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

#612 Third Department Caselaw Round-Up for May 30, 2013

May 26, 2014

607 Post 05-30-12 Third Department May.pngI don't know what it is lately with all these short decisions. Overall, the Third Department seems to be trending towards writing shorter decisions (like the Fourth Department). In the case at hand, the shortness of the decision is due entirely to the mootness of the appeal.

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#611 Third Department Caselaw Round-Up for May 30, 2014

May 25, 2014

606 Post 05-30-12 Third Department May.pngWhile sex offender cases are very often affirmed on appeal, every now and again they get reversed on appeal, as this one was. However, this is not so much a win for the defendant as it is an administrative adjustment to the underlying judicial determination.

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#608 Third Department Caselaw Round-Up for May 23, 2013

May 22, 2014

605 Post 05-23-12 Third Department May.pngSeems there is a surfeit of short criminal law cases to cover. Not to worry: longer cases will be coming from the looks of the decisions from May 30, 2013.

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#607 Third Department Caselaw Round-Up for May 23, 2013

May 21, 2014

604 Post 05-23-12 Third Department May.pngI analyze DWI decisions if only because they tend to be the most colorful and humorous. Very often, the fact pattern found in such cases makes you laugh out loud at the asininity of the defendant. Here, though, the Third Department completely gutted the fact pattern from its decision.

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#606 Third Department Caselaw Round-Up for May 23, 2013

May 20, 2014

603 Post 05-23-12 Third Department May.pngAnother short one. I know it's a bit of a disappointment to analyze short decisions, but it's much more common to come across long decisions. Every now and again, I'll come across interesting but short decisions.

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#605 Third Department Caselaw Round-Up for May 23, 2013

May 20, 2014

602 Post 05-23-12 Third Department May.pngAnd here we have yet another Anders brief. Always a roll of the dice, as you well know. In this instance, the Third Department agrees with appellate counsel and relieves her of her obligations.

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#604 Third Department Caselaw Round-Up for May 16, 2013

May 18, 2014

601 Post 05-16-12 Third Department May.pngAnd here is another case that is effectively "Part 2" of the case I previously analyzed in blog post #603. This case is a perfect example of the need for sophisticated encryption an ALL electronic devices. Otherwise, get ready to learn the hard way.

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#603 Third Department Caselaw Round-Up for May 16, 2013

May 18, 2014

600 Post 05-16-12 Third Department May.pngIf you read these decisions on a regular basis, over the course of a given period of time (say a year), you will come to recognize that there are certain judges that tend to be appealed with some modicum of regularity (i.e., a lot!). And, of those judges, a handful tend to be reversed on appeal with a corresponding regularity. Judge Hall, the presiding judge of the Warren County Court, is one of those judges. And here is "one of those decisions". And, as always: read the footnotes (there's only one!).

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#602 Third Department Caselaw Round-Up for May 16, 2013

May 16, 2014

599 Post 05-16-12 Third Department May.pngIf one of your nightmares involves being wrongly accused, then this is the case for you. If that given nightmare also involves you being specifically and wrongfully accused of sexual assault, then this case is especially for you. Remember: as you read the decision, imagine yourself to be the young defendant in this case. Scary stuff. Thankfully, this defendant had one of the best appellate attorneys in the entire Third Department arguing his case. Unfortunately, even she was unable to garner a reversal.

In a way, I hope this defendant actually did what he was accused of doing. Otherwise, the legal system has just destroyed a young person's life. Conversely, if this defendant actually did what he was accused of doing, then he deserves to have his life destroyed.

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#600 Third Department Caselaw Round-Up for May 16, 2013

May 14, 2014

598 Post 05-16-12 Third Department May.pngWow! 600 blog posts! Hard to believe. Some days, these posts are difficult to write and it feels like I'm grinding them out. Other days, I can type away at the computer all day (on a day off) and create as many as 6 or 7 of them in one (very long) sitting.

And, if you haven't already guessed, I love writing appeals as much as I love reading and analyzing them. Give me a call if you've got any questions with regard to any possible appeal. I'd be glad to help. And, as with all other clients, the first hour of the consultation is completely free.

Back to the decisions ...

As if one rejected Anders brief wasn't enough, here we have a second one. Over time, you begin to recognize a pattern with Anders briefs. They tend to be submitted by newbies to the niche of appellate practice. I know, I was one of them. However, when you look to the more established appellate counsel (who shall remain nameless but, if you read these decisions as often as I do, you realize there are a good solid two dozen veteran practitioners in the Third Department), very rarely do they submit Anders briefs and, on those rare occasions when they do, they are rarely overruled by the Third Department.

I also remain of the opinion that, despite what you might think, the Third Department actually WANTS appellate counsel to do as much as they can to avoid filing Anders briefs. After all, an Anders brief is still a brief, so why not just go the extra mile and through in a simple argument or two? How difficult is that?

What the Third Department is really looking for is appellate counsel who is self-confident enough to try to dazzle the hell out of them with compelling legal arguments and incisive legal writing. The Third Department is looking to be entertained, if you will, by a ripping good yarn. Remember: all we have are stories. Tell your story.

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#599 Third Department Caselaw Round-Up for May 16, 2013

May 13, 2014

597 Post 05-16-12 Third Department May.pngThis decision is precisely why I will do everything in my power to avoid filing an Anders brief, even on plea agreements. All you have to do is be as creative as possible to get around the ethical requirement of not appealing frivolous matters. And how frivolous can a thing be when a person's liberty is on the line, huh? Any decent appellate attorney should be able to come up with a creative appeal, nine times out of ten, and not have to suffer the indignity of being slapped down (hard!) by the Third Department for failing to rigorously scour the record ... as happened here.

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#598 Third Department Caselaw Round-Up for May 16, 2013

May 12, 2014

596 Post 05-16-12 Third Department May.pngHere is an interesting decision that could have EASILY gone the other way if someone hadn't thought to have the children testify in court. Also, as I read this decision, I had a sneaking suspicion that I knew who wrote it. And I was right: Justice McCarthy! I LOVE THIS GUY! See his fine work in blog post #562. When it comes to procedural and substantive due process, Justice McCarthy holds judges' feet to the fire. We need far more judges like Justice McCarthy.

Let me just say this: Justice McCarthy renews my faith in the legal and judicial systems with his insistence that due process be paramount in all considerations as to the outcome of any litigation. I would much rather lose an appeal with Justice McCarthy than win one without him because only then would I be certain that my client received the highest standards of due process available to him or her. So, yeah, just as there are good wins, there are good losses as well.

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#597 Third Department Caselaw Round-Up for May 16, 2013

May 11, 2014

595 Post 05-16-12 Third Department May.pngYes, another sex offender case. These cases remind me of those ubiquitous bumper stickers concerning motorcycles, but with a twist: "Sex offenders - they're EVERYWHERE!" One of these days, I hope to be able to analyze the various laws/crimes that result in one's classification as a sex offender should one be stupid and unfortunate enough to be convicted of any of these crimes.

This case is also a reminder of what NOT to do with your computer.

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#596 Third Department Caselaw Round-Up for May 9, 2013

May 10, 2014

594 Post 05-09-12 Third Department May.pngAnother day, another sex offender. This time, the sex offender stumbles into trouble for failing to register as a sex offender at his new address.

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#595 Third Department Caselaw Round-Up for May 9, 2013

May 9, 2014

593 Post 05-09-12 Third Department May.pngHere's yet another in a long line of cases involving a parent who just can't get her act together in time to avoid the seemingly inevitable termination of her parental rights. You know the drill.

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#594 Third Department Caselaw Round-Up for May 9, 2013

May 8, 2014

592 Post 05-09-12 Third Department May.pngHere is a case of a pro se sex offender scoring a partial win on appeal. What I like about these sorts of decisions is that they tend to be short with a relatively clear fact pattern. Plus, the sheer number of these decisions makes me realize that there are many more sex offenders living among us than I ever imagined. Think about that.

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#593 Third Department Caselaw Round-Up for May 2, 2013

May 6, 2014

591 Post 05-02-12 Third Department May.pngThe best advice I can give my clients, in most cases, should also be the most obvious: you need to LOVE your children more than you HATE their mother/father. If you can do that, then you can avoid having the court micro-manage your life. If you can't, then you can lose custody and be placed under a burdensome order. Your choice.

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#592 Third Department Caselaw Round-Up for May 2, 2013

May 2, 2014

590 Post 05-02-12 Third Department May.pngThe use of summary judgment in family court cases can be amazingly effective, when used properly (which usually occurs in situations involving derivative neglect or abuse). Most often, it is used by DSS to cut the guts out of the respondent's case, thereby allowing the court to proceed directly to a dispositional hearing. Most respondents will see this as a denial of due process since they expect to have their day in court to explain their side of the story. However, in the case of derivative neglect, if the prior neglect is proximate in time to the derivative neglect, and the cause of the initial neglect is actually ongoing, then the likelihood of a motion for summary judgment, and its success, grows substantially. I know this to be true because I'm currently in the midst of a case that is similar to this one.

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#591 Third Department Caselaw Round-Up for May 2, 2013

May 1, 2014

589 Post 05-02-12 Third Department May.pngHere's a lovely one for you. And if you don't think footnotes are important, then I direct you to read the short sentence that is footnote #1. Each of those eleven words were carefully considered and the sentence paints a picture of visceral rage from one perspective (that of the defendant), and visceral contempt from another (that of the Third Department itself). Now, try to tell me that words aren't extremely powerful weapons. Just remember this: the Third Department emotes through its footnotes. Think of footnotes as pressure-release valves.

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#590 Third Department Caselaw Round-Up for April 25, 2013

April 30, 2014

588 Post 04-25-13 Third Department April.pngHere is a strange little case that concerns a very narrow issue of law that I'm guessing most divorce attorneys will never see. It also illustrates that we can bump into the wall between Church and State in places where we least expect to find it. This case also calls into question a very basic tenet that every attorney learns in the first year of law school: that while caselaw from other judicial departments in New York State is informative and persuasive, it is not controlling. Here, under "special" circumstances, the Third Department states that this is not necessarily so.

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