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April 2013 Archives

#374 Third Department Caselaw Round-Up for May 17, 2012, Part 2 of 2

April 30, 2013

374 Post 05-17-12, Part 2 Third Department May.pngThe first case illustrates what occurs in an FCA Article 10 case when a non-final order is appealed and then the underlying case is resolved. It also shows the importance of appealing dispositive orders.

The second case looks like an appeal that should have resulted in the filing of an Anders Brief.

Continue reading "#374 Third Department Caselaw Round-Up for May 17, 2012, Part 2 of 2" »

#373 Third Department Caselaw Round-Up for May 17, 2012, Part 1 of 2

April 30, 2013

373 Post 05-17-12, Part 1 Third Department May.pngThe first case involves a very stupid person who rolled the dice and lost. Big time.

The second case involves a second very stupid person. Perhaps it's the mere nature of being a criminal that makes people stupid.

Continue reading "#373 Third Department Caselaw Round-Up for May 17, 2012, Part 1 of 2" »

#372 Third Department Caselaw Round-Up for May 10, 2012, Part 4 of 4

April 30, 2013

372 Post 05-10-12, Part 4 Third Department May.pngThe first case is concerns how joint legal custody can easily become sole legal custody when one parent decides that they are not going to be cooperative with the other parent.

The second case concerns a likely pedophile who fancied himself to be a computer nerd - but wasn't smart enough to keep from getting caught.

Continue reading "#372 Third Department Caselaw Round-Up for May 10, 2012, Part 4 of 4" »

#371 Third Department Caselaw Round-Up for May 10, 2012, Part 3 of 4

April 29, 2013

371 Post 05-10-12, Part 3 Third Department May.pngThe first case involves ... another sex offender. Jesus, they're everywhere! I think you know the drill: affirmed.

The second case involves ... yet more sexual abuse of children. I guess I include these cases if only because I simply cannot understand how a human being can find sexual gratification in a child. The thought is so utterly repugnant to me that these specimens of flawed humanity hold some sick sort of bizarre fascination for me. I just can't understand how such people can think such horrific thoughts and then put such thoughts into action.

Continue reading "#371 Third Department Caselaw Round-Up for May 10, 2012, Part 3 of 4" »

#370 Third Department Caselaw Round-Up for May 10, 2012, Part 2 of 4

April 29, 2013

370 Post 05-10-12, Part 2 Third Department May.pngThe first case is one concerning a sex offender appealing his risk assessment level. Silly sex offender.

The second case illustrates that mootness of an appeal trumps the need for the filing of an Anders Brief.

Continue reading "#370 Third Department Caselaw Round-Up for May 10, 2012, Part 2 of 4" »

#369 Third Department Caselaw Round-Up for May 10, 2012, Part 1 of 4

April 29, 2013

369 Post 05-10-12, Part 1 Third Department May.pngThe first case is short and sweet. Here's an idea: if you don't want to be found in willful violation of an order of child support, then it is probably best not to admit to being in arrears on the record. D'oh!

The second case involves our old friend Harmless Error.

Continue reading "#369 Third Department Caselaw Round-Up for May 10, 2012, Part 1 of 4" »

#368 Third Department Caselaw Round-Up for May 3, 2012, Part 2 of 2

April 28, 2013

368 Post 05-03-12, Part 2 Third Department May.pngThe first case illustrates the confluence of money, estrangement, and counsel fees in family court.

The second case brings us back, once again, to the equitable distribution of real property.

Continue reading "#368 Third Department Caselaw Round-Up for May 3, 2012, Part 2 of 2" »

#367 Third Department Caselaw Round-Up for May 3, 2012, Part 1 of 2

April 28, 2013

367 Post 05-03-12, Part 1 Third Department May.pngAnd now, for something completely different! Cue the "Monty Python" music.

The first case concerns the amazingly dangerous feat of DWI on a motorcycle. Yeah.

The second case concerns a mother beating up her children - and then pointing the finger at the babysitter. Stay classy, mom!

Continue reading "#367 Third Department Caselaw Round-Up for May 3, 2012, Part 1 of 2" »

#366 Third Department Caselaw Round-Up for April 26, 2012, Part 8 of 8

April 27, 2013

366 Post 04-26-12, Part 8 Third Department April.pngHere are two relocation cases, both involving mothers who ultimately lose custody.

The first case gives a good overview of the general concept of "the totality of the circumstances" when analyzing a custody case, especially concerning relocation cases.

The second case is an object lesson in the pitfalls of parental alienation.

Continue reading "#366 Third Department Caselaw Round-Up for April 26, 2012, Part 8 of 8" »

#365 Third Department Caselaw Round-Up for April 26, 2012, Part 7 of 8

April 27, 2013

365 Post 04-26-12, Part 7 Third Department April.pngThe first case is a standard, garden variety FCA Article 6 case - but with a twist with regard to what it does not state.

The second case is a judicial spanking, handed down by the Third Department. What is a judicial spanking? It's when the Third Department remits the matter back to the trial court, but pointedly states that it is for further proceedings "before a different judge". Ouch. Those four words speak volumes.

Continue reading "#365 Third Department Caselaw Round-Up for April 26, 2012, Part 7 of 8" »

#364 Third Department Caselaw Round-Up for April 26, 2012, Part 6 of 8

April 26, 2013

364 Post 04-26-12, Part 6 Third Department April.pngThe first case involves a wise judge presiding over estranged parents and, to my mind, doing the right thing (and the Third Department agrees).

The second case is the return of SSL §384-b. And you can guess how it ends.

Continue reading "#364 Third Department Caselaw Round-Up for April 26, 2012, Part 6 of 8" »

#363 Third Department Caselaw Round-Up for April 26, 2012, Part 5 of 8

April 26, 2013

363 Post 04-26-12, Part 5 Third Department April.pngBoth cases hail from Madison County, a venue from which I rarely see appeals.

The first case involves extraordinary circumstances, something that has not reared its head in a while.

The second case involves apples and oranges. Don't confuse the apples (child support) with the oranges (good time allowance in jail).

Continue reading "#363 Third Department Caselaw Round-Up for April 26, 2012, Part 5 of 8" »

#362 Third Department Caselaw Round-Up for April 26, 2012, Part 4 of 8

April 26, 2013

362 Post 04-26-12, Part 4 Third Department April.pngThe first case is a classic example of what "change in circumstances" means and why it is required for a petition in family court to withstand a motion for dismissal. It also is interesting insofar as it may have created new law.

The second case is an example of the need to both appear for support proceedings and to produce financial disclosure.

Continue reading "#362 Third Department Caselaw Round-Up for April 26, 2012, Part 4 of 8" »

#361 The 13 Cities of the Greater Capital Region, Part 7 of 7

April 25, 2013

361 Post Depositphotos_3390366_XS.jpgWhile it might seem that there are a lot of cities in the Greater Capital Region, since they outnumber counties 13 to 11, this ratio is a bit on the high side insofar as there are only as many cities in the state as there are counties: 62. Therefore, on average, each county has its own city. Of course, in the case of New York City, that particular city has five counties (Bronx, Kings (Brooklyn), New York (Manhattan), Richmond (Staten Island), and Queens; called boroughs of the city itself). As a result, you'll find that the counties of the far northern and western reaches of the state have very few cities.

And like New York City's boroughs, most cities have similar divisions, though mostly for political purposes, called wards. Some (especially the larger cities) are also broken down into historic neighborhoods or ethnic enclaves. In the future, when I devote significantly more time to each particular city, these wards, neighborhoods, and enclaves will be showcased as well.

Continue reading "#361 The 13 Cities of the Greater Capital Region, Part 7 of 7" »

#360 Third Department Caselaw Round-Up for April 26, 2012, Part 3 of 8

April 24, 2013

360 Post 04-26-12, Part 3 Third Department April.pngThis first case stands for the proposition that "equitable distribution of marital property does not mean equal" distribution of marital property. Look the two words up; they mean entirely different things. However, the Third Department leaves you guessing about what precisely is "equitable" in this particular case.

The second case is the return of SSL §384-b. And you know what that means.

Continue reading "#360 Third Department Caselaw Round-Up for April 26, 2012, Part 3 of 8" »

#359 The 13 Cities of the Greater Capital Region, Part 6 of 7

April 24, 2013

359 Post Depositphotos_3390366_XS.jpgEarly in the development of Upstate New York, the extensive network of rivers and streams were of the utmost importance in developing forts along the early frontier, some of which grew into cities. However, those cities situated by or near canals (the Erie and the Champlain) experienced even greater growth as key trans-shipment points into the vast interior of Upstate. Later, those cities that sat astride railroads grew astronomically compared to those areas bereft of train service. In the mid-1900s, air travel loomed large, but with few Upstate cities taking advantage of it. However, Albany International Airport filled the gap (though it is actually located in the town of Colonie).

After the age of air travel came the age of the interstates. Unfortunately, the interstates did as much to hurt the cities as it did to help them. Sure, the larger cities mostly benefitted, but the smaller ones had their downtowns and economies gutted by now easy access to sprawling malls in the suburbs. Some were able to take advantage of this change (Albany especially); however, most were not as interstates bypassed them altogether.

The next frontier is the age of the internet and cyberspace, and the Greater Capital Region is doing its best to capitalize on that as well. With the massive and state-of-the-art College of Nanoscale Science and Engineering, at SUNY at Albany, and various technology parks such as the Luther Forest Technology Campus and RPI's Rensselaer Technology Park, the Greater Capital Region has placed itself at the core of the Tech Valley of the northeast. So, we've already been through wars, boats, trains, planes, and automobiles. Now we've moved on to fiber optics, silicon chips, and the ether itself. Get ready for the next wave of massive economic growth in the region.

Continue reading "#359 The 13 Cities of the Greater Capital Region, Part 6 of 7" »

#358 Third Department Caselaw Round-Up for April 26, 2012, Part 2 of 8

April 23, 2013

358 Post 04-26-12, Part 2 Third Department April.pngThe first case concerns the need for the trial court to make specific findings concerning the best interests of the child, without which a decision on appeal is reversed and remitted back to the court. The second case is the seldom seen appeal of a juvenile delinquency matter.

What these two appeals teach us is this: never forget that the CPLR (Civil Practice Law and Rules) always always always applies in family court unless the Family Court Act or the Uniform Rules of Court state otherwise. Once again, as I keep stating, every attorney practicing within this state should regularly read David Siegel's magnum opus, "New York Practice", now in its fifth edition.

Also, this is the first time that I've seen the same judge reversed twice in the same week, and over rudimentary violations of the CPLR no less.

Continue reading "#358 Third Department Caselaw Round-Up for April 26, 2012, Part 2 of 8" »

#357 The 13 Cities of the Greater Capital Region, Part 5 of 7

April 23, 2013

357 Post Depositphotos_3390366_XS.jpgSome cities are so small, it makes you wonder why they became cities in the first place. In fact, many of the cities of Upstate New York would probably only qualify as villages by Downstate standards, based on population alone. In the case of the City of Mechanicville, it happens to be the smallest city in the entire state (though not the least populous). Of course, just because a city is not so populous today doesn't mean it was always that way. This is especially the case when a city becomes overly dependent on one industry. If and when that industry leaves the city, the city is effectively gutted and the population diminishes greatly, in search of greener pastures.

Continue reading "#357 The 13 Cities of the Greater Capital Region, Part 5 of 7" »

#356 Third Department Caselaw Round-Up for April 26, 2012, Part 1 of 8

April 23, 2013

356 Post 04-26-12, Part 1 Third Department April.pngThe first case is the rarely seen adoption appeal which illustrates the basic difference between a sperm donor and a father. This might come as a bit of a shock to most people, but the consent of the father of a child is not required for the adoption of a child by another man in certain circumstances. To avoid being in such a horrible position, a father should ensure that he gives financial support to his child and exercises visitation with the child regularly. In other words, man up, or bad things may happen.

We'll call the second case Smoke On The Water. It is included here strictly for personal reasons. It concerns the destruction of the wonderfully raunchy Saratoga Winners roadhouse (oddly placed just off of U.S. Route 9, right on the Mohawk River) back in 2009, due to arson. Back in the day, it was one of my frequent hangouts as I checked out the various local bands that would play this dive. Even then, I knew the place was a fire hazard, and that it was only a matter of time. Still, the place had a lot of great memories - until some stupid with a flare gun burned the place to the ground. Or something.

Continue reading "#356 Third Department Caselaw Round-Up for April 26, 2012, Part 1 of 8" »

#355 The 13 Cities of the Greater Capital Region, Part 4 of 7

April 23, 2013

355 Post Depositphotos_3390366_XS.jpgCities in the northeast, especially those of Upstate New York, have taken a beating since the 1960s. Industries left or went bankrupt, urban renewal decimated downtowns, interstates bypassed congested areas within and surrounding cities, and population itself shifted towards the south and the west, well away from the north and the east. As industries left cities, tax bases eroded and urban blight grew in once prosperous areas. Almost all of the thirteen cities of the Greater Capital Region are mere shadows of their former glories, possibly with the exceptions of Albany and Saratoga Springs. With every new census, most of the cities have fewer and fewer residents.

Continue reading "#355 The 13 Cities of the Greater Capital Region, Part 4 of 7" »

#354 Third Department Caselaw Round-Up for April 19, 2012, Part 2 of 2

April 21, 2013

354 Post 04-19-12, Part 2 Third Department April.pngThere are two DWI cases to analyze today, and the Third Department makes quick work of each.

The first case is a lesson on what not to do with an appeal: do not raise the sole argument that the sentence is harsh an excessive. That argument - even when found together with other arguments - is, in my mind, the weakest argument that can be made in a criminal appeal. Of course, if you've got nothing else, it sure beats filing an Anders Brief.

The second case is quite similar to the first, with the same result.

Continue reading "#354 Third Department Caselaw Round-Up for April 19, 2012, Part 2 of 2" »

#353 The 13 Cities of the Greater Capital Region, Part 3 of 7

April 21, 2013

353 Post Depositphotos_3390366_XS.jpgWater is the lifeblood of cities. Look even to the three counties in the Greater Capital Region without cities in them: Greene, Schoharie, and Washington. Yet, Catskill could easily be a city, but for its being a village, situated as it is on a prominent piece of ground between the Hudson River and the mouth of the Catskill Creek. And the villages of Hudson Falls and Fort Edward, situated as they are on prominent bends in the Hudson River, could also just as easily be cities.

And while Schoharie County is landlocked, its three large villages of Cobleskill, Middleburgh, and Schoharie all sit in the largest floodplains of the county, along the Cobleskill and Schoharie Creeks. Cobleskill sits in the western gateway, as the major arteries of N.Y. Route 7, Interstate 88, and the CSX rail line can attest, moving out of the Mohawk-Hudson watershed and into the abutting Susquehanna watershed. Middleburgh sits in the southern gateway, as the artery of N.Y. Route 30 can attest, moving into the abutting Delaware watershed to the southwest.

These cities and villages exist where they are for very good reasons, all of them strategically placed, firstly for defense of an old frontier and secondly for the riches that come from key trans-shipment points.

Continue reading "#353 The 13 Cities of the Greater Capital Region, Part 3 of 7" »

#352 Third Department Caselaw Round-Up for April 19, 2012, Part 1 of 2

April 21, 2013

352 Post 04-19-12, Part 1 Third Department April.pngThe first case is quite short, thanks largely to the defendant's extensive criminal history. However, for this decision to have had any real precedential value, it should have been more fully developed. It's as if the Third Department thought the facts of the case didn't even matter.

The second case is another Anders Brief, this time affirmed by the court. What makes this noteworthy is that this was a SORA appeal. As I stated in a recent post, I am surprised that I do not see more Anders Briefs in SORA appeals, since they are almost always doomed from the start. And here it is.

Continue reading "#352 Third Department Caselaw Round-Up for April 19, 2012, Part 1 of 2" »

#351 The 13 Cities of the Greater Capital Region, Part 2 of 7

April 20, 2013

351 Post Depositphotos_3390366_XS.jpgMost cities grow from hamlet into village into city; a group of people that just keeps getting bigger and bigger, with more and more industry. And, usually, cities grow in distinct areas, and in distinct ways, often sprawling along the shores of major rivers or important streams, acting as trans-shipment points from land to water. That's certainly the case with most of the cities in the Greater Capital Region. The cities of Albany, Glens Falls, Hudson, Mechanicville, Rensselaer, Troy, and Watervliet, all sit along the shores of the Hudson River. The cities of Amsterdam and Schenectady sit along the shores of the Mohawk River. The city of Cohoes is lucky enough to sit beside both rivers. So, what gives with the cities of Gloversville, Johnstown, and Saratoga Springs? Well, both Gloversville and Johnstown sit astride the Cayadutta Creek, along which the Fonda, Johnstown and Gloversville Railroad carried their glove trade to Schenectady and beyond, from 1867 to 1984. Saratoga Springs stands alone among the thirteen cities as being apart from any bodies of water. And there is a good reason for this: horses. Of course, the irony is that while the other twelve cities sit beside bodies of water, Saratoga Springs sits above one - and is the only city renowned for its waters, hence its name.

Continue reading "#351 The 13 Cities of the Greater Capital Region, Part 2 of 7" »

#350 Third Department Caselaw Round-Up for April 12, 2012, Part 5 of 5

April 19, 2013

350 Post 04-12-12, Part 5 Third Department April.pngThis case is actually the companion case of the second one in the prior blog post. As such, there really isn't a lot to add.

Continue reading "#350 Third Department Caselaw Round-Up for April 12, 2012, Part 5 of 5" »

#349 The 13 Cities of the Greater Capital Region, Part 1 of 7

April 19, 2013

349 Post Depositphotos_3390366_XS.jpgThis series is an introduction to the thirteen (13) cities of the Greater Capital Region. Depending upon where you are from, these might not look like cities at all, just overgrown villages. If you are from Downstate, and consider the city of Albany to be Smallbany, then these other cities won't even show up on your radar.

And even some Upstaters might consider the smaller cities to be villages. That can certainly be said for the tiny cities of Hudson and Mechanicsville. Of course, we will get to the many villages in the area in the next series.

Continue reading "#349 The 13 Cities of the Greater Capital Region, Part 1 of 7" »

#348 Third Department Caselaw Round-Up for April 12, 2012, Part 4 of 5

April 18, 2013

348 Post 04-12-12, Part 4 Third Department April.pngThe first case is a good illustration of what a change in circumstances is, and why it is needed to prevail on a custody petition in family court. It's also yet another example of the need to carefully read the footnotes in a case. My friends, if the court found reason to footnote their decision, it's probably because there was a damned good reason to do so: READ the footnotes!

The second case is something we haven't see in a while: an Anders Brief with which the Third Department disagrees. As I have constantly warned: when in doubt, avoid submitting an Anders Brief if you can help it. Otherwise, roll the dice and prepare to be humiliated by the court. Also, I note that this is not the first time that this particular attorney has found himself in this situation. What's the old saying again? Once bitten twice shy?

Continue reading "#348 Third Department Caselaw Round-Up for April 12, 2012, Part 4 of 5" »

#347 The 11 Counties of the Greater Capital Region, Part 6 of 6

April 18, 2013

347 Post Depositphotos_2048407_xs.jpgOn to the far northern reaches of the Greater Capital Region. Both Warren and Washington counties are large though quite dissimilar. Washington County is all premium farmland settled amidst the Taconic foothills while Warren County is largely forested with scattered lakes amidst the southeastern Adirondacks. And but for its northern tip, you will find within Warren County the always cold Lake George.

Continue reading "#347 The 11 Counties of the Greater Capital Region, Part 6 of 6" »

#346 Third Department Caselaw Round-Up for April 12, 2012, Part 3 of 5

April 17, 2013

346 Post 04-12-12, Part 3 Third Department April.pngThe first case is another SORA appeal concerning a level 2 sex offender who is also a pedophile. The second case concerns what happens when a person combines Facebook with boredom, alcohol, and naked dancing. Yeah.

Continue reading "#346 Third Department Caselaw Round-Up for April 12, 2012, Part 3 of 5" »

#345 The 11 Counties of the Greater Capital Region, Part 5 of 6

April 17, 2013

345 Post Depositphotos_2048407_xs.jpgAnd now on to the smallest county and the least populated county. Schenectady County is the epitome of the Greater Capital Region in that it encompasses within it almost everything you will find everywhere else in the region, from the gritty urban to the bedroom community suburban to the remote rural. Schoharie County is picturesque with probably the friendliest people in the entire region. Take a walk down the Main Streets of the various villages and it's like stepping back into the 1950s; it feels like home. Better yet, take a day off and go exploring over its rolling hills. Check out Howe Caverns and, just down the road, Secret Caverns.

Continue reading "#345 The 11 Counties of the Greater Capital Region, Part 5 of 6" »

#344 Third Department Caselaw Round-Up for April 12, 2012, Part 2 of 5

April 16, 2013

344 Post 04-12-12, Part 2 Third Department April.pngThe first case is quite short due to the actions of the parties after the appeal was filed.

The second case is actually a bit shocking. It concerns something that I regularly call "warehousing". Warehousing is basically an abdication of one's role and responsibilities as a parent with regard to one or more children, by placing the child or children in the care of a third-party, without any real concern or planning for the child's or children's future. I see warehousing a lot in this line of work, but usually with a parent's friends or relatives (as the parent goes off to engage in his or her selfish - and childless - desires). Rarely does one see such blatant warehousing in this fashion - with DSS itself.

Continue reading "#344 Third Department Caselaw Round-Up for April 12, 2012, Part 2 of 5" »

#343 The 11 Counties of the Greater Capital Region, Part 4 of 6

April 16, 2013

343 Post Depositphotos_2048407_xs.jpgWhile people often view Upstate New York as this sort of monolithic entity, it really is a meaningless term as so few people can agree on what precisely is encompassed by "Upstate New York". Some people consider any part of the state north of New York City to be Upstate New York. Some think it's north of Westchester or Putnam. Others draw a line from the Southern Tier east across the Delaware and Hudson Valleys and consider anything north of it to be Upstate New York. Still others would consider Central New York and Western New York to be a part of Upstate New York.

A far better measure of place is that provided by the metes and bounds of a county's borders. And, even then, that might be too large as well. Some counties are so large that they, too, are broken down into smaller constituents, with people saying they are from South County of North County or something similar. That's where cities, towns and villages come in, the smallest meaningful municipalities found within the state.

Continue reading "#343 The 11 Counties of the Greater Capital Region, Part 4 of 6" »

#342 Third Department Caselaw Round-Up for April 12, 2012, Part 1 of 5

April 6, 2013

342 Post 04-12-12, Part 1 Third Department April.pngFirst a male monster, and then a female monster. And there is but one word for each: affirmed. The second case also serves as an interesting analysis of Miranda warnings.

Continue reading "#342 Third Department Caselaw Round-Up for April 12, 2012, Part 1 of 5" »

#341 The 11 Counties of the Greater Capital Region, Part 3 of 6

April 6, 2013

341 Post Depositphotos_2048407_xs.jpgAnother thing to note about the Greater Capital Region is that is overwhelmingly rural and heavily forested. While there are large swaths of the urban-suburban continuum in abundance in the area between and around the Albany-Schenectady-Troy hubs - places like the towns of Bethlehem, Brunswick, Clifton Park, Colonie, East Greenbush, Glenville, Guilderland, Halfmoon, Niskayuna, North Greenbush, Rotterdam, and Waterford - most of the area is sparsely populated and relatively empty. Even most of the villages have a rustic and rural flavor to them. This is especially the case with all of the outlying counties and most of their municipalities.

Continue reading "#341 The 11 Counties of the Greater Capital Region, Part 3 of 6" »

#340 In Memoriam: March 2013 Deaths

April 6, 2013

340 Post-1 Depositphotos_2071841_XS.jpgMarch sure turned out to be a crappy month for rock stars, especially for English rock stars. This month, in addition to a wonderful actress, we lost members from Ten Years After, Yes, Iron Maiden, and the Spinners, together with a session musician that knew and played with everyone who was anyone. And check out how relatively young they all were when they died. Sheesh.

82. Bonnie Franklin, 69, January 6, 1944 - March 1, 2013:
Actress; American actress; pancreatic cancer

Bonnie Franklin played Ann Romano, the hot mother of the hot Barbara Cooper (Valerie Bertinelli) and the hot Julie Cooper (Mackenzie Phillips), who was always trying to avoid the lecherous advances of their apartment building superintendent, Dwayne Schneider (Pat Harrington, Jr.), in that wonderful television series that was a must to watch, "One Day At A Time", which ran from 1975 to 1984. We learned a lot about sex and drugs and rock and roll from this show. Yes we did.

Continue reading "#340 In Memoriam: March 2013 Deaths" »

#339 The 11 Counties of the Greater Capital Region, Part 2 of 6

April 5, 2013

339 Post Depositphotos_2048407_xs.jpgThere are 11 counties, 13 cities, 62 villages, and 144 towns in the Greater Capital Region; 230 municipal entities, most of which have their own individual judicial systems. The only exceptions to this general rule are those villages (and, perhaps, a few towns of which I am currently unaware) that are too small to have their own separate judicial systems or those villages (almost always villages) that their surrounding town has absorbed the administration of, usually in the name of budgetary fiscal restraint.

Also remember, by law, in New York state, judges of town and village courts need not be attorneys. As such, you will commonly find town and village judges to be either local residents who have the judgeship as a part-time job or retired military or police personnel. And the various town and village courts run the gamut from the new, pristine, and large to the old, shabby, and tiny. Some are out of the back of other businesses or services, such as hardware stores or fire or police departments. Some are amazing, stand-alone edifices which the town or village is (rightly) quite proud of.

My favorite memory of a small village court is that of the tired farmer, late to court due to having to plow a muddy field. Upon reaching the threshold, he kicked off the debris all over his boots. Mud or cow dung, who could tell? He couldn't. So, he reached down and pulled off a clump, raised it to his nose, and safely declared that "There might be people in this court who are full of @#$%, but I sure the hell ain't one of 'em." It might seem crass, but I found it endearing. This is the piquant nature of practicing in these wonderfully quaint courts (even if I always get the feeling that my clients are presumed guilty until proven innocent!).

City courts and county courts have judges (all of whom are judges full-time, as far as I know) who also must be attorneys, by law. While they might not be as colorful as their more rustic brethren, they are just as able and approachable.

Continue reading "#339 The 11 Counties of the Greater Capital Region, Part 2 of 6" »

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

April 5, 2013

338 Post-1 Depositphotos_2286999_XS.jpgI admit that these songs really take me back. They take me back to a time that is long gone. Back to a time when marijuana was as common as beer and everyone you knew - at least among the older kids - seemed stoned half the time. Hell, I knew what pot smelled like long before I knew what beer tasted like. And it still makes me laugh, even today, to think of how ignorant most adults and parents were of what was going on right below their noses. We would roar whenever an adult would get a whiff and then exclaim, in complete surprise: "Is something burning!?" Good times. And as much as I love to reminisce, it only makes me feel old.

I guess what bums me out the most is how many of these artists are dead or dying. It seems that every month, some rock star I grew up listening to has died. Very depressing. And, of course, you can only hear most of this music on oldies stations anymore, apart from the huge artists. Still, I find the music inspiring and I hope that I will be listening to it all for many, many years to come.

Continue reading "#338 What I Was Listening To ... 40 Years Ago: April 1973 Playlist, Part 2 of 2" »

#337 The 11 Counties of the Greater Capital Region, Part 1 of 6

April 5, 2013

337 Post Depositphotos_2048407_xs.jpgThis series is merely an introduction to the eleven (11) counties of the Greater Capital Region, all of which are found within the Third Department. There is a wide range in both the areas and populations of the eleven counties.

Another series will explore the various cities (13) of the Greater Capital Region. Yet another series will explore the many villages (62) of the Greater Capital Region. The last will explore the many towns (144) of the Greater Capital Region. Thus, you will get a basic introduction to each of the 230 municipal entities that are collectively known as the Greater Capital Region.

Continue reading "#337 The 11 Counties of the Greater Capital Region, Part 1 of 6" »

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

April 4, 2013

336 Post-1 Depositphotos_2286999_XS.jpgI've been extraordinarily busy these past several weeks, but I've very much enjoyed listening to various playlists from the early 1970s. It's hard to remember life without iTunes. I've got playlists that are several hours long. And, thus, it's time to post the playlist from April 1973. The 1970s were a wonderful time for rock insofar as so many genres were screaming for your attention. I loved all of them, as you can probably tell from these usually eclectic selections. I tried to steer well clear of both gospel and country, but anything else was fair game.

What I really love about iTunes is the way you can seamlessly create playlists - and all in a matter of minutes. As kids, it was a laborious matter of hours of taping music from the radio, singles or albums onto cassettes or 8-track tapes. Inevitably, you would get something wrong and the fidelity of the taped music would sound like crap. But that is all we had and we didn't know any better.

Continue reading "#336 What I Was Listening To ... 40 Years Ago: April 1973 Playlist, Part 1 of 2" »

#335 Third Department Caselaw Round-Up for April 5, 2012, Part 2 of 2

April 4, 2013

335 Post 04-05-12, Part 2 Third Department April.pngA quick one with a dangerous sex offender. That would be a triple-entendre (attention Who fans). Seriously, though, this one is about as reprehensible as you can get. It is amazing to me that there are humans out there in society like this ... lurking.

Cynthia Feathers also makes an appearance in this appeal. She's everywhere!

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#334 Third Department Caselaw Round-Up for April 5, 2012, Part 1 of 2

April 4, 2013

334 Post 04-05-12, Part 1 Third Department April.pngLook, I don't mind the cold, despite the fact that it's been unseasonably cold. I'm an Upstater; therefore, I LOVE the cold. I don't even mind waking up to dustings of snow. What I DO mind is this seemingly constant, howling wind. Being outside has been unpleasant, mostly because of the incessant wind. Still, buds and green shoots are everywhere, so it's only a matter of time. Yes, April is the cruelest month.

Also, I will break my rule once again and name names. If you've been following this blog, and you've been clicking on the links, then you have come to realize that there is an attorney who happens to appear quite often in these decisions. That attorney is the prolific Cynthia Feathers. I suspect that she has perfected over 200 appeals by now, and she is the standard against whom all other appellate attorneys are judged (in my opinion), in the Third Department. I know her and I have a great deal of respect for her (and actually engaged in an appeal with her once). Attorney Feathers appears in the first case.

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

April 3, 2013

333 Post 03-29-12, Part 11 Third Department March.pngThe first case teaches an expensive lesson to divorcing husbands with girlfriends about the difference between business expenses and personal expenses.

The second case is probably more academic than anything else. However, it just goes to show you that it helps to regularly stay up-to-date on the law and reread David Siegel's New York Practice whenever you get the chance.

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#332 Third Department Caselaw Round-Up for March 29, 2012, Part 10 of 11

April 3, 2013

332 Post 03-29-12, Part 10 Third Department March.pngAnd now we turn to our attentions to two Warren County cases. The first is an interesting take on how combined alcohol and marijuana consumption can mandate submission of a lesser included offense to a jury.

The second case illustrates how a stipulation (when reduced to an order) can moot an appeal.

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#331 Third Department Caselaw Round-Up for March 29, 2012, Part 9 of 11

April 3, 2013

331 Post 03-29-12, Part 9 Third Department March.pngI forgot to mention something in that last blog post. For all you law nerds out there (I know there are quite a few of us), cites to the NYS Constitution are no biggie. Really, all you need to know are the basics of Article VI, as that is the article that pertains to the judiciary. But it is cool to explore the many other articles there as well. There is a marvelous and compact (only 46 pages!) pdf available of the New York Constitution through the auspices of the Department of State, Division of Administrative Rules. It's extremely dense stuff to have to plow through, but it does answer a great many questions about the hows and whys of state government. It's better in small doses. Enjoy.

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#330 Third Department Caselaw Round-Up for March 29, 2012, Part 8 of 11

April 2, 2013

330 Post 03-29-12, Part 8 Third Department March.pngThe first case begs the question: which court should you try your case in? If you pick the wrong one, you may be sorry, thanks to the doctrine of res judicata. Always remember: Family Court is a court of limited jurisdiction. However, Supreme Court is not.

The second case is The Return of SSL §384-b. Be afraid. Be very afraid.

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#329 Third Department Caselaw Round-Up for March 29, 2012, Part 7 of 11

April 2, 2013

329 Post 03-29-12, Part 7 Third Department March.pngIt's so much nicer not having to keep score of how many appeals were affirmed versus reversed. As you can see, most appeals - certainly 75% or more of them - are affirmed on appeal. That's a good rule of thumb: 3 out of 4 cases are affirmed. The other 25% of the cases on appeal encompass all of the other possibilities, from outright reversals to slight modifications to dismissals.

I once had a good friend and mentor tell me something that struck me as odd at the time, but which now strikes me as painfully self-evident: a good trial attorney cannot become better until and unless he perfects an appeal. Why? Because, an appeal is the deconstruction of a trial. You pick at it and pull it apart and put it back together again and try to make sense out of it all. You slice and dice. And once you do this a few times, you get the visceral feel for how a trial SHOULD go forward; the hows and the whys and the whats and the whens.

The best way that I can convey this particular feeling to a non-attorney is simple: as a trial attorney, I feel as if I am an actor on a stage and the audience is NOT the judge (the judge is just another actor; hell, when you get right down to it, the judge is just another attorney, wearing a black dress and elevated a foot or two above the rest of us; just remember that He/She Who Wears The Back Dress Rules!) but, rather, the appellate court. I had damned well better remember all of my lines, because that is all the audience is going to remember - what I say and what I do in front of them. If there is a problem, then it needs to be addressed in front of the audience. Assume nothing; address everything. The play's the thing! And all's well that ends well.

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#328 Third Department Caselaw Round-Up for March 29, 2012, Part 6 of 11

April 2, 2013

328 Post 03-29-12, Part 6 Third Department March.pngTwo more fun-filled cases for your reading pleasure. The first involves the use of a motion for summary judgment in an Article 10 proceeding. I especially love how the father responded to the motion. The second case illustrates what happens when parents use their children as pawns in manipulative games against the other parent (it usually doesn't end well for the manipulative parent). It also is yet another illustration of the need to get as much as possible On The Record! Because, if it's not in the record, it effectively never happened.

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#327 Third Department Caselaw Round-Up for March 29, 2012, Part 5 of 11

April 1, 2013

327 Post 03-29-12, Part 5 Third Department March.pngAnd here we are at Case #200. While great, it's still cold comfort given the fact that I should probably be somewhere around Case #750 by now, had I been doing this caselaw round-up on a regular basis instead of going off on all sorts of tangents for the past year.

Lots and lots more cases to analyze. However, it really is a labor of love since I am obviously addicted to reading and analyzing all of the (pertinent) cases the Third Department hands down every Thursday at noon. Some Thursdays, you might have to wait until later in the afternoon. On rare occasions, you might have to come back a few days later. It's like being a kid at Christmas, unwrapping the latest and greatest decision from the Third Department.

The first case involves the rarely seen appeal of a PINS case - and the even more rarely seen reversal of such a case on appeal.

The second case involves ... yet another pedophile!

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#326 Third Department Caselaw Round-Up for March 29, 2012, Part 4 of 11

April 1, 2013

326 Post 03-29-12, Part 4 Third Department March.pngThe first case is another TPR case via SSL §384-b, but with a twist. The twist is this: do not take the grace period provided by a suspended judgment for granted - because it will be your undoing.

The second case involves making sure that you have a comprehensive petition that clearly and definitively alleges a change in circumstances. Otherwise, you will be sorry.

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#325 Third Department Caselaw Round-Up for March 29, 2012, Part 3 of 11

April 1, 2013

325 Post 03-29-12, Part 3 Third Department March.pngThe first case introduces us to QDROs and Majauskas. QDROs are qualified domestic relations orders. Majauskas is a Court of Appeals case from 1984 which sets forth an important formula (and implication) for determining the equitable distribution of pensions, which is then incorporated into a QDRO.

The second case involves SSL §384-b. You know what that means!

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