Before we move into February, why not another caselaw round-up? There are literally hundreds more of these cases to get to before I can start yammering on about 2013 caselaw. There are also some interesting changes to the law in 2013, which I hope I will be able to get to at some point. For now, let's get back to finishing up January 2012.
January 2013 Archives
Yes, I know, it's been a while. I definitely went waaaaay off on multiple tangents there for the last several months. However, with the new year having come and gone already, I wanted to get back to the focus of this blog: caselaw round-ups (specifically of and for the Third Department). And, in continuing this series from where I left off back in June (see post #182), I realize I am now going to have to play catch up, since I haven't finished analyzing cases from over a year ago. Of course, this means I'll have to find the time to start posting more than once per day. We'll see.
68. Jack Klugman, 90, April 27, 1922 - December 24, 2012:
Actor; American movie, stage, and television actor; natural causes
Obviously, as a kid of the 60s and 70s, I remember him best as Oscar Madison from "The Odd Couple", probably his most famous and most memorable role.
The son of Russian Jewish immigrants, after service in World War II, he decided he wanted to become an actor. He had numerous roles on stage and on television as well. He also starred in the classic "12 Angry Men" (1957). I first saw him in several episodes of "The Twilight Zone".
In 1965, Klugman replaced Walter Matthau in the original Broadway production of "The Odd Couple", and seemed a natural when that production was later adapted to television, in 1970. The series ran for five seasons. He played the perfect foil to Tony Randall's Felix Unger. And, of course, the theme to the show is unforgettable.
In 1976, Klugman starred in the series "Quincy, M.E.", which I thought was atrocious. However, it was fun to watch to try to mimic what we considered Klugman's over-the-top, hammy acting (something we later did with any William Shatner television episode). In fact, I remember my first drinking game started with this wretched, formulaic series.
While I mostly lost track of him in the 80s, I would catch him guest-appearing from time to time on various shows.
64. Lee Dorman, 70, September 15, 1942 - December 21, 2012:
Musician; American bass guitarist; natural causes
Remembered best for his membership and musicianship in the bands Iron Butterfly (another band that missed out on Woodstock) and Captain Beyond. So, tip your hat, fill your glass, put on "In-A-Gadda-Da-Vida", and raise your lighter for the man. And then follow-up with "Dancing Madly Backwards (On A Sea Of Air)", from Captain Beyond. His bandmate, Larry Reinhardt, died earlier in the year, back in January.
61. Ed Cassidy, 89, May 4, 1923 - December 6, 2012:
Drummer; American jazz and rock drummer; cancer
Think bald and black: he liked to sport a shaved head and dress all in black. At least, as one of the founders of the group, Spirit, that was his schtick. As such, his nickname was "Mr. Skin" - also the name of one of Spirit's hit singles. How big was Spirit, back in the day? Big enough to have Led Zeppelin open for them. The only reason Spirit weren't bigger than they were is that they happened to be stupid enough to turn down the slot before Jimi Hendrix - playing at Woodstock! Spirit's masterpiece is the psychedelic "Twelve Dreams Of Dr. Sardonicus."
57. Dennis "Stalking Cat" Avner, 54, August 27, 1958 - November 5, 2012:
Body modifier; suicide (?)
This is one of those obituaries that involves a triple-take. At first glance, you think your mind is playing tricks on you. At second glance, you think that someone is putting you on as surely, this must be some kind of sick joke. At third glance, after having read the entire obit, you're left thinking (or, in my case, SHOUTING OUT LOUD) "WTF!?" Because, this is surely one of the Signs of the Apocalypse.
Are you ready for this? This dude apparently spent "considerable resources to surgically modify his body to resemble that of a tiger." Yes, you read that right. A tiger.
What really creeps me out is that there is apparently a sub-sub-culture where this sort of thing is not only "normal" but where such people thrive. Yup: I just don't get it. Nor do I want to.
55. George Stanley McGovern, 90, July 19, 1922 - October 21, 2012:
Politician; American World War II bomber pilot, preacher, history professor, U.S. Representative, U.S. Senator, Democratic nominee for President in 1972, historian, and statesman; cancer
Where does one begin? I guess you could say he was a humble Methodist, and nominal Republican, from the plains of South Dakota, who made good - as a Democrat.
Apart from, perhaps, Walter Mondale and Michael Dukakis, McGovern was easily the least popular nominee for U.S. President put forward by the Democratic Party in modern American history. And, yet, for that era of American history, he was very likely the conscience of the new generation, sick of war and of American overreach abroad.
His achievements are great and distinguished: battle-hardened pilot of the "Dakota Queen", a B-24 Liberator during World War II, with several honors; tireless champion of South Dakota farmers; dauntless fighter of hunger in America and abroad; vehement and outspoken critic of American foreign policy in general, and its war in Southeast Asia in particular; liberal firebrand; and august statesman.
To those of us who lived in the 60s and 70s, he will never be forgotten.
52. Alex Karras, 77, July 15, 1935 - October 10, 2012:
Actor; American football player, professional wrestler, television and movie actor, and commentator; kidney failure
You may have noticed that damned few sports stars ever make it into my memorials, and that's because I've never been a fan of sports. From my perspective, it's sheer entertainment - and not entertainment I much enjoy.
However, every now and then, someone will be able to translate the fame on the field to fame off the field. And that is the case with Alex Karras.
Karras began as a Hawkeye, at the University of Iowa. He later helped to lead his team to victory in the 1957 Rose Bowl, over Oregon State, becoming a runner-up for the Heisman Trophy. He was a first round draft pick of the Detroit Lions in 1958, ultimately playing for twelve seasons.
Along the way, Karras was also a professional wrestler ("Dick The Bruiser"). Then it was a (very memorable) cameo as "Mongo", in "Blazing Saddles", in 1974, and then off to Monday Night Football. He also had small roles in "Porky's" (1982) and "Victor Victoria" (1982). However, he won the most fame as George Papadapolis, in the (execrable) television series "Webster".
49. Michael Clarke Duncan, 54, December 10, 1957 - September 3, 2012:
Actor; American movie, television, and voice actor; heart attack
I was shocked by his death, but, in retrospect, I guess I shouldn't have been. Judging by his size, he was just a heart attack waiting to happen.
The man was nothing less than a human wall. And he made his mark in this world in his stunning role as John Coffey, in the movie adaptation of Stephen King's "The Green Mile" (1999) (one of my favorite movies).
As you might imagine, his career in Hollywood began by playing bouncers in various movies. His first big role was as Bear, in the otherwise crappy movie, "Armaggedon". And then came "The Green Mile", for which he was nominated for Best Supporting Actor (losing out to Michael Caine as Dr. Wilbur Larch in "The Cider House Rules").
Later, Duncan would go on to star in such other features as "The Whole Nine Yards" (2000), "Planet Of The Apes" (2001), "The Scorpion King" (2002), "Daredevil" (2003), "The Island" (2005), "Sin City" (2005), and "Talladega Nights" (2006), among others.
45. Scott McKenzie, 73, January 10, 1939 - August 18, 2012:
Singer; American singer and songwriter; complications of Guillain-Barré syndrome
While we all know that the sixties died some time ago, the ghosts of the sixties lingered on. Well, another of those ghosts has moved on for good. I'm both old enough and well-travelled enough to actually remember adults walking through the streets of San Francisco with flowers in their hair. All thanks, in part, to this man. This is the guy who sang the anthem for flower-children everywhere: "San Francisco (Be Sure To Wear Flowers In Your Hair)". Back in the late 60s, you heard this song everywhere and all the time.
His other claims to fame are in helping to launch Anne Murray's career, and in co-writing the Beach Boys' smash 1988 hit, "Kokomo".
41. Marvin Hamlisch, 68, June 2, 1944 - August 6, 2012:
Composer and conductor; American musician; respiratory arrest
How do I know Marvin Hamlisch? Well, like most people my age, I didn't know who the guy was until heard some of his works. I could probably never pick this guy out in a crowd. Hell, I'd probably think someone was pranking me if the guy came right up to me and introduced himself. Just zero visual acknowledgment.
However, that unfamiliarity washes away upon hearing such songs as "Sunshine, Lollipops, and Rainbows", "The Entertainer", and "Nobody Does It Better", the theme song from the movie "The Spy Who Loved Me". Upon seeing the film "The Sting" and hearing its wonderful ragtime soundtrack, Marvin Hamlisch was on my radar. Thanks to him, I mastered playing "The Entertainer" on alto saxophone as a kid.
Whether I'm having a bad day or I'm in a particularly reminiscent mood, I find I like the "old music" far more than I do the new. And I realize that it's all because the "old music" is a part of me and my memories in ways that any new music can likely never be. I also find it amusing when I turn on younger people to the amazing music of my youth. Many are blown away by it and then they suddenly realize that they have been missing out on a very great deal. Next thing I know, they are asking me to recommend all sorts of artists and albums. And so it begins. I remember those days of musical exploration very fondly. Which is why I post the songs here every month.
For me, the most amazing thing is how quickly all those years have passed. Why, just the other day my head was wrapped in audiophile headphones, listening to ...
What can I say? I simply couldn't resist continuing this series, but in a more slimmed-down format. Today's music (for the most part) just doesn't measure up to the wonderful music I grew up on. And, today, with the advent of all sorts of amazing websites and technologies, I have the chance to gather together again all of those great songs from a lifetime ago. Some have aged well. Some ... not so much. But it's all good.
So, while it may not be your cup o' tea, and it may just sound like golden oldies to some, this stuff brings back some heady memories of what it was like awakening to the world of rock. I've even gone so far as to turn these playlists into actual iTunes downloads, and then I listen to them all in the car, going back and forth to court (and lemme tell ya - that playlist from #260 kicks ass!). I'm pretty sure my soon-to-be teenaged son thinks I've lost my mind. I know my wife sure as hell thinks so.
So ... this is what it feels like to go through a mid-life crisis. Cool!
And here is what I was listening to, way the back in January, 1973 ...
CHECKLIST FOR CRIMINAL APPEALS:
Step 80: 800.14(g): Where Only Sentence in Issue:
"When the sole question raised on appeal concerns the legality, propriety or excessiveness of the sentence imposed, the appeal may be heard upon a shortened record on appeal consisting of the notice of appeal, sentencing minutes and minutes of the plea, if appellant pleaded guilty. The record, which shall be clearly labeled "Record on Appeal from Sentence", shall contain a statement pursuant to CPLR 5531 and shall be stipulated to or settled in the manner provided in section 800.7(b) of this Part. The appeal shall be prosecuted, and may be scheduled for oral argument or submission, in the manner provided in subdivision (b) of this section. A copy of the presentence investigation report shall be filed with the clerk."
Step 81: 800.14(h): Expedited Criminal Appeal of Order Reducing Indictment or Dismissing Indictment and Directing Filing of Prosecutor's Information:
[For the most part, this step can almost always be skipped as it rarely pertains to most criminal appeals.]
Go to 800.14(i).
CHECKLIST FOR CRIMINAL APPEALS:
Step 73: 800.9(b): Respondent's Brief:
"After the record on appeal and appellant's brief, or brief and appendix, have been accepted for filing, the clerk shall mail to each respondent a scheduling memorandum which shall require respondent to serve and file respondent's brief within 45 days from the date of the memorandum or within such shorter time as the memorandum may direct."
"Each respondent shall file the same number of copies of respondent's brief as appellant shall have filed, with proof of service of two  copies upon each appellant."
"Upon any appeal in which an attorney for the child appears for a non-appellant child, the provisions of this subdivision regarding mailing of the scheduling memorandum and filing of respondent's brief shall also apply to include the attorney for the child." Go to 800.14(c).