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February 2013 Archives

#304 Third Department Caselaw Round-Up for February 16, 2012, Part 4 of 6

February 28, 2013

304 Post 02-16-12, Part 4 Third Department February.pngThe first case is an example of how to mangle a case and then how not to write a decision. The second case illustrates how a serious crime can easily alter a custodial arrangement.

Continue reading "#304 Third Department Caselaw Round-Up for February 16, 2012, Part 4 of 6" »

#303 Third Department Caselaw Round-Up for February 16, 2012, Part 3 of 6

February 27, 2013

303 Post 02-16-12, Part 3 Third Department February.pngThe first case leaves me scratching my head, as it seems a bit counter-intuitive and, in my mind, inconsistent with the state of the law as it currently exists concerning emancipation, in the Third Department. However, it may very well be highly consistent with the state of the law as it may exist in the state of Tennessee.

The second case very nicely illustrates the difference between evidence sufficient for a finding of neglect and evidence insufficient for a finding of derivative neglect.

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#302 Third Department Caselaw Round-Up for February 16, 2012, Part 2 of 6

February 26, 2013

302 Post 02-16-12, Part 2 Third Department February.pngToday, we have a case involving the issue of corroboration in an Article 10 proceeding, where the appellant finds out the hard way that the threshold for corroboration is often quite low in such cases. The other case pertains to the benefits of actually reading the law before a defendant accepts a plea deal.

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#301 Third Department Caselaw Round-Up for February 16, 2012, Part 1 of 6

February 25, 2013

301 Post 02-16-12, Part 1 Third Department February.pngThe first case deals with the filing of written objections to the findings of fact and conclusions of law issued by a support magistrate. It also illustrates the importance of credibility in support hearings where it is often a matter of he said/she said. Very often, the more credible party wins.

The second case deals with circumstances where a child is issued a prescription for medication - which the parents object to - where the child is in the custody of DSS.

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#300 Third Department Caselaw Round-Up for February 9, 2012, Part 2 of 2

February 24, 2013

161 Post 02-09-12, Part 2 Third Department February.pngGood day, eh? And welcome to Blog Post #300. Hard to believe that I've been able to crank out 300 of these things but, like most attorneys, I've got a lot to write about. Right now, lack of time precludes me from posting more than once per day, but I hope to be able to change that in the near future. The plan is to be able to post at least twice per day, come April. We'll see.

Another thing I want to get into are hypotheticals. I've had several clients either ask about situations involving novel fact patterns or present with novel fact patterns. Obviously, to ensure confidentiality, all names will be altered. Still, I think it may be more interesting and enlightening to present actual fact patterns that I have dealt with in various courts, just to show you how fact-specific this line of work usually is.

Lastly, I'm going to do away with the caselaw round-up score card, simply because it's becoming obvious that the percentage of affirmations is approaching 70% or better. Therefore, I think it's a safe bet to state that, on average, any given appeal only has a 30% chance of success - at best - and it is probably substantially less than that. However, like the New York Lottery pitchman likes to say: hey, you never know!

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#299 Third Department Caselaw Round-Up for February 9, 2012, Part 1 of 2

February 23, 2013

160 Post 02-09-12, Part 1 Third Department February.pngFirst up is a SORA appeal that probably could have been disposed of via an Anders Brief.

Next up is an Anders Brief where I honestly thought there wouldn't be one, since the issues raised on appeal looked like the Third Department would be eager to engage in rigorous analysis. But no.

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#298 Third Department Caselaw Round-Up for February 2, 2012, Part 5 of 5

February 22, 2013

158 Post-1 02-02-12, Part 5 Third Department February.pngAnother Termination of Parental Rights appeal. Over time, I expect to post quite a few of these if only because they represent the extreme level of dysfunction that ultimately destroys a family. Having represented my fair share of clients who have gone through TPRs, these sorts of cases have a tendency to stick with you. I'll often find myself thinking about these children, hoping that their futures are indeed brighter, now that they've been ripped away from their birth families and united with new families.

Unfortunately, in this line of work, there is never any "Where Are They Now?" follow-ups. You're left forever wondering, will these kids make it? I certainly hope so.

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#297 Third Department Caselaw Round-Up for February 2, 2012, Part 4 of 5

February 21, 2013

157 Post-1 02-02-12, Part 4 Third Department February.pngThe first case is another Anders Brief. Yeah, I've got a thing for Anders Briefs.

The second case features a reversal on a criminal appeal - something you do not often see. It is also another example of the need to make an adequate and clear record.

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#296 Third Department Caselaw Round-Up for February 2, 2012, Part 3 of 5

February 20, 2013

156 Post-1 02-02-12, Part 3 Third Department February.pngThe first case is rather maddening insofar as it is an Anders Brief case that has now returned to the court on the very issue the court had concerns about - only to have the court now blithely dismiss those concerns. So, why was the Anders Brief not accepted in the first place? Yeah, good question.

The second case presents the conundrum of having a court order that has not yet been reduced to writing. Do you wait for the court order to be reduced to writing or do you file the notice of appeal without a written order? Better practice is to file a timely notice of appeal, with or without the written order.

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#295 Third Department Caselaw Round-Up for February 2, 2012, Part 2 of 5

February 19, 2013

155 Post-1 02-02-12, Part 2 Third Department February.pngThe return of the dreaded Anders Briefs!

In the first case, we see a rarity: an Anders Brief in a family law appeal. These happen from time to time, but very seldom. When the need for one arises in the context of family law, it's usually obvious.

In the second case, a criminal law appeal, another Anders Brief is submitted and granted by the court. However, at least with regard to criminal appeals, the submission of an Anders Brief is tantamount to playing Russian roulette: sooner or later, you're going to guess wrong and the court is going to spank you for it. Better practice is to do your due diligence and find something (anything!) in the record on appeal to hang your hat on so as to avoid submitting an Anders Brief.

Continue reading "#295 Third Department Caselaw Round-Up for February 2, 2012, Part 2 of 5" »

#294 Third Department Caselaw Round-Up for February 2, 2012, Part 1 of 5

February 18, 2013

154 Post-1 02-02-12, Part 1 Third Department February.pngWe haven't seen a reversal in a while, and the first case gives us one, since doing so was in the interests of justice and as a matter of law.

The second case is of a variety that will be recurring in these various posts: a sex offender. A failure to register as a sex offender used to be a class A misdemeanor. However, as of 2007, failing to register as a sex offender is now a class E felony. What's the difference, you ask? It's jail versus prison.

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#293 Third Department Caselaw Round-Up for January 26, 2012, Part 3 of 3

February 17, 2013

152 Post-1 01-26-12, Part 3 Third Department January.pngThis case very nicely illustrates that if the parties to an agreement want something included or excluded from the agreement, then they had damned well better make sure that the language used in the agreement is specific enough so that a court, when asked to interpret the agreement, does so in a way that both parties intended.

This case also illustrates why all legal documents need to be extremely carefully drafted and proof-read multiple times. The appellant in this case found that out the hard way.

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#292 Third Department Caselaw Round-Up for January 26, 2012, Part 2 of 3

February 16, 2013

151 Post-1 01-26-12, Part 2 Third Department January.pngAnother interesting appeal out of Franklin County. This one is another long one with a twist: a rarely-seen concurring opinion.

The second case involves sexual offenses against children. Yeah. There is a special place in Hell for people who commit such crimes. And, if I were in charge, I'd personally put such vermin on the Expressway to Hell, with a bullet to the head. So, it's a good thing that I'm not in charge. Sorry, but I feel very strongly about these sorts of crimes.

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#291 Third Department Caselaw Round-Up for January 26, 2012, Part 1 of 3

February 15, 2013

150 Post-1 01-26-12, Part 1 Third Department January.pngThe first case concerns the filing of a petition for a writ of habeas corpus in a criminal matter - and why it's usually not a good idea.

The second case is an excellent illustration of how convoluted cases can get when family law intersects with criminal law. It's also an appellate tour de force by an attorney who is clearly at the top of his game (hey, credit where credit is due, my friends!).

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#290 Third Department Caselaw Round-Up for January 19, 2012, Part 4 of 4

February 14, 2013

148 Post-1 01-19-12, Part 4 Third Department January.pngAnd here, we come upon the interesting animal called an Article 78 proceeding.

The most important thing anyone needs to know about Article 78 proceedings is that they are extremely difficult to win. That's really all you need to know. The odds are very much not in your favor.

So, unless the judge or administrator or board acted arbitrarily, capriciously, outrageously or was found to be grossly in contempt of your due process rights, you don't have a chance. Cynical? Maybe. Realistic? Most definitely.

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#289 Third Department Caselaw Round-Up for January 19, 2012, Part 3 of 4

February 13, 2013

147 Post-1 01-19-12, Part 3 Third Department January.pngThe first case is a lesson in appealing each order or waiting to appeal a final order. It is also a lesson in making sure that your appellate argument matches up with the proper order.

The second case is as interesting as it is farcical. Frankly, the defendant is very lucky he was reprimanded so lightly.

You may also note a pattern to the various criminal appeals included herein. Because sex offenses against children are among the most heinous crimes a human can perpetrate against another, I intend to highlight these appeals as they come up. Also, some of the criminal appeals are included simply for levity (like some of the wilder DWI cases). Also, I find SORA (Sex Offender Registration Act) appeals very interesting, so expect many more of these as well.

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#288 Third Department Caselaw Round-Up for January 19, 2012, Part 2 of 4

February 12, 2013

146 Post 01-19-12, Part 2 Third Department January.pngI love to write (can ya tell?). And, as a writer, one of the first lessons you learn is to lead with a great opening line and close with a great ending line. And, as a writer, it should go without saying that one should also be a great reader. Being a lover of great literature, and of the Russian (and English) greats in particular, I always loved Tolstoy's opening line from his opus, "Anna Karenina": "All happy families resemble one another, each unhappy family is unhappy in its own way." Think about that.

Perhaps this great quote should be emblazoned above the door of every family court in the land. But, then again, it is a truism so self-evident as not to need trumpeting. We all know it, and feel it in our bones. Dysfunction wreaks its own special havoc on each and every one of us. None of us are immune.

And so it is with just about every case that I have read involving the termination of parental rights. There are always all sorts of excuses. Always. And, inevitably, it is always the children who pay the price for their parents' inability to care for them.

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#287 Third Department Caselaw Round-Up for January 19, 2012, Part 1 of 4

February 11, 2013

145 Post 01-19-12, Part 1 Third Department January.pngThe more I post these caselaw round-ups, the more new issues inevitably arise. While I have tried to keep the number of issues low (and, therefore, much more manageable), every now and again a novel fact pattern will appear which demands the creation of a new issue. Currently, there are about 120 issues that show up in these various cases - and I'm sure that this is by no means exhaustive. Still, I'm doing my best to limit them, otherwise they will soon explode out of control, thereby rendering any description of these hundreds of cases effectively meaningless.

Ideally, the best way to compare and contrast these cases is via the issues they represent. The issues might be exactly the same in a pair of cases, but because the fact pattern is so different, the end result is completely different as well. And, as you have seen, EVERY case is unique unto itself. And THAT is why practicing law in the areas of family law, matrimonial law, and criminal law is so much fun: never a dull moment. Every day is different; every case is different. Reminds me of that Chinese curse/blessing: may you live in interesting times.

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#286 Third Department Caselaw Round-Up for January 12, 2012, Part 14 of 14

February 10, 2013

143 Post 01-12-12, Part 14 Third Department January.pngGet it on the record!

Both cases are from Judge Hall, in Warren, and both revolve around claims of ineffective assistance of counsel. The first pertains to the stupidity of being a foreign national and committing a crime here (say goodbye!), and making sure that a good record is made by the attorney. The second pertains to a defendant who feels like his attorney threw him under the bus - and no record to be able to defend the attorney's actions!

Also: we finally reach the two-thirds mark in cases that are affirmed on appeal.

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#285 Third Department Caselaw Round-Up for January 12, 2012, Part 13 of 14

February 9, 2013

142 Post 01-12-12, Part 13 Third Department January.pngThe first case is really just the companion case to Case #125, analyzed in the last post, with the same result. The second case involves the downward modification of a support order - a rarity.

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#284 Third Department Caselaw Round-Up for January 12, 2012, Part 12 of 14

February 8, 2013

141 Post 01-12-12, Part 12 Third Department January.pngAnother quick note: As you could probably guess, I know most of the judges I mention who preside over cases in the Greater Capital Region. Obviously, the farther away from the Greater Capital Region, the less likely I am to know any of these judges. The same goes for many of the attorneys and appellate counsel. And, in rare instances, I will sometimes know the litigants as well (and may even have previously represented them!). For ethical reasons, collegiality, and simple courtesy, I will never refer to any given person by name, nor will I comment on them in any way, other than with regard to the particular and specific facts in a given decision. Whether I like or dislike or admire or loathe anyone who herein appears is entirely irrelevant; it's all about the facts. Period.

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#283 Third Department Caselaw Round-Up for January 12, 2012, Part 11 of 14

February 7, 2013

140 Post 01-12-12, Part 11 Third Department January.pngAnd here are two cases from Judge Powers, in Schenectady, one a termination of parental rights case and the other an equitable distribution case.

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#282 Third Department Caselaw Round-Up for January 12, 2012, Part 10 of 14

February 6, 2013

138 Post 01-12-12, Part 10 Third Department January.pngThe first case is a classic example of the issues one encounters when a lengthy marriage terminates and the wife has given up her career in order to raise the couple's children. As a result, and as you can well imagine, (long-term) maintenance often takes center stage.

The second case is a neglect case. And while, in general, neglect cases are basically all the same, it is in the (often bizarre) details that make each and every neglect case utterly different from every other. These are often the kinds of cases where you think that nothing can surprise you - only to find out that you are quite wrong.

Also, another note: mea cupla. I've been a bit sloppy in conflating maintenance with spousal support, primarily because they are terms that are often treated as if they are interchangeable. They are not. Maintenance is awarded as part of an action for divorce, in Supreme Court, under DRL ยง236, while spousal support is awarded as the result of a petition by a married spouse for support, in Family Court, under FCA articles 4 and 5-B (UIFSA).

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#281 Third Department Caselaw Round-Up for January 12, 2012, Part 9 of 14

February 5, 2013

137 Post 01-12-12, Part 9 Third Department January.pngThis time around, instead of family court matters, we've got two criminal matters, both from St. Lawrence. In fact, they're both from the same judge and both involve defendants from the same case.

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#280 Third Department Caselaw Round-Up for January 12, 2012, Part 8 of 14

February 4, 2013

136 Post 01-12-12, Part 8 Third Department January.pngFor your reading pleasure: a run-of-the-mill neglect proceeding from Otsego and a very interesting DWI case from Rensselaer.

Continue reading "#280 Third Department Caselaw Round-Up for January 12, 2012, Part 8 of 14" »

#279 In Memoriam: January 2013 Deaths

February 3, 2013

279 Post-1 Depositphotos_2695492_XS.jpg70. Clara Ann "Patti Page" Fowler, 85, November 8, 1927 - January 1, 2013:
Musician; American singer; natural causes

While her signature tune was "Tennessee Waltz", she first shot to fame with the song "With My Eyes Wide Open, I'm Dreaming". She had a string of hits in the 50s, such as the number one singles: "All My Love (Bolero)", "I Went To Your Wedding", and the novelty song that will make you wish you were deaf, "(How Much Is) That Doggie In The Window?" Her hits continued in the 60s with "Old Cape Cod", "Allegheny Moon", "A Poor Man's Roses (Or A Rich Man's Gold)", and "Hush, Hush, Sweet Charlotte".

I think my parents have every one of these recordings.

She was born into abject poverty and helped her family earn a living by picking cotton as a girl. She had a beautiful voice and became a featured singer on a local radio station in Tulsa, Oklahoma, in 1946. She would come to the attention of other musicians, tour with a small band, and ultimately sing with the Benny Goodman Orchestra, thereafter landing a record contract. And the rest is history.

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#278 What I Was Listening To ... 40 Years Ago: February 1973 Playlist, Part 2 of 2

February 2, 2013

278 Post-1 Depositphotos_2286999_XS.jpgPerusing this month's selections, I, of course, had to break down and play most of them. And, among all these jewels is a true gem. Have a listen to Gentle Giant's "Nothing At All". Quintessential progressive rock. And, man, does it rock! And, yes, you want to crank it up to eleven. Listen to the entire song just take the hell off, right around 3:15. That killer guitar ostinato! And check out the drums around 4:30. And then it evolves into something altogether different, and then it ends. Over nine minutes of pure bliss.

That, my friends, is Gentle Giant; soundscapes to get lost in. Or, as we used to call it: bongmusic.

And there are a good ten dozen or so other bands out there just like them, in the magical realm of progressive rock.

Thank goodness for busy parents, best friends with audiophile older brothers, and lots and lots of time. If idleness is the devil's workshop, then we enjoyed every minute we spent there. Here's what we were listening to, all those years ago ...

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#277 What I Was Listening To ... 40 Years Ago: February 1973 Playlist, Part 1 of 2

February 1, 2013

277 Post-1 Depositphotos_2286999_XS.jpgAlso, a quick note: I know many of the songs I cite are part of larger medleys. Yeah, I get it. However, me and my friends always used to consider the titles within a medley to be distinct parts in and among themselves (most of the time; I can't tell you how many hours we spent philosophizing over this!). Of course, bands like Jethro Tull really put that to the test with such album-spanning songs as "Thick As A Brick" and "A Passion Play". However, even there, we found a way to break them all down. It got to the point that we knew exactly what the grooves looked like, demarcating the parts of medleys. Yeah. As I have repeatedly stated, as kids, we had an enormous amount of time on our hands. Funny, as an adult, this is the part about childhood that I miss the most. Time.

Anyway, here is what I was listening to, way the hell back in that now ancient time of February, 1973, as I was enjoying the afternoon sun on the snow in Ms. Collins' third grade class, thinking about all the albums we'd play once school was out ...

Continue reading "#277 What I Was Listening To ... 40 Years Ago: February 1973 Playlist, Part 1 of 2" »