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#500 Third Department Caselaw Round-Up for December 20, 2012, Part 8 of 10

November 18, 2013

500 Post 12-20-12, Part 8 Third Department December.pngWow: I've written 500 of these posts! I wrote the first post back on September 28, 2011, when I had no idea what to write about. Obviously, I've spent most of my time writing about family law, matrimonial law, some criminal law, some vehicle and traffic law, and a lot about appeals. Those are the five areas of law in which I am most interested. I have to admit that even after twenty-one years of practicing law, it's still fun. And it should be. After all, if you're not passionate about what you do in life, then why the hell are you doing it? Life's too short not to love what you do for a living. I'm coming up on the big 5-0 next month. I can actually imagine doing this gig, so long as I have my health, until I'm 80. Why retire when you're doing what you love? 30 more years of fun! Seriously!

The first case is a lesson in "What Not To Do!" in a hearing as to whether or not you are in willful violation of a court order for child support.

The second case is an example of why it is always in your best interests to expeditiously comply with court orders. Because you never know what tomorrow might bring.

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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#499 Third Department Caselaw Round-Up for December 20, 2012, Part 7 of 10

November 18, 2013

499 Post 12-20-12, Part 7 Third Department December.pngThe first case illustrates how quickly a change in circumstances can arise. It may only take a matter of months, weeks, days, or even hours (!), all depending upon the severity of the change in circumstances.

The second case makes me proud. Why? Because the Third Department herein reaffirms that due process can only be assured when an indigent litigant's right to counsel is explicitly and unequivocally waived and supported by the requisite colloquy on the record. In other words: judges had better make damned sure that the litigants who come before them have both been informed of their right to counsel and that the litigants have intelligently, knowingly, and voluntarily waived said right to counsel on the record. I consider this to be Judging 101.

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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#498 Third Department Caselaw Round-Up for December 20, 2012, Part 6 of 10

November 17, 2013

498 Post 12-20-12, Part 6 Third Department December.pngThe first case is a truly rare decision whereby a trial court's classification of a defendant as a level 3 sex offender is actually reversed on appeal, with the defendant thereafter classified as a level 2 sex offender. It also supports my suspicion that judges look for any excuse whatsoever (even if unsupported by the facts or the law) to classify sex offenders at the highest level possible.

The second case pertains to a court in which I very frequently find myself - my home county of Saratoga. I am before Judges Hall and Jensen on a regular basis, so it very much behooves me to stay abreast of how often each of them are affirmed or reversed on appeal.

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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#497 Third Department Caselaw Round-Up for December 20, 2012, Part 5 of 10

November 17, 2013

497 Post 12-20-12, Part 5 Third Department December.pngThe first case is an excellent illustration of wasteful dissipation and its effects upon equitable distribution.

The second case is yet another instance where I completely disagree with the Third Department. In fact, this decision sets a bad precedent. The trial court screwed up and so did the Third Department. Due process, anyone?

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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#496 Third Department Caselaw Round-Up for December 20, 2012, Part 4 of 10

November 16, 2013

496 Post 12-20-12, Part 4 Third Department December.pngThe first case involves a true rarity: the granting of a motion for summary judgment in an Article 6 case. Here's a bit of advice: if this EVER happens to you, MAKE SURE THAT YOU FILE A NOTICE OF APPEAL! Why? Because it is almost ALWAYS inappropriate for a motion for summary judgment to be granted in Article 6 cases without there being either a certified judgment of conviction or an adjudication of neglect or abuse.

The second case is a trip down Memory Lane.

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#495 Third Department Caselaw Round-Up for December 20, 2012, Part 3 of 10

November 16, 2013

495 Post 12-20-12, Part 3 Third Department December.pngThe first case is an excellent example of the use of the extremely effective tool (weapon?) of conforming the pleadings to the proof. It's also a great analysis of a family offense and an order of protection. Non-attorneys should take the time to read this case to better understand family offenses.

The second case reminds me of some exceedingly wise advice from a person who taught me how to take and ace my LSATs: when you get right down to it, law school, like life, is all about the simplest of words - conjunctions and prepositions; always pay attention to those two families of words. This has proven to be amazingly good advice.

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#494 Third Department Caselaw Round-Up for December 20, 2012, Part 2 of 10

November 15, 2013

494 Post 12-20-12, Part 2 Third Department December.pngThe first case is a nice, short decision which teaches a hard lesson.

The second case is another nice, short decision, this time teaching another, though less harsh, lesson.

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#493 Third Department Caselaw Round-Up for December 20, 2012, Part 1 of 10

November 15, 2013

493 Post 12-20-12, Part 1 Third Department December.pngThe first case is quite unusual insofar as it raises what is, to me, a novel question of law: Does a custodial parent have the authority to commence a proceeding to terminate the parental rights of the non-custodial parent on any grounds? My gut response was "Hell, no!" The Third Department agrees, though is somewhat less effusive.

Still, I'm somewhat jealous of appellate counsel for being in the amazing position of potentially making mind-blowing new law on this issue. Once again, I maintain that the more creative you are on appeal, the greater the likelihood that the Third Department will give serious consideration to your arguments. This appeal took cojones of brass.

The second case really needs to be read to be believed. Seriously: you can't make this stuff up!

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

November 15, 2013

492 Post-1 Depositphotos_2286999_XS.jpgAutumn has always been a bittersweet time for me. Great memories of people and places that are long gone. Some days, it literally hurts to remember. That's where the music comes in. Like a balm for the soul, the music takes the pain away. Don't mourn the loss of your best friend! Instead, peruse the kraut rock artists he so loved. Suddenly bummed because you realize that your dead friend's kids are now in their thirties? Tune in to the blues rock he turned you on to. Shocked to learn that the place where you lost your virginity is now a friggin' strip mall? Once again, dive into the music and the various tunes that were playing when you, um, had your fun.

Change sucks. Sure, it's inevitable. But it doesn't make it suck any less. And, since I don't abuse drugs or alcohol, or womanize, or indulge in any other vices, the only thing that gets me through is my music. Music defines me. Pick a year. Hell, pick a month! And I will recall the soundscape from that time in my life, and, through the songs, I'll remember a time when I wasn't saddled with the worries and regrets of a middle-aged man.

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

November 14, 2013

491 Post-1 Depositphotos_2286999_XS.jpgI have no idea what it is about autumn and Thanksgiving, but this time of the year, all I want to do is listen to music. Screw TV, reading, and just about everything else. All I want is my music. And, depending upon the weather, the temperature, or my mood, I might want any of a wide variety of music. If I can't decide what I want, my default setting is almost always one of The Big Five: the Beatles, the Stones, Zep, Floyd, or Tull. Like the fingers of a hand, these five are all the music I will ever truly need.

The Beatles remind me of my early childhood, singing in the car to the radio as we drove to Poughkeepsie, visiting friends and family. The Stones remind me of later childhood and hiding out in the woods and spying on people. Zep is early adolescence and the allure of girls. Floyd is late adolescence when I thought I knew everything and wanted to zone out to some cosmic bliss (you know what I'm talkin' about). And Tull? Tull is everything that came after. Tull is life up to now. For, as we all know: life's a long song.

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#490 In Memoriam: October 2013 Deaths

November 14, 2013

490 Post-1 Depositphotos_5480853_XS.jpg115. Tom Clancy, 66, April 12, 1947 - October 1, 2013:
Writer; American novelist; undisclosed illness

I read his first novel, "The Hunt For Red October", in 1984, in college, and loved it, despite its obvious love affair with conservative American politics throughout (yeah, definitely NOT a good thing). It's a better tale than it is right-wing propaganda, which one cannot honestly state with regard to his succeeding novels. In his second novel - also a ripping yarn - "Red Storm Rising", from 1986, Clancy's nostalgia for the Cold War became obvious and more of his politics seeped into the work. By the time I reached his sixth novel, "The Sum Of All Fears", in 1991, the story-telling had become formulaic and the propaganda had become laughable. So, naturally, I stopped reading him. Apparently he published another fourteen novels after this, having become a reliable publishing brand à la Stephen King. St. Ronnie Raygun loved him, which should have been the kiss of death but, instead, was accepted as high praise by the writer himself. Uh-huh. 'Nuff said.

Still, I will say this: when adapted for the big screen, it seems that all of his novels are truly kick-ass. That's gotta count for something.

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#489 Third Department Caselaw Round-Up for December 13, 2012, Part 3 of 3

November 14, 2013

489 Post 12-13-12, Part 3 Third Department December.pngThe first case brings up a pedantic point that drives me nuts on these appeals: there is no appeal of right from an order of fact-finding in a permanent neglect proceeding. Yeah, I get it and so what: if the order of disposition is nonetheless appealed, such an appeal automatically raises the order of fact-finding on appeal. So, the lesson here is simple: if you can't remember this fatal rule, then just file a notice of appeal on BOTH orders (which is what many attorneys do - just in case).

The second case is just another criminal appeal involving a sex offender.

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#488 Third Department Caselaw Round-Up for December 13, 2012, Part 2 of 3

November 7, 2013

488 Post 12-13-12, Part 2 Third Department December.pngThe first case best illustrates how the ponderous appellate process can easily render an appeal moot.

The second case shows you how incredibly complicated contested divorces can become on appeal.

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#487 Too Old To Rock And Roll; Too Young To Die

November 7, 2013

487 Post Depositphotos_1831593_XS.jpgWe haven't had a random rant in quite some time. So, let me fire up my Indignation Machine and we'll get right to it ...

Sometimes, ya gotta know when to say when. Or, as Clint might say, "a man's gotta know his limitations". And, yes, "they" are overwhelmingly male. And that ain't a good thing.

I'm soooooooooo glad to see that Proposition 6, raising the mandatory retirement age for judges (from 76 to 80 for Supreme Court judges, and from 70 to 80 for Court of Appeals judges; moreover, no other judges were included; I guess some judges are more equal than others!), went down in flames. And it looks like I'm not the only one. The proposal was thoroughly trounced with over 60% voting "HELL NO!" Look, it's bad enough that most Upstate judges are white, male, hetero, and largely conservative, but to have them be as old as 80!!?? Gimme a break!

And how's this for an ethical conflict of interest ... Proposition 6 was apparently the brainchild of a judge (who shall herein remain nameless) who would have directly, personally benefitted if this measure had passed. How lovely! It also reeks of desperation. My advice? Put down the gavel and take up a new hobby. Bocci ball, perhaps? Spending more time with your children, grandchildren, and great-grandchildren? Sleeping? But not judging. For the love of god, NOT judging.

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#486 Third Department Caselaw Round-Up for December 13, Part 1 of 3

November 6, 2013

486 Post 12-13-12, Part 1 Third Department December.pngThe first case is a felony DWI matter which the Third Department makes quick work of.

The second case involves some procedural complexities which do not often arise in criminal cases unless a co-defendant is involved. Appellate counsel did a fine job of issue-identification.

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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