptions to steal control of the Carvel family’s. . . assets — to the total exclusion of the legitimate asset owners and their successors in interest.”); ¶ 7 (“The fundamental mechanism that makes such corruption possible is the deprivation to Pamela Carvel (and others) of all legitimate avenues of redress of grievances or judicial abuses because of intentional and negligent collusion by State employees charged with protection of Pamela Carvel (and all other citizens).”).

23. Id. . ¶ 11
24. Id. . ¶ 29
25. Id. . ¶ 69-70.
26. Id. . ¶ 71.
27. Id. . ¶ 75

28. See id. ¶ 77. According to plaintiff Scarpino, in a written decision, “specifically denied responsibility over ethical and professional complaints against Streng and his firm.” fd. ¶ 24. Plaintiff fails to explain the significance of how and when Scarpino “denied responsibility” for Streng’s conduct and how this alleged denial violated any of her constitutional rights.

29. Id. . ¶ 77.
30. Id. . ¶ 84.

31. Id. . See id. Plaintiff does not identify to whom the mortgage from Hudson Valley Bank was made.

32. Id. ¶ 85. Once again, plaintiff fails to identify how this “real estate scheme” was presented to Justice Scarpino.

33. For example, plaintiff fails to explain the basis of her property interest in her aunt’s residence. Presumably, Pamela Carvel was the beneficiary, or a beneficiary, of Agnes Carvel’s estate but this is not specifically alleged in connection with the Ardsley residence.

34. I need not decide whether plaintiff has asserted plausible claims against Justice Scarpino as the Second Circuit held that he is shielded from suit under the doctrine of absolute judicial immunity. See Carvel, 2010 WL 889326, at *1.

****CLICK HERE TO SEE THE ORDER****

The Working Professional Poor

The Offer:

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The Response:

Jeannine,

Sorry but that rate is rejected and, frankly speaking, downright offensive.Thats less than I pay my own paralegals, and even less than someone makes after graduating from Devry.

Low wages, a lack of hours, no benefits, ballooning tuition debts in one of the highest COL/taxed areas in the nation.

Second Circuit Tries to Reconcile Strickland and Baldi Standards

On April 12, 2010, by a 2-1 vote the Court of Appeals for the Second Circuit Court in Rosario v Ercole (__F3d_ [2d Cir 4/12/10]) found that counsel provided ineffective assistance under the Strickland standard, but that the New York's holding to the contrary was not unreasonable. Both the majority and dissent discuss issues regarding the application of the New York and federal standards for ineffectiveness of counsel.

The majority held that despite the language in the New York Court of Appeals decision,People v Benevento (91 N.Y.2d 708, 714 [1998]), that “whether defendant would have been acquitted of the charges but for counsel’s errors is
relevant, but not dispositive" under the Baldi standard such a finding is, in fact dispositive under People v Baldi (54 NY2d 137 [1981]), since "it is hard to envision a scenario where an error that meets the prejudice prong of Strickland v Washington (466 U.S. 668, 687 (1984]) would not also affect the fundamental fairness of the proceeding."

The majority's holding makes does not discuss the 2009 holding of the New York Court of Appeals in People v Borrell (12 NY3d 365, 2009 NY Slip Op 03589 [2009]) in which the Court of Appeals held

While it may ultimately be determined that [the issue not raised was meritorious], as he now contends, and that the representation at issue would have been more efficacious had the issue been raised on the appeal, the relevant and, indeed, dispositive threshold issue on this coram nobis application is not whether defendant's representation could have been better but whether it was, on the whole, constitutionally adequate. This less exacting standard was met by counsel on the appeal.

For an excellent analysis of the Rosario decision, please read this posting at the Habeas Corpus Blog.

Празднование 62-й годовщины основания Израиля - в Manhattan Beach Jewish Center

Уважаемые господа! Я, адвокат Инна Ферштейн, член совета JCH of Bensonhurst, рада пригласить всех и каждого из Вас (вместе со своей половинкой) на незабываемое мероприятие, которое я организую в Manhattan Beach Jewish Center - празднование 62-й годовщины основания Израиля, изюминкой программы которого станет выступление полковника ЦАХАЛа (Армии обороны Израиля) Бенци Грубера.

continue

Ass Clown

"TTT,

Instead of constantly putting a hatchet to the firms and staffing agencies, why don't you focus instead on some of the psychoids, perverts, and malcontents that somehow get staffed on these projects and make life a living hell?

I am currently on a nice foreign language review gig that was generally going well up until today. Some ass clown (who was probably playing around on some illicit website) downloaded a virus onto the server and crashed the entire project's network system. How about before we hire someone we run their name through a sexual perversion watchlist? Not only did dozens of people lose out on an opportunity for hours today, but just wait until the client finds out about this. Just another wonderful day in the oh-so "distinguished" practice of law."

Court of Appeals Apparently Recognizes Inferential Objections

In the past the Court of Appeals has held "a party's failure to specify the basis for a general objection renders the argument unpreserved for [that] Court's review (see, People v Dien, 77 NY2d 885, 886; People v Tevaha, 84 NY2d 879; People v Ford, 69 NY2d 775, 776)." People v Tonge, 93 N.2d 838, 839 (1999). So one might think that where counsel failed to place any objection on the record the issue was not preserved for review as a matter of law.

But that is not what the Court held in People v Caban (2010 NY Slip Op 02674 [4/1/10]) in which the People moved before trial for the admission of evidence about an earlier driving incident,

and the trial court denied the motion insofar as it related to the People's case in chief. The parties interpreted this ruling differently: The prosecutor thought she was not barred from introducing, on her case in chief, proof that defendant's license was suspended, while defense counsel thought that the court's ruling excluded that evidence also. The conversation in which the parties disagreed was off the record, but was recited to the court on the record by the prosecutor, who asked the court for clarification; the court resolved the ambiguity in the People's favor.

The Court held that it

is true that the defense lawyers never said on the record "we object to this evidence," but they did not have to, because their objection was clear from the prosecutor's summary of their position. Because the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, preservation was adequate. The Appellate Division's reversal was therefore based on a question of law that we may review.

Thus, the Court held, without citing any authority, that the District Attorney's summary of the dispute constitutes the required objection.

I expect this holding to be cited frequently by appellate counsel. And not just in cases in which, like Mr. Caban's the People are urging that the matter was preserved so that the Court of Appeals would have authority to reverse an Appellate Division's reversal (as the Court did in Mr. Caban's case).

The Price of Success

Everything has a cost. Nothing is ever truly free. I tell people beware of freebies. Beware of the free lunch or the easy anything. Things of "value" have a price. Of course, the word value is the kicker.

So what is it that we value? First and foremost, I think that those that are building a future for themselves value their name and reputation. I guess if you are not planning to venture forward to bigger and better things having a lifetime criminal conviction on your permanent record would not matter. For those that are dreaming of jobs, positions, professions, prospects, and opportunities their life file of pluses and minuses can impact their future choices and their options.

People ask me many of the same questions again and again. The BIG Question in DWI defense: What is the difference between a DWI and DWAI? The main difference, the crucial difference is that one makes you a criminal (a person with a criminal conviction) on their record and one does not. The money and other associated pains, as in the fines, state surcharges, DMV fees, classes, etc. are not that different between the DWs (the driving while...).

If you want to fight the charges. To contest the evidence. To challenge the government. All of that comes with a price. It takes time, money, and effort. In some cases, we need expert witnesses. We need experts to testify about your asthma, your reflux, your diabetes, your medications for allergies, and any other reason why your breath test result (your BAC) was what it was, and not because you were intoxicated. Defenses like these do not come cheap.

Wars are never easy or inexpensive, and trials are wars. The government has the power to charge and prosecute, and the resources to accomplish this. They often exercise this power without discretion. Those that are naive believe that their lifetime of good work, achievement, standing, and clean living will somehow negate the government's intent on pursuing prosecution of crimes.

The prosecutors do not care about any of that. Their focus is always on: can they make out their case against you? Can they make the charges stick? In theory, they are supposed to seek justice but in truth they seek convictions.

New York State DWIs are not commonly (rarely) reduced to non-criminal dispositions. Those with BACs of 0.12 or higher should brace for a bumpy ride. In 2010, refusal (without a breath test) cases are being prosecuted just as seriously.

I am committed to the challenge of DWI defense. I have a wife and four kids and they all pay the price of my learning. Getting to and attending conferences thousands of miles away comes with a large price. Many long weekends spent in airports, planes, hotels, and conference centers takes it's toll on marriage and family life. I believe learning can never and should never end.

This year, I have already been to three Gerry Spence Trial Lawyer College conferences (one in January in California, another in Texas, and another in Washington state). I am about to jump on a plane in the morning for the annual Texas Criminal Defense Lawyers DWI seminar in New Orleans, Louisiana. It is called "Mastering Scientific Evidence" and we will be working with the breath machines. These are not sit in the room and take notes types of get togethers. We have mock DWI trials, we have hands on work with the Datamaster breathalyzers, and we practice skills building exercises. Defending DWI cases demands hard work, diligent focus, and persistent effort to be successful. I invest in success so that when my clients place their trust and faith in me as their attorney it stands on current education and experience.