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March 2013 Archives

#324 Third Department Caselaw Round-Up for March 29, 2012, Part 2 of 11

March 31, 2013

324 Post 03-29-12, Part 2 Third Department March.pngSometimes even stupid people get lucky (or, maybe, good people merely take pity on them). Also, ever wonder why DOT has random checkpoints? The first case is why.

And while the first case deals with procedural due process rights, the second case deals with both procedural and substantive due process rights.

It's sort of the Goldilocks approach to jurisprudence: don't do too little and don't do too much; try to find a happy medium where things are just right.

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#323 Third Department Caselaw Round-Up for March 29, 2012, Part 1 of 11

March 31, 2013

323 Post 03-29-12, Part 1 Third Department March.pngSSL §384-b returns yet again, resulting in a termination of parental rights. Beware SSL §384-b! Also, this first case is a lesson in making sure that you file a notice of appeal as to each and every order - just in case.

And just in case you needed a harsh lesson in the timeliness of filing a notice of appeal, look no further than the second case. Ouch.

So, here's a great rule of thumb: when in doubt, make sure that you file a notice of appeal of any dispositional order well within thirty (30) days of receipt of the order, noting that the calendar starts the moment the court placed the order in the mail (so immediately scrutinize that postmark very, very closely!) or handed it to you or your attorney.

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#322 Third Department Caselaw Round-Up for March 22, 2012, Part 1 of 1

March 30, 2013

322 Post 03-22-12 Third Department March.pngThis one involves the murder of a 4-month old boy. Yeah. Again, while I would normally not analyze a murder case, I will always make an exception where the victim involved is a child. Murder is vicious enough. But the murder of an infant? That is beyond the pale of the civilized world and perpetrators of such crimes should be forever exiled from the civilized world.

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#321 Third Department Caselaw Round-Up for March 15, 2012, Part 1 of 1

March 30, 2013

321 Post 03-15-12 Third Department March.pngThe first case involves ... another hapless pedophile.

The second case illustrates what happens in a divorce where one party (usually the husband) has substantially more income than the other party (usually the wife), and how that affects equitable distribution and awards of maintenance. Also, when you are the one making substantially more money than your (soon to be ex) spouse, it's always better to view the glass as being half full instead of half empty.

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#320 Third Department Caselaw Round-Up for March 8, 2012, Part 3 of 3

March 29, 2013

320 Post 03-08-12, Part 3 Third Department March.pngWhenever you see the statute SSL §384-b cited in a case, it's a sure bet that parents of children just had their parental rights to those children terminated. And that is the case here. While a parent has a right to a child, that parent also has a responsibility for that child. If you abdicate your responsibility, then your right will be taken away. It's that simple; it's very difficult to have one without the other.

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#319 Third Department Caselaw Round-Up for March 8, 2012, Part 2 of 3

March 29, 2013

319 Post 03-08-12, Part 2 Third Department March.pngThe first case is an example of how multiple indictments can sow the seeds of confusion, especially where an indecisive defendant is involved.

The second case is a SORA appeal involving a sexually violent risk level 3 sex offender.

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#318 Third Department Caselaw Round-Up for March 8, 2012, Part 1 of 3

March 28, 2013

318 Post 03-08-12, Part 1 Third Department March.pngRobbing children is most definitely uncool. It should be near the top of everyone's list of Things I Should NEVER Do. Yet, some people seem never to have gotten the memo.

The second case is from Bizarro World.

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#317 Third Department Caselaw Round-Up for March 1, 2012, Part 3 of 3

March 28, 2013

317 Post 03-01-12, Part 3 Third Department March.pngThe first case is basically a garden variety sexual abuse case against a "young victim". The result is pretty much as you might expect: do not pass Go, do not collect $200.

The second case is amazing because it perfectly illustrates some of the financial consequences of a separation versus a divorce. It is also amazing to me personally, because I currently have a (potential) client who is on the fence over whether or not to retain me to divorce a wife with whom he has not lived in over thirty (30) years. My advice was to initiate a divorce action ASAP - for various reasons, one of which is set forth within this case. Time might've been on the Rolling Stones' side, but it's not on anyone else's. Carpe diem!

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#316 Third Department Caselaw Round-Up for March 1, 2012, Part 2 of 3

March 27, 2013

316 Post 03-01-12, Part 2 Third Department March.pngThe first case involves a "dangerous sex offender", detained pursuant to the Mental Hygiene Law. Needless to say, such people have been deemed to be such a danger to society that they continue to be civilly "detained" (as opposed to being criminally incarcerated). For the person involved, it is little more than semantics. However, I need to stress that the person so detained has, in fact, been deemed to be so dangerous to society that they simply cannot be released back into society.

The second case is a bit of a rarity: the dismissal by family court of neglect petitions brought by DSS. You almost never see this happen because DSS almost never files a petition for neglect unless and until they have assured themselves that it's something of a slam dunk. DSS almost always goes for overkill in their petitions. And this case shows that there is a reason for that.

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#315 Third Department Caselaw Round-Up for March 1, 2012, Part 1 of 3

March 27, 2013

315 Post 03-01-12, Part 1 Third Department March.pngThe first case revisits the importance of proof-reading separation agreements and carefully pouring over every word and phrase, making sure that the document actually states what the parties think it states. One inopportune word or phrase has the potential to cost your client a substantial amount of money in the long term. So: be very careful.

The second case involves the rape of a child. It also is an excellent example of damned good lawyering by appellate counsel.

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#314 Third Department Caselaw Round-Up for February 23, 2012, Part 5 of 5

March 26, 2013

314 Post 02-23-12, Part 5 Third Department February.pngAnd now we have the last case for February 2012. 'Bout time.

This one pertains to a pedophile and, thus, the record has some truly vile things in it. I keep bringing up cases involving sex offenses because they effectively destroy children. A child can never be "normal" again after a sex crime is perpetrated against them; they can certainly never be a "child" again, as a sex crime steals their childhood. In fact, the sick likelihood is that, once victimized, there is a greater probability that they, too, may become sexual predators later in life. That fact is as haunting as it is pathetic.

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#313 Third Department Caselaw Round-Up for February 23, 2012, Part 4 of 5

March 26, 2013

313 Post 02-23-12, Part 4 Third Department February.pngThe first case is one where I'm amazed that the court did not grant sole legal custody of the children to the mother (since the father was a jerk). However, due largely to the deft touch of the judge, the record established that joint legal custody was in order.

The second case is a lesson to attorneys to take firm control of the case if and when it goes to trial. Because, if you do not, you are opening yourself up to a charge of ineffective assistance of counsel. And, as always - get it on the record.

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#312 Third Department Caselaw Round-Up for February 23, 2012, Part 3 of 5

March 25, 2013

312 Post 02-23-12, Part 3 Third Department February.pngHere we have an interesting pair of cases from Rensselaer County. Together, these cases illustrate why it is a really bad idea to violate an order of protection. These cases involve an interesting combination of issues which I have not seen before the Third Department in recent years. This is especially the case concerning the arcane issue of collateral estoppel and the rarely seen (in family law and matrimonial law) issue of summary judgment.

And don't even get me started on pro se litigants.

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#311 Third Department Caselaw Round-Up for February 23, 2012, Part 2 of 5

March 25, 2013

311 Post 02-23-12, Part 2 Third Department February.pngSorry about that almost three (3) week hiatus, but various personal and professional matters desperately needed to be attended to, which resulted in almost no time to post on this blog. Now, with most of those issues resolved and more time on my hands, I hope to be able to post twice a day from now on. We shall see.

In the past several years, I have been trying to move away from a solo practice of almost exclusively assigned counsel and towards a practice much more attuned to private clients. One of the reasons is, obviously, money; private clients can actually pay well for their legal representation. Another reason is that I am able to choose the clients I wish to represent, rather than have them foisted on me; paying clients are much more likely to be interested in assisting in their cases than non-paying clients. A third reason is independence; it's nice to be able to practice law without the state or the counties looking over your shoulder and questioning everything that you do.

And, so, with the thought of making my practice, web site, and blog much more attractive to private clients, expect some changes soon. I hope to be able to add a significant amount of new web content in the coming month, together with a greater number and variety of blog posts. But, first, I need to find a way to get caught up on this tremendous backlog of caselaw round-ups. Thanks for your patience.

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#310 Third Department Caselaw Round-Up for February 23, 2012, Part 1 of 5

March 6, 2013

310 Post 02-23-12, Part 1 Third Department February.pngThe first case is yet another Article 78 proceeding. Wanna guess what happens to it? However, it is rather interesting insofar as the parent refusing to pay child support is ... an attorney. File this one away under Things You Really Don't Want To Do If You Want To Remain As An Attorney.

The second case is an example of what not to do if you want to avoid having your ex-spouse be awarded sole legal and sole physical custody of your children.

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#309 In Memoriam: February 2013 Deaths

March 5, 2013

309 Post-1 Depositphotos_5480853_XS.jpg74. Edward Irving "Ed" Koch, 88, December 12, 1924 - February 1, 2013:
Politician; American attorney, U.S. Representative, mayor of New York City; congestive heart failure

Love him or hate him, no one was more representative of New York City (both the good and the bad) than Ed Koch. There was definitely an Upstate-Downstate dynamic to Ed Koch. While Downstaters may have loved him, we Upstaters more often saw him as the putz with the chutzpah; a man who exuded Downstate arrogance but who nonetheless had the brass to actually pull it off.

We loved him: he dug down deep and remade New York City after the disastrous term of the prior mayor, Abe Beame, who brought the city to the brink of bankruptcy.

We hated him: he allegedly balked at running for governor in part because he felt that there were simply no decent Chinese restaurants in the wilds of the Greater Capital Region. I'm sure this was merely attributed to Koch, since even Koch wouldn't have been so unbelievably tone-deaf, being the superb politician that he was. Still, it hit a raw nerve amongst us Upstaters.

Later in life, he seemed to have lost his mind, especially in his bizarre support of George Bush's second election.

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

March 4, 2013

308 Post-1 Depositphotos_2286999_XS.jpgAnd that's how it was with music as well: the weirder, the better. Screw the radio and its bubblegum dross! We were busy floating off into the stratosphere. But I wanted to go ever higher. And, in the process, as kids, we were turned on to some profoundly strange music: Can, Captain Beefheart, Hawkwind, Jade Warrior, Van Der Graaf Generator, and Frank Zappa are the ones that quickly come to mind. Art rock. Space rock. Acid rock. Kraut rock. Experimental rock. Post-rock. You name it, we listened to it. Truly mind-blowing stuff. Imagine debating the merits of a Frank Zappa tune at the ages of 8 and 9. Or of Captain Beefheart. Our parents considered this music to be outright trash; we thought it was brilliant beyond all reckoning!

And so it went: we would become deliciously warped as we listened to this amazing music over the years ...

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

March 3, 2013

307 Post-1 Depositphotos_2286999_XS.jpgAs I recall, 1973 was a pretty amazing year for me academically. Teachers started to take notice and, suddenly, it seemed I was being fast-tracked. I can't remember whether or not my parents thought I was nuts or what, but I seem to recall having my IQ tested for some reason. One of the reasons for my apparent strangeness was that I had already read the World Book Encyclopedia that my parents had bought for us the summer before, from A through Z. I loved it so much that I would do it twice more. This, of course, was after I had already digested - from cover to cover - whatever dictionaries were laying around the house. I had this insatiable desire for inputting data into my mind. And more was never enough. And then I stumbled upon a "book" beyond my wildest imaginings: the Encyclopedia Britannica. Whoa! I was in heaven.

Yeah, I was, by no means, your normal nine-year old kid. And this is what that weird kid was listening to way back in March, 1973 ...

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

March 2, 2013

306 Post 02-16-12, Part 6 Third Department February.pngThe first case deals with a juvenile delinquency case involving a dispute over restitution.

The second case, while ostensibly a child support appeal, is really an illustration of the mechanics involved in referrals between courts, in this case between Supreme Court and Family Court.

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#305 Third Department Caselaw Round-Up for February 16, 2012, Part 5 of 6

March 1, 2013

305 Post 02-16-12, Part 5 Third Department February.pngThe first case is significant and novel insofar as it deals with the imposition of multiple permanency planning goals which, by their very nature, are inherently contradictory. Only one goal is permitted by statute. Thus, an order with more than one goal virtually guarantees a reversal, as here.

The second case is an example of what not to do if you are an out-of-state litigant involved in custody proceedings in New York.

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