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July 2013 Archives

#402 Third Department Caselaw Round-Up for July 12, 2012, Part 2 of 12

July 21, 2013

401 Post 07-12-12, Part 2 Third Department July.pngThe first case is another instance where the Third Department sometimes opts to micromanage equitable distribution on appeal, right down to the penny which, while laudable, nonetheless seems a bit obsessive-compulsive.

The second case involves yet another painful lesson in how important it is to very carefully and very artfully draft a separation agreement. Do not assume anything. In fact, the safer bet is to presume that the person or party who has to interpret the contract is so mentally deficient that they have to have EVERYTHING spelled out and easily defined for them. In other words, draft such contracts in such a way that they can be easily understood by a kindergartener. Otherwise, future litigation may not quite come out as you may have intended.

Check out the website and find "Fees" on the right of the upper navigation bar. Click "Fees" and scroll down to "12Q: Do you handle appeals and, if so, how much do you charge?" I am certain that you will discover that my rates are very hard to beat. Give me a call or send me an email.

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#401 Third Department Caselaw Round-Up for July 12, 2012, Part 1 of 12

July 20, 2013

400 Post 07-12-12, Part 1 Third Department July.pngThe first case is a great example of "no contact means no contact". And some people just don't get it. In fact, some people don't get it to the point where they have to be indicated by DSS before they might ever get it at all.

The second case illustrates what can happen when a defendant can prove the likelihood of ineffective assistance of counsel. Also, we meet once again the alliterative Mr. Collateral Criminal Consequences.

Check out the website and find "Fees" on the right of the upper navigation bar. Click "Fees" and scroll down to "12Q: Do you handle appeals and, if so, how much do you charge?" I am certain that you will discover that my rates are very hard to beat. Give me a call or send me an email.

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#400 Third Department Caselaw Round-Up for July 5, Part 4 of 4

July 19, 2013

399 Post 07-05-12, Part 4 Third Department July.pngGood day, eh? And welcome to blog post #400. Thank you for your continuing interest in these various blog posts. I do try to make them interesting with my hopefully colorful analysis of what might otherwise be very dry and eye-glazing decisions. I truly do enjoy reading these often quite interesting decisions handed down (usually) every Thursday from the Third Department.

Obviously, I'm slightly more than a year behind now, but I hope to be able to start catching up soon, especially since there are many weeks in which only a handful of decisions are issued. Still, at some point, I will have to get back to posting twice or more per day if I hope to catch up soon.

Lastly, while I have actually had more people than I would've thought contact me with regard to not having a comments section, I do entertain private emails. I cannot have a comments section on this blog for what should be an obvious reason: I must at all times endeavor to uphold a high standard of ethics with respect to the legal profession.

Basically, I simply do not have the time to police a comments section for the inevitable troll or potty mouth or ad hominem attack upon an attorney, court or judge. So, enjoy. And, if you have any questions, you can always contact me via email. I usually try to reply within 24 hours.

Again, thanks for reading.

Also, here's the deal: I AM AN APPELLATE COUNSEL MYSELF. Why do you think I'm so addicted to analyzing all of these appellate court decisions? Check out the website and find "Fees" on the right of the upper navigation bar. Click "Fees" and scroll down to "12Q: Do you handle appeals and, if so, how much do you charge?" I am certain that you will discover that my rates are very hard to beat. Give me a call or send me an email.

Continue reading "#400 Third Department Caselaw Round-Up for July 5, Part 4 of 4" »

#399 Third Department Caselaw Round-Up for July 5, Part 3 of 4

July 18, 2013

398 Post 07-05-12, Part 3 Third Department July.pngThe first case is an example of how courts generally jealously guard their jurisdiction and are rather loath to give it up. It is also a case with a rather complex fact pattern which, in turn, impinges upon various doctrines of law. Also, this case is an excellent example of why one should always give serious consideration to filing a motion to dismiss for lack of jurisdiction. Because if you fail to timely object to a court's alleged lack of jurisdiction you just might find that your failure to object (or your belated objection) will, in and of itself, be construed as consent to the court's jurisdiction. And you will then be stuck with the consequences of your failure to timely act, as happened in this particular case.

The second case perfectly illustrates that there is no such thing as an automatic stay in Article 6 family court matters. It also helps if one reads the applicable statutes.

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#398 Third Department Caselaw Round-Up for July 5, 2012, Part 2 of 4

July 17, 2013

397 Post 07-05-12, Part 2 Third Department July.pngThe first case is just nasty. There's no other way to describe it. Then again, when is incest anything but nasty?

The second case concerns abandonment in the context of adopting a child. If you aren't married, you're not paying child support, and you do not have a meaningful relationship with your child - and you are uncaring enough to let more than 6 months go by without so much as calling your child - then you deserve the prospect of having your child adopted "right out from under you". You're either a full-time parent or you're not. A child deserves no less.

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#397 Third Department Caselaw Round-Up for July 5, 2012, Part 1 of 4

July 16, 2013

396 Post 07-05-12, Part 1 Third Department July.pngThe first case deals with a situation that is fairly common: that of a step-parent or significant other seeking visitation with the child he or she has become close to. Except, in New York State, with regard to such visitation, step-parents and significant others have no such right.

The second case brings up collateral estoppel, just as the first brought up equitable estoppel. Where equitable estoppel was ineffective in the first case, collateral estoppel is effective in the second. This is also another illustration of collateral criminal consequences, this time in a family law setting. More importantly, this case illustrates the importance of making an oral motion to dismiss the petition as failing to prove a prima facie case. It also shows the stark difference between certificates of disposition and certified transcripts of plea allocutions.

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#396 In Memoriam: April 2013 Deaths

July 15, 2013

395 Post-1 Depositphotos_2071841_XS.jpg88. Annette Funicello, 70, October 22, 1942 - April 8, 2012:
Actress; American actress and singer; complications from multiple sclerosis

My parents knew her from the original Mickey Mouse Club. I knew her from her peanut butter commercials, as she tried her best to make her pitch for Skippy. However, everyone knew that "Choosy moms choose Jif!"

She was the last person picked for the Mickey Mouse Club and by none other than Walt Disney himself. He allegedly "discovered" her at a dance recital. While under contract to Disney, she co-starred in a number of Disney films and recorded a number of pop record hits in the 50s and 60s.

She then made the jump from Disney to her string of teen idol "beach party" movies with Frankie Avalon in the early 60s.

Her commercials with Skippy came next, starting in 1979.

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

July 14, 2013

394 Post-1 Depositphotos_2286999_XS.jpgAnother thing about this period of time, as well as the music in it, was that it was angry. The Vietnam War was still in full swing and I knew lots of kids whose older brothers were either already over there or scared @#$%less that they would soon be drafted to go over there. Looking back, I'm both amazed and appalled at how easily propagandized we all were; that being in the middle of an undeclared war in Vietnam was as American as apple pie. My parents were staunch conservative Republicans who took their marching orders directly from their Party and their Dear Leader, Richard Milhouse Nixon. And we all know how that turned out.

Being weaned on all that anti-war music made me as different from my parents as night is to day. To this day, my parents remain diehard conservative Republicans who let Fox News do their thinking for them. Meanwhile, having grown up to be a New Deal Democrat, there is no political party left to represent me and my interests other than the up-and-coming Green Party. The Democrats? Get real.

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

July 13, 2013

393 Post-1 Depositphotos_2286999_XS.jpgYeah, I know, I'm slacking off. I had a number of professional and personal matters that needed my immediate attention for a few weeks. In addition to listening to the May 1973 playlist, I've been listening to a lot of old music from the early 1960s, when I was a little kid. It really is amazing the memories those songs bring back, mostly of people long dead. People make and retain memories in all sorts of ways. For me, music is memory.

Lots of these tunes simply don't hold up over 40 years. Okay, most of them don't, I'll admit. Still, there are at least a dozen that do and even the ones that don't remain near and dear to me after all these years. I remember, even back then, in the early 1970s, thinking that this music was so amazing that no future generation could ever improve upon it. So far, I think I've been correct in that assumption.

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#393 Third Department Caselaw Round-Up for June 28, 2012, Part 2 of 2

July 12, 2013

392 Post 06-28-12, Part 2 Third Department June.pngThe first case is both a mess and a hot potato that has jumped from court to court with seemingly no end in sight.

The second case puts the cart before the horse. Namely, it jumps to best interests without so much as a how-de-do as to change in circumstances. This strikes me as setting a bad precedent.

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#392 Third Department Caselaw Round-Up for June 28, 2012, Part 1 of 2

July 11, 2013

391 Post 06-28-12, Part 1 Third Department June.pngThe first case is another Anders Brief.

The second case is one of those very rare cases in the Third Department - an opinion with not just one but TWO dissenting opinions. And you know what that means: hello, Court of Appeals!

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#391 Third Department Caselaw Round-Up for June 21, 2012, Part 3 of 3

July 10, 2013

390 Post 06-21-12, Part 3 Third Department June.pngEvery now and then, the Third Department surprises me. This decision - yet another sex offender decision - is one of those pleasant surprises. The trial court made a mockery of the whole SORA process. And the Third Department fixed it - and without a remittitur! Too often the Third Department remits SORA appeals so that the county court gets a second bite at the apple, which I've always seen as a way to make the unpalatable palatable, like seasoning rotten meat.

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#390 Third Department Caselaw Round-Up for June 21, 2012, Part 2 of 3

July 9, 2013

389 Post 06-21-12, Part 2 Third Department June.pngThe first case is an interesting example of the offensive use of a deposition in an Article 10 case against a non-respondent parent, in this case the father.

The second case involves the rearing of the death's head otherwise known as ... SSL ยง384-b. But, fear not! Because this is one in which DSS LOSES! That's right! If you ever wondered where the dividing line between preponderance of the evidence and clear and convincing evidence was, then you might want to read this case because it sits very close to that line - but never quite crosses the threshold for clear and convincing.

I attribute the outcome of this otherwise rare case to the excellent lawyering of the mother's trial attorney(s) as well as the excellent work done by her appellate attorney. Damn fine job!

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#389 Third Department Caselaw Round-Up for June 21, 2012, Part 1 of 3

July 8, 2013

388 Post 06-21-12, Part 1 Third Department June.pngThe first case will RADICALLY change the way attorneys defend their clients in FCA Article 10 cases. I certainly know that it will change the way I practice law in this area. Why? Because, thanks to this case in particular, my client's Article 10 case was gutted - and is now on appeal.

The second case is one of those uncommon cases where the Third Department effectively decides that it's unhappy with the trial court's arithmetic and opts to micro-manage matters that it is usually very happy to leave to the discretion of the trial court. It also runs an unusual 10 pages and cites many cases. I may be wrong but I suspect that cases like this are ways that the Third Department telegraphs to practitioners that this is the "new baseline" they want to see in use in the future.

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#388 Third Department Caselaw Round-Up for June 14, 2012, Part 3 of 3

July 7, 2013

387 Post 06-14-12, Part 3 Third Department June.pngCheck out the defendant's name on this one. As luck would have it, this one is yet another pedophile case. The more I read cases like this, the more I realize that the best bet is to trust no one with the safety and welfare of your children. You simply can not afford to do otherwise.

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#387 Third Department Caselaw Round-Up for June 14, 2012, Part 2 of 3

July 6, 2013

386 Post 06-14-12, Part 2 Third Department June.pngAnd here's another sex offender case for you! Again, I showcase these decisions not out of some undue and sick fascination with sex offenders, but rather to focus on crimes against children. Sex offenses against children are especially heinous as they likely forever damage children's psyches and place them at greater risk of becoming sexual predators themselves.

The second case is a stellar example of an appellate attorney who is quite gifted and who knows how to fight tooth and nail for his client on appeal. Very well done!

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#386 Third Department Caselaw Round-Up for June 14, 2012, Part 1 of 3

July 5, 2013

385 Post 06-14-12, Part 1 Third Department June.pngThe first case reveals that pedophiles come from all walks of life. In fact, they might even be doctors. However, once they're unmasked for who/what they really are, they can kiss that medical license goodbye.

The second case is a crafty illustration as to why the general populace both reveres and despises attorneys. Oh, the webs we weave with words (and alliteration)!

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#385 Third Department Caselaw Round-Up for June 7, 2012, Part 3 of 3

July 4, 2013

384 Post 06-07-12, Part 3 Third Department June.pngHappy Independence Day! One of my favorite holidays of all time. Why? One word: fireworks. Especially this crazy little thing called an M-80. Oh, the stories I could tell (now that the statute of limitations has long run out!)! You just know you've got great childhood memories when you can hear those things explode in your dreams. And the visual is ALWAYS priceless, an amazing plume of water erupting seemingly from nowhere, blasting into the sky. Good times.

All in all, I favored the less lethal varieties of fireworks since I rather liked my various extremities. As a kid, I remember my father loading up on these babies at places like South Of The Border, hiding them somewhere in the trailer, spiriting them away until the fourth, and then cutting loose. You name it, my dad had it: Roman candles, gorilla bombs, bottle rockets, sparklers, firecrackers, yellow jackets, pinwheels, blackjacks, star bursts, lava bombs, and god knows what else, with everything wrapped in brilliant colors with all sorts of Chinese characters, giving it all an exotic (and ominous) flavor.

Funny, despite what were probably a lot of near misses, none of us ever got hurt. The best part was when, years later, I figured out that a really good steel pipe could increase the sound of the blast by an order of magnitude. Holy crap, you'd swear that someone had dragged out the artillery! Yowza!

Hey, now, be safe and don't blow yer damned fingers (or hand!) off, will ya!?

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#384 Third Department Caselaw Round-Up for June 7, 2012, Part 2 of 3

July 3, 2013

383 Post 06-07-12, Part 2 Third Department June.pngHey, HEY! Back again. Very busy, yadda, yadda, yadda. Here are two more interesting cases to ponder ...

The first case concerns what happens when you simply ignore a court order. Yes, that's right, you can go to jail.

The second case involves ... yes, that's right ... a sex offender. Gee, I wonder what happens to him on appeal.

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