November 2011 Archives

#30: The Fourth Department, Part 5 of 5

November 30, 2011

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The Fourth Department is found in the western part of the state though, oddly, it does not include a large chunk of the Southern Tier while it does include the western Adirondacks.

As I mentioned in a previous blog post, it would seem to make more sense for the Third Department to transfer the six (6) eastern Southern Tier counties of Broome, Chemung, Cortland, Schuyler, Tioga, and Tompkins to the Fourth Department while the Fourth Department should transfer the three (3) western Adirondack counties of Herkimer, Lewis, and Oneida to the Third Department. That would certainly provide a more logical demarcation of central and western New York from the eastern portions of the state. And in exchange for the city of Binghamton, in Broome County, the Third Department would get the twin cities of Rome and Utica, in Oneida County.

It's certainly within the Legislature's prerogative to do so (pursuant to article 6, section 4(a) of the New York constitution), though, given the longevity of the current arrangement, it might be best not to screw around with the current department system, since it does seem to work rather well. Another reason not to change the current system is that the decisions from the Third Department not only seem to be more numerous, they are definitely more comprehensive. I can't tell you how many times reading a Fourth Department decision feels like reading tea leaves; many of the decisions are decidedly unhelpful. If and when I get around to reviewing Fourth Department decisions, you'll see what I mean.

Continue reading "#30: The Fourth Department, Part 5 of 5" »

#29: The Third Department, Part 4 of 5

November 29, 2011

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The Third Department is home for me. In the beginning of my career, I practiced in the Third Department. I then moved Downstate and practiced exclusively in the First and Second Departments. I've never practiced in the Fourth Department, although I did go to law school there (Syracuse University College of Law). I've been back home in the Third Department for almost ten years now.

The Third Department covers a huge swath of eastern Upstate New York and is, in fact, the largest of the four departments, in area. Yet despite being the largest, it is also the least populous, with 2,511,579 people being spread over 25,362 square miles, stretching all the way from Pennsylvania to the Canadian border.

Continue reading "#29: The Third Department, Part 4 of 5" »

#28 Thank You, WikiLeaks, For Exposing Governments As Liars!

November 27, 2011

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It's a wonderful thing when a real firebrand takes the First Amendment at face value and actually exercises those rights to the fullest extent. You know - like the Founding Fathers had hoped. It is even more wonderful when that firebrand is lauded for it and wins a major award.

Of course, the irony of the situation is that I am speaking about Julian Assange, an Australian citizen, and WikiLeaks, an effectively Australian entity. These days, it seems, one has to leave America or turn to foreign citizens to fully understand what freedom of the press means.

So, what did WikiLeaks win? It won the Australian equivalent of the Pulitzer Prize, the Walkley Award for most outstanding contribution to journalism.

I would say more but my favorite constitutional lawyer pretty much says it all in today's column.

I think most people find it exceedingly difficult speaking truth to power, if only because they are so fearful that those in power will use any means, lawful and unlawful, to crush dissent. Such paranoia will often dissuade most people from exercising their constitutional rights. But not Julian Assange.

Continue reading "#28 Thank You, WikiLeaks, For Exposing Governments As Liars!" »

#27: The Second Department, Part 3 of 5

November 27, 2011

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The Second Department, together with the First Department, is generally what is referred to when a person says the word "Downstate". Some might further define Downstate as including Ulster and Sullivan counties, from the Third Department, and they would have a very good point.

The best rule of thumb I have ever heard of for defining the boundary between Upstate New York and Downstate New York is this: merely extend the perfectly straight line of the boundary between New York and Pennsylvania, which creates the Southern Tier, eastward through the counties of the lower Hudson Valley - Delaware, Sullivan, Ulster, Dutchess, and Columbia - until you reach the boundary between New York and Connecticut. Those counties which are north of that imaginary line are Upstate New York and those south of it are Downstate New York. And wherever the greater part of those five (5) counties lies determines whether they are Upstate or Downstate. Therefore, Delaware and Columbia counties are Upstate but Sullivan, Ulster, and Dutchess counties are Downstate. Very simple.

Continue reading "#27: The Second Department, Part 3 of 5" »

#26: The First Department, Part 2 of 5

November 27, 2011

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I tend to be a very visual person and whenever I am asked to think of something, I find that it is always helpful if I am first provided with some sort of visual representation of the thing. If you're talking about electrons, I want an image of their orbital shells. If you're talking about how species are related, I want an image of their common ancestry. And if you're talking about places, I want to see a map.

So, once I start blathering on about judicial departments, judicial districts, and the various counties of the state of New York, I think it's only fair to provide you with a map of the places I am referring to. This is especially useful when referring to trial courts and their decisions since there are sixty-two (62) counties within the state and it can become a bit confusing. So, if I intend to refer to any one county in the state, I will provide a general map of that county, relative to the rest of the counties within the state.

Continue reading "#26: The First Department, Part 2 of 5" »

#25: The Unified Court System, Part 6 of 6: The Oddities

November 25, 2011

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No one likes being called an oddity and I am sure these courts are no different. However, they are odd insofar as they are both unique and not readily defined as courts. Some are actually quite new to the court system.

15. Drug Treatment Courts

These "courts" are also called Drug Courts. They exist in every county of the state and their purpose is to rehabilitate drug addicts who have been charged with various non-violent criminal offenses. These courts are not your typical adversarial proceedings. Instead, there is a "team approach" to those individuals who have voluntarily entered the court (by signing a contract). The team most often consists of the judge of the Drug Treatment Court, attorneys appointed to the court, Department of Social Services caseworkers, Probation personnel, various treatment providers, counselors, and, sometimes, personnel from the District Attorney's Office.

Normally, I advise my clients to steer well clear of this "court" if they are able to. Why? Because it may not be for every client and because "the law" basically does not apply in this court. "The law" is really whatever the court decides it is, relative to each participant. This court micro-manages the lives of those voluntarily within its jurisdiction. This court will direct what medications you are able to take, where you can live, with whom you are able to live, and what employment you are required to engage in and when. And you will be subjected to very frequent and random drug testing, usually in the form of urinalysis. And it can take as long as two (2) or more years to "graduate" from Drug Treatment Court. It is very much like a civilian form of boot camp. It attempts to break drug addicts of their addictions and rebuild their lives, re-integrating them into society as constructive and productive, law-abiding citizens.

Continue reading "#25: The Unified Court System, Part 6 of 6: The Oddities" »

#24: The Four Departments, Part 1 of 5

November 25, 2011

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The Four Departments of the Appellate Division - the First, Second, Third, and Fourth - are the appellate courts of the state of New York. These courts create a massive volume of caselaw which attorneys need to read and digest, in order to know the state of the law in the area of law in which they practice.

Because the Court of Appeals issues relatively few decisions compared to the four departments, the four departments are often in the position of having to interpret the laws in new ways or of having to adjudicate matters not yet dealt with by the Court of Appeals. On those occasions where the four departments have dealt with a similar matter but have come to different conclusions of law (sometimes radically so), the Court of Appeals gets involved to "harmonize" the departments so that the law, at least within a given area, is more uniform throughout the trial courts of the state.

Continue reading "#24: The Four Departments, Part 1 of 5" »

#23: The Unified Court System, Part 5 of 6: The Court of Appeals

November 25, 2011

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Not many courts left. It's the home stretch. What remains is a single court of overwhelming significance to us all and several small courts of overwhelming significance to a select few. One governs the general course of the lives of every citizen of the state of New York, while the others govern the day-to-day existence of those citizens who find themselves, usually through their own poor choices, under the court's direct supervision.

14. The Court of Appeals

The Court of Appeals is the end of the line in the state court system. There is no higher court. Appeals come directly from the four (4) judicial departments of the Appellate Division, in most instances. From this court are issued some of the most comprehensive decisions that determine how we, as citizens of this state, live out our lives.

This court has seven (7) judges appointed by the governor for fourteen (14) year terms.

The courthouse is located in Albany, New York.

The decisions handed down by the Court of Appeals are few (compared to the volume found in the Appellate Division) and they are often extremely dense and very difficult to read and understand. I find that I have to read Court of Appeals decisions several times before I can begin to understand what I think the court is trying to convey.

Continue reading "#23: The Unified Court System, Part 5 of 6: The Court of Appeals" »

#22 Reasons To Be Cheerful, Part 3

November 24, 2011

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"Why don't you get back into bed!"

I looooooooooooooove Thanksgiving. Why? Because it is one of the few days, the genuinely few days, when I can forget about time and rules and responsibilities and clients and courts and children and just pull the covers up over my head and sleep for as long as I damned well please! I can slip out of my staid adult existence for one, solitary day. Just one. And I can just relax and be as lazy as I want to be. My default setting suddenly becomes "whatever" and "manana".

And, when I finally roll out of bed, usually to the amazing aroma of a slow-roasting 22-pound gobbler and chestnut stuffing nearing perfection, I revert to the sixteen year-old forever stuck inside me. And what that sixteen year-old wants most of all is lots and lots of loud, rocking music. Preferably turned all the way up to eleven. This is usually when my son inquires "Mommy, what's the matter with Daddy?" Cue the eye roll. Just roll with it, kid. This'll be you in a few all-too-short years. Learn to love it.

And, pursuant to the perverse tradition of my formative years, the one - The ONE - song I simply MUST hear first is the one song that has come to be known to me as My Thanksgiving Song (it also doubles as My Christmas Song). That would be the inimitable Ian Dury and his irrepressible and funky "Reasons To Be Cheerful, Part 3."

Continue reading "#22 Reasons To Be Cheerful, Part 3" »

#21: Calm Like A Bomb: "... Or Does It Explode?"

November 24, 2011

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We live in interesting times. And because they are so damned interesting, it's time for another random rant.

Most of the time, I find myself in court or on the phone with attorneys or clients. Or I will spend the majority of my day in my office, with the door closed and the phone on vibrate so that I can get as much of my paperwork done as possible, without interruptions. I also tend to work from 9:00am to about 9:00pm, so I rarely watch television.

But I do touch base with key web sites on the internet from time to time. And, lately, I'm not at all happy with what I am discovering is happening in this country.

As the title of this post alludes, I've got Rage Against The Machine making my ears bleed as I ponder one of my favorite Langston Hughes masterpieces. And I am seething.

Why? Because of this:

Continue reading "#21: Calm Like A Bomb: "... Or Does It Explode?"" »

#20: The Forgotten Peoples, Part 2 of 2

November 23, 2011

In addition to the ten (10) reservations and eight (8) federally-recognized tribes within New York, there are many other Native American tribes in the northeast that run the gamut from federally-recognized to state-recognized to wholly unrecognized by both the federal government and the respective states in which they are found. These peoples still very much exist, and in every state in the union. Their continued existence, however, appears to depend greatly upon the level of recognition they receive from other polities.

Many of these tribes have tribal constitutions, governments, and courts, and many do not. To ascertain this specific information, it is always best to contact a given tribe directly, through their web site (if they have one).

1. Other Federally-Recognized Native American Peoples of the Northeast

Of the seventeen (17) federally-recognized tribes of the northeast, New York has the most, at eight (8): the Cayuga, Oneida, Onondaga, St. Regis Mohawk, Seneca, Shinnecock, Tonawanda Seneca, and Tuscarora. Maine has four (4) tribes, Connecticut has two (2), Massachusetts has two (2), and Rhode Island has one (1).

There are no federally-recognized tribes in the states of New Hampshire, New Jersey, Pennsylvania or Vermont.

Continue reading "#20: The Forgotten Peoples, Part 2 of 2" »

#19: The Unified Court System, Part 4 of 6: The Appellate Division

November 21, 2011

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Finally, we reach what I consider to be the most interesting part of the Unified Court System: the Appellate Division - where the overwhelming majority of the caselaw is made in the state of New York. In fact, one of the primary purposes of this legal blog is to monitor and review the various decisions issued by the four (4) appellate courts, specifically of the Third Department, where I live and practice.

13. The Appellate Division

The Appellate Division is the collective name given to the appellate courts established through Article 6, Section 4 of the constitution of the state of New York. The constitution divides the state into four (4) judicial departments.

The first judicial department, known as the First Department, consists of the counties within the first judicial district. The First Department consists of seven (7) justices of the Supreme Court, of which no more than five (5) may preside in any given case. There are only two (2) counties within the First Department, all of them Downstate and in New York City.

Continue reading "#19: The Unified Court System, Part 4 of 6: The Appellate Division" »

#18: The Forgotten Peoples, Part 1 of 2

November 20, 2011

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In the course of listing and describing the various courts of the Unified Court System, it occurred to me that there are at least three (3) court systems operating within New York state. Being a part of a federal republic, New York is also part of the federal court system, specifically the Second Circuit (with its six (6) district courts, four (4) in New York, and one (1) each in Connecticut and Vermont). New York has its own court system as well. But there is a third court system that is rarely addressed. It is the tribal courts of the Native Americans found within New York state.

How often do you think about Native Americans? Probably very seldom. Perhaps you think of them most of all during this time of year, when we hear again the old tales of Squanto and how he taught the Pilgrims how to plant corn, thereby saving them from starvation. However, we rarely look beyond the Thanksgiving fables and examine the holocaust that was visited upon these peoples by the arrival of European colonists to these shores, especially through infectious diseases.

Continue reading "#18: The Forgotten Peoples, Part 1 of 2" »

#17: The Unified Court System, Part 3 of 6: The Five Unique Courts

November 19, 2011

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Continuing our introduction to the fourteen (14) different kinds of courts in the state of New York, the next five (5) courts are unique insofar as they are only particular to a certain part of the state.

8. District Courts

There are only two (2) District Courts in the entire state, both in the Second Department, on Long Island: one in Nassau County, covering the entire county, and one in the western part of Suffolk County. The implementing legislation that establishes the procedures found in the district courts is the Uniform District Court Act. The court's procedures are governed by Part 212 of the Uniform Rules of Trial Courts (22 N.Y.C.R.R. 212).

District Courts have monetary jurisdiction up to $15,000.00. Furthermore, at least in Nassau County and the western part of Suffolk County, Small Claims Courts are found in the District Courts and not in the town, village, and city courts. The monetary jurisdiction of the small claims part is up to $5,000.00. Actions involving money claims for $6,000.00 or less may be subject to compulsory arbitration, pursuant to CPLR §3405. In almost all circumstances, service of process is limited to the county in which the District Court is found.

District Courts have criminal jurisdiction over traffic infractions, violations, misdemeanors, and pre-indictment felonies.

Attorneys are elected to serve as judges on the District Court for a term of six (6) years.

Appeals go to the County Court unless an Appellate Term exists. Since the two (2) District Courts are located in the Second Department, and the Second Department has an Appellate Term, all appeals go to the Appellate Term.

An interesting aspect of this particular court is that it can theoretically be established throughout the state of New York, but only by local referendum, pursuant to the state's constitution.

Continue reading "#17: The Unified Court System, Part 3 of 6: The Five Unique Courts" »

#16: Some Thoughts On Family Court

November 18, 2011

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When I started out practicing in family law, about ten (10) years ago, one of the first things I encountered was the varying number of judges on the various courts. It didn't seem to make much sense - until I found myself in the busier courts. And from a review of the sixty-two (62) family courts, it becomes clear that the more populous counties have more judges.

1. New York City

Within New York City, the Family Courts of the five (5) boroughs are granted no more than forty-seven (47) judgeships, pursuant to FCA §121. Though, I suspect these Family Courts get around this law merely by designating judges from other courts as acting Family Court judges. This would certainly make sense, given the herculean caseloads of what is commonly referred to as the New York City Family Court.

Outside of New York City, FCA §131 applies to the number of judgeships in Family Court.

Continue reading "#16: Some Thoughts On Family Court" »

#15: The Unified Court System, Part 2 of 6: The Four "County Courts"

November 17, 2011

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While these four (4) courts are not "county courts", they are nonetheless found in every county of the state - with the exception of County Court, ironically enough. They are most often found together in the same building or complex of buildings. These four courts are the workhorses of the Unified Court System, and they are where the majority of litigation takes place in New York. By the time most people reach middle age, they have probably dealt with at least one - or possibly all - of these courts. These courts are very much a part of the fabric of American life today, and it is an honor and a privilege to be able to practice law in them.

County Court is often seen as The Criminal Court - despite having substantial civil jurisdiction. Family Court is often considered the most people-friendly court as it requires no fees for filing petitions (unlike the other courts) and it handles many - but by no means all - matters concerning families. Supreme Court is perceived as a commercial court - yet divorce actions are brought there as well. And Surrogate's Court is viewed as Dead Persons' Court - though adoptions are often held there.

I think you will find that the Unified Court System is unified in name only.

Continue reading "#15: The Unified Court System, Part 2 of 6: The Four "County Courts"" »

#14: Theory Versus Practice

November 16, 2011

I'm normally a very quiet kind of guy. And like most people, I have a temper. However, it's one that I almost always keep under control.

But not now. Not today.

Because I'm angry. REALLY angry. That's right. You heard me.

Because I have this thing about freedom of speech. Maybe it's just me, but I think it's a big deal. Yeah. Actually, I think it's a really, really big deal. And it's important enough to me to interrupt the casual flow of this blog with a rant. Because, but for my own freedom of speech, this blog would not exist.

I'm about to break one of the three (3) cardinal rules that I try never to break. I call these rules the PRS triplets. What are the PRS triplets? They are politics, religion, and sexuality. Venturing into any of these three areas is always problematic, in general, and it is never a good idea to do professionally. It instantly creates an Us versus Them dynamic and mentality and suddenly all thinking loses its grayness and becomes artificially black and white. And if there is one thing I hate more than anything else, it's thinking in black and white. Gray is the order of the day. Life is far too complex to be reduced to black and white, right and wrong, us and them.

Continue reading "#14: Theory Versus Practice" »

#13: The Unified Court System, Part 1 of 6: The Three Smallest Courts

November 14, 2011

13 Post Depositphotos_4517444_XS.jpgPerhaps some introductions are in order with regard to the at least eighteen (18) different kinds of courts in the state of New York. Believe it or not, there is some method to the madness of the structure of the court system in this state, otherwise known as the Unified Court System.

The smallest courts are those of the various municipalities of the state of New York, namely the 932 towns, the 555 villages, and the sixty-two (62) cities. However, New York City is so huge, it has its own massive court to itself (actually - two of them!).

Also, as regards all of the blog posts in this particular series - and in fact the entire blog itself - my primary reference source is The Attorney's Bible - New York Practice, Fourth Edition, by the esteemed and accomplished David D. Siegel, Distinguished Professor of Law at Albany Law School of Union University. If you practice law in New York, you probably own several of the editions of this book. If you are an attorney and you do not own this book, you are probably committing malpractice. What this blog merely glosses over, this book covers with a depth and breadth and precision that is a marvel to behold. And the last time I checked, you can pick up a copy on Amazon for about $50.00. And I assure you that it'll be the most worthwhile $50.00 you ever spend.

Another fantastic reference source is none other than the collected laws of the state of New York, as found in what are commonly referred to as the McKinney's Statutes, published by Thomson West.

Attorneys are said to "read the law". When we do, these two sources are what we read the most.

Continue reading "#13: The Unified Court System, Part 1 of 6: The Three Smallest Courts" »

#12: I Love New York

November 6, 2011

12 Post 2011-11-06 New York State Colored & Named.jpgFunny. I spent a good part of my youth doing everything in my power trying to get the hell out of this state. And I spent the better part of my adulthood being very glad that I never left for good. New York is home and I could never imagine ever leaving it, no matter how high the taxes might climb, no matter how long the winters might last, no matter how deep the snow might get, and no matter how cold the Februaries might prove.

Hey, here's some wonderfully useless trivia for ya: how many counties are there in the state of New York? Probably more than you think. Interestingly enough, there are exactly as many counties in this state as there are cities. 62. Yes, 62 (there's going to be a quiz later on).

And some of those counties are even older than the state itself, if you can believe it! Same goes for some of those cities.

And now, for a short history lesson ...

Continue reading "#12: I Love New York" »

#11: You Wouldn't Go To A Veterinarian For A Physical ... Would You?

November 2, 2011

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I didn't think so. Well, if that's the case, why the heck would you go to a police officer for legal advice? And whereas a veterinarian probably has an interest in referring you to a reputable physician, thinking you may remember him when it comes time for your dog's next check up, a police officer very often has a vested interest in NOT referring you to an attorney. Why? Because a docile, fearful motorist who is ignorant of his or her rights is much more likely to make the police officer's job that much easier - all to your distinct disadvantage. Besides, attorneys only complicate matters by protecting the rights of their clients by advising them so that they may be able to make timely and informed decisions at crucial junctures in their lives. And we couldn't have that now. Could we?

I bring this matter up in reference to my initial blog post concerning requesting supporting depositions of the police officer issuing the traffic ticket for a speeding violation. I've actually had several police officers - and some attorneys, if you can believe it - inform me that I am quite wrong about this. Um ... no. I am not wrong about this. And like a veterinarian commenting on your liver enzymes, such information should be taken with an extremely liberal dose of salt - and a large pair of boots.

Continue reading "#11: You Wouldn't Go To A Veterinarian For A Physical ... Would You?" »