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Results tagged “Caselaw Round-Up” from Upstate New York Family Lawyer Blog

#580 Third Department Caselaw Round-Up for April 18, 2013

April 20, 2014

579 Post 04-18-13 Third Department April.pngAs much as I love delving deep into a complicated decision, which might entail reading it a half-dozen times to fully glean every last nugget of wit and wisdom from it, it is refreshing every now and then to have a brief decision to review in a single reading and then move on to the next one. So, here's another Anders brief.

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#579 Third Department Caselaw Round-Up for April 18, 2013

April 19, 2014

578 Post 04-18-13 Third Department April.pngEver wonder what would happen if you took a plea deal, made bail, and decided that you wanted to indulge in some irresponsible behavior, and then decided that you really didn't want to appear for your sentencing? Well, wonder no further.

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#578 Third Department Caselaw Round-Up for April 18, 2013

April 18, 2014

577 Post 04-18-13 Third Department April.pngWow. I've now analyzed 500 decisions from the Third Department. Hopefully, that's just the beginning in a long line of these wonderful decisions. As I have repeatedly mentioned, they are issued almost every Thursday, usually in the early afternoon. And, like clockwork, every Thursday I eagerly await lunchtime so I can get on the computer and check out the Third Department's website. Some weeks are slim pickings while other weeks have almost two dozen pertinent cases to look at.

To me, every Thursday is as though the Third Department has issued an anthology of its work - a package of short stories to both educate and entertain. But that's just me.

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#577 Third Department Caselaw Round-Up for April 18, 2013

April 17, 2014

576 Post 04-18-13 Third Department April.pngI guess it's been a while since we've seen an Anders Brief. Well, wait no longer.

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#576 Third Department Caselaw Round-Up for April 11, 2013

April 16, 2014

575 Post 04-11-13 Third Department April.pngWhile this case is ostensibly one involving a sex offender, it's really more about how much stupid can be stored in a single person.

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#575 Third Department Caselaw Round-Up for April 11, 2013

April 16, 2014

574 Post 04-11-13 Third Department April.pngIf the issue of children being sexually abused isn't horrible enough, here is a case wherein a child is brutally beaten and killed. When I first read this decision, I thought the defendant was a monster. Upon further readings, I think the defendant is just a normal human being who, when he lost control of his temper, also lost all sense of proportionality as he handed out a fatal beating to a young child. No anger management skills + few parenting skills = horrible consequences. This happens all too often.

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#574 Third Department Caselaw Round-Up for April 11, 2013

April 14, 2014

573 Post 04-11-13 Third Department April.pngIt's sex offender time once again. Which means it's time once again to pretend to engage in due process.

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#573 Third Department Caselaw Round-Up for April 11, 2013

April 13, 2014

572 Post 04-11-13 Third Department April.pngGet ready for another really sick one. And it gives the phrase "snuggle time" a horrible new meaning.

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#571 Third Department Caselaw Round-Up for April 4, 2013

April 11, 2014

571 Post 04-04-13 Third Department April.pngAnd here we are at last: an appeal of mine. I remember it well. I agonized over submitting an Anders brief on this one simply because there was so little to work with. And, largely because I have now reached the point where I loathe submitting Anders briefs wherever and whenever I can, I opted to get a bit creative. Not to worry: the Third Department saw right through me. So, why did I do it? Sorry, but I could not let such a beautiful fact pattern go to waste. I mean, c'mon! How many times are you going to get the chance to tell the tale of a guy with a machine gun - a machine gun! - in his trunk!?

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#570 Third Department Caselaw Round-Up for April 4, 2013

April 10, 2014

570 Post 04-04-13 Third Department April.pngAnd now for something not so completely different: a level 3 sex offender. Also, when something specific is mentioned in a piece of writing, it's almost always mentioned for a particular reason. Otherwise, why bother to mention it when you could simply gloss over it with a generality. No, my guess is that some judge or chief clerk in the Third Department is not overly fond of ... dare I say it? ... Chuck E. Cheese.

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#569 Third Department Caselaw Round-Up for April 4, 2013

April 9, 2014

569 Post 04-04-13 Third Department April.pngThis is a depraved one, so you've been forewarned. Just reading this decision made me cringe. I simply cannot comprehend how children can be perceived as sexual objects by other humans. Sure, there's a fine line between 18 and 19 and all that jazz. Yes, that's a wonderful distinction I've heard from far too many past clients. But, what about 4? Sickening. And if you really want to wallow in disgust, make sure to read the footnotes.

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#568 Third Department Caselaw Round-Up for April 4, 2013

April 8, 2014

568 Post 04-04-13 Third Department April.pngHere's another short one and it stands for two simple propositions: 1) if you want to appeal an order, then you need to file a timely notice of appeal and 2) if you want the appeal to be timely, then you had best perfect it before the underlying order expires, thereby, in all likelihood, rendering your appeal moot.

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#567 Third Department Caselaw Round-Up for April 4, 2013

April 7, 2014

567 Post 04-04-13 Third Department April.pngTime to get back to the Caselaw Round-Ups. I feel like Alice in Wonderland - having to keep running just to stay in the same place, in this case, about a year behind. It's hard to find the time to write more than one post per day but, until I do, it looks as though I will be a year behind the curve.

Here's a very short decision to get us started on a new month.

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#562 Third Department Caselaw Round-Up for March 28, 2013

April 3, 2014

562 Post 03-28-13 Third Department March.pngAnd here's the last case we have for both the week and the month and, boy, what a doozy of a case! Also, although I'm not usually one for teasers (or tasers!), I will say this: this case is eerily similar to and foreshadows a decision on one of my cases which went up on appeal and scored a stunning reversal for an improperly granted motion for summary judgment (full disclosure: I did NOT perfect the appeal). And it was written by the same judge. And both cases tangentially concern a conflation of the evidentiary standards of 1028 hearings with those of Article 10 fact-finding hearings when the former allows hearsay and the latter does not. When I find the time, I will explore this issue at much greater length.

In any event, while motions for summary judgment can be useful, and can in fact be used to great (devastating?) effect in abuse and neglect cases, this decision is an object lesson that you had damned well better make sure that there are no triable issues of fact in existence. Because if there are, then you are begging to be reversed on appeal, as here. Why? Simple: denial of due process.

Judge McCarthy ... you da MAN!

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#561 Third Department Caselaw Round-Up for March 28, 2013

April 2, 2014

561 Post 03-28-13 Third Department March.pngWe haven't had a grandparents' rights case in a while. And here's a hint if you're a parent seeking to deny visitation with your child to the person who is effectively your mother-in-law: it's generally to be frowned upon to come right out and admit that your relationship with the person is "always going to be hostile". Yes, how lovely, and why is that exactly? Also, you better have a decent reason for the denial of visitation other than stating that you just don't want the person around your child. Look: don't be a dick. The Third Department doesn't like it and won't tolerate it.

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#560 Third Department Caselaw Round-Up for March 28, 2013

April 2, 2014

560 Post 03-28-13 Third Department March.pngHere's a case where the Third Department disagreed with almost everything the Supreme Court judge decided in an action for divorce.

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#559 Third Department Caselaw Round-Up for March 28, 2013

March 30, 2014

559 Post 03-28-13 Third Department March.pngI've read this decision several times and it still doesn't make any sense to me. Nevertheless, it is an interesting decision as it pertains to post-release supervision.

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#558 Third Department Caselaw Round-Up for March 28, 2013

March 30, 2014

558 Post 03-28-13 Third Department March.pngHere's a very short one.

Appeals often take a long time to perfect. In fact, they take so long that, sometimes, it's often better to try to seek more immediate relief in the form of a new petition or action. If you can get the relief you are seeking in a new petition or action, then there is no need to seek that relief via an appeal.

And that is what happened in this case.

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#557 Third Department Caselaw Round-Up for March 28, 2013

March 28, 2014

557 Post 03-28-13 Third Department March.pngHere is a perfect example of why one should always contact an attorney with regard to entering into any sort of contract - in this case, the dissolution of a marriage contract (in the form of a separation agreement). Here is also another example of a person doing things on his own, without an attorney, probably thinking that he was saving himself the hassle of paying an attorney several thousand dollars in fees. And, in the short-term, he was probably right. However, it's always the long-term that one has to be mindful of and it always seems to be the long-term consequences of one's actions that come back to bite one in the ass. Hard. In this case, in the long-term, the costs proved to be in the tens of thousands of dollars. But, hey, you go right ahead and do it yourself and save a few bucks. It's all good, right?

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#556 Third Department Caselaw Round-Up for March 28, 2013

March 27, 2014

556 Post 03-28-13 Third Department March.pngHere is a great two-fer: a decision involving over-the-top parental alienation and a showcase for the talents of the amazing Dr. Elizabeth Schockmel. I have had the pleasure of meeting with Dr. Schockmel in several cases over the years and I have two superlatives as they relate to family court: she is The Best There Is when it comes to crafting a comprehensive and (mind-bogglingly) thorough forensic evaluation of litigants, family members, teachers, etc.; and her forensic evaluations take HOURS to fully review (which is a GOOD thing!) because they can be as much as eighty pages long (or longer).

Also, this case stands for the proposition that you must LOVE your children more than you HATE your ex. Because, if you don't, you could lose custody of your children.

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