I have all kinds of trouble with DWI laws. For starters they are based on bad science. Secondly they are arbitrary. I have driven behind someone who blew a .24 on a breath test and then drove for an hour better than the so called sober people in Nassau and Queens County. I have a problem with any numeric crime based on faulty science determining if someone ought to be arrested without that person doing something wrong. (We are talking about checkpoint arrests where the only "crime" is the the breath test reading). I get tired of the "bleed em and plead em" mentality of much of the bar and the entire DA's office. I hate how DWIs have destroyed the Fourth Amendment and the laws of Evidence. Mostly I hate how it destroys people who are convicted of the crime. It is what I call "stupid crime" as there is absolutely no upside to it.
Nevertheless, it is New Year Eve. Every cop on Long Island is looking to make DWI arrests. By now you ought to know that if you are one hundred and fifty (150lbs.) pounds, you are impaired by alcohol after 2.5 drinks in 2 hours. Please tell me how you get arrested for DWI? You really have to be clueless.
In a number of these cases, people were killed or badly maimed. How hard is this really? If you are drinking, Don't Drive!! Find a designated driver, take a cab or a limo. Take Mass Transit. Stay HOME!!
Amateurs. Really.
Hattip: Newsday (subscription may be required)
Showing posts with label Nassau County (NY). Show all posts
Showing posts with label Nassau County (NY). Show all posts
Thursday, January 02, 2014
Tuesday, December 31, 2013
Bad Cases Make Bad Laws: NYS Ct of Appeals Sustains the Martin Heigden Verdict
It was brought to my attention that one of my previous posts, where I predicted the Martin Heigden verdict convicting him of Murder (depraved indifference) would be overturned, in fact was NOT overturned. I was wrong about justice being done in the case. I am late acknowledging it but I did want to up date the information.
The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.
The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.
As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.
The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.
The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.
As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.
Hat tip: @ericfphillips on Twitter.com
Tuesday, December 24, 2013
Opps She Did It Again!: Nassau County NY District Attorney Kathleen Rice Blows ANOTHER "Flush the Johns" Case
In a now fifth case decided by a different Judge, Nassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidenceNassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidence.
Last October, right before the election (of course) Rice used county money to run one of the dumbest sting operations in her history of dumb cases. It was called 'Flush the Johns". All it has done so far is flush good tax money down the toilet. Wasting literally hundreds of thousands of taxpayer dollars on what was basically a publicity stunt, Rice ran a sting by having police women pose as prostitutes on Craigslist and Backpage.com so that they could lure men into hotel rooms and arrest them. She then put their names and pictures into Newsday (which also should be ashamed of itself) and ruined marriages, professional careers and reputations.
Last week Judge Sharon Gianelli ( a fellow Democrat) dismissed two more cases and then there was one in November that went down the tubes. Now Judge Susan Kluewer (another fellow Democrat) dismissed this case for lack of evidence after a man was charged after entering a hotel room with his buddy (who claimed he had to stop and drop something off to the person in the room). The man neither called the alleged prostitute, nor did he negotiate a fee or pay said fee. In other words the case was the only thing in the room that sucked!! (Sorry I couldn't resist). The man's wife instituted divorce proceedings and the case has destroyed him. There was no probably cause to arrest this man, despite what Rice's overpaid PR guy says. Salvatore Marinello said his client is going to sue Rice and the Nassau County Police for False Arrest and Malicious Prosecution. Even if he loses it is going to tack more tax money onto this losing proposition to defend the county...
Rice just won re-election. Nevertheless she should step down. She and her crew of carpetbagging attorneys and nepotistic appointees have done nothing to protect Nassau and worse yet, she has wasted our dollars, inflated her budget all so she can run for higher office. Kathleen Rice is a disgrace. Shame on her, and Shame on Nassau Voters who supported her re-election.
Related Post: Flush Nassau DA Kathleen Rice: Her Flush The Johns Sting Goes Down the Drain
Last October, right before the election (of course) Rice used county money to run one of the dumbest sting operations in her history of dumb cases. It was called 'Flush the Johns". All it has done so far is flush good tax money down the toilet. Wasting literally hundreds of thousands of taxpayer dollars on what was basically a publicity stunt, Rice ran a sting by having police women pose as prostitutes on Craigslist and Backpage.com so that they could lure men into hotel rooms and arrest them. She then put their names and pictures into Newsday (which also should be ashamed of itself) and ruined marriages, professional careers and reputations.
Last week Judge Sharon Gianelli ( a fellow Democrat) dismissed two more cases and then there was one in November that went down the tubes. Now Judge Susan Kluewer (another fellow Democrat) dismissed this case for lack of evidence after a man was charged after entering a hotel room with his buddy (who claimed he had to stop and drop something off to the person in the room). The man neither called the alleged prostitute, nor did he negotiate a fee or pay said fee. In other words the case was the only thing in the room that sucked!! (Sorry I couldn't resist). The man's wife instituted divorce proceedings and the case has destroyed him. There was no probably cause to arrest this man, despite what Rice's overpaid PR guy says. Salvatore Marinello said his client is going to sue Rice and the Nassau County Police for False Arrest and Malicious Prosecution. Even if he loses it is going to tack more tax money onto this losing proposition to defend the county...
Rice just won re-election. Nevertheless she should step down. She and her crew of carpetbagging attorneys and nepotistic appointees have done nothing to protect Nassau and worse yet, she has wasted our dollars, inflated her budget all so she can run for higher office. Kathleen Rice is a disgrace. Shame on her, and Shame on Nassau Voters who supported her re-election.
Related Post: Flush Nassau DA Kathleen Rice: Her Flush The Johns Sting Goes Down the Drain
Thursday, December 19, 2013
Breaking News: Newsday Special Investigation Into Police Misconduct on Long Island!
Newsday has broken a major investigation into police misconduct and its failures to be properly investigated or punished. Police misconduct puts good citizens at risk and worse makes it very hard for good cops to do their jobs well. It corrupts a system.
Nassau and Suffolk have had this problem for a number of years. Whether it be the band of thugs that run the land of NO on Fire Island, or the insanity of the Nassau cop who beat and shot a taxi driver for no reason in Suffolk, or the many instances of testalying and other misconduct, it has to end.
I have regularly called for the institution of a Civilian Review Board with teeth. Now is the time. We need it here.
What do you think? How do you feel about a Civilian Review Board?
Nassau and Suffolk have had this problem for a number of years. Whether it be the band of thugs that run the land of NO on Fire Island, or the insanity of the Nassau cop who beat and shot a taxi driver for no reason in Suffolk, or the many instances of testalying and other misconduct, it has to end.
I have regularly called for the institution of a Civilian Review Board with teeth. Now is the time. We need it here.
What do you think? How do you feel about a Civilian Review Board?
Monday, April 19, 2010
U.S. News & World Report Law School Rankings Shocker: Hofstra Law School Jumps 14 spots.
US News & World Reports Law School Rankings came out last week and my Alma Mater Hofstra University School of Law just jumped Fourteen (14)points!
Just two years ago, Hofstra did not even qualify as a tier 1 school. Last year it squeaked in at number 99 but this year it establishes itself as a school on the rise.
As an Alum I am of course very proud of both the faculty and staff as well as the students who made this happen. I am not sure of the efficacy of a law school ranking system to begin with, but if you are going to have one, then I guess it is better to be in the top tier than not.
My fear is that the areas that the USNWR survey thinks are important may become over pronounced and take from the school the things that make it relevant to its students.
For example, Hofstra used to bring in a lot of returning students and students that had little or no intention of practicing law once they got their degrees. That number has been reduced to a large extent because of the shear cost of getting a degree these days. Those returning students however provided a real lesson in perseverance in their younger classmates. Their real life lessons made our classes more "interesting" and frankly less obtuse. If this were to be diminished in search of higher ranked applicants and at the expense of the small class sizes, then I would think that while the ranking would be better, the educational experience would be far lessened.
I am sure that the clinic program and trial program (which US News does not rank highly but whose students regularly win trial competitions against those schools that are well rated in these areas) remain a vital part of the curricular and will as the school's reputation grows become a source of US News pride as well.
For those of you who are thinking about law school, I highly recommend Hofstra School of law. Its proximity to both the hub of Long Island (Nassau County) legal practice and that of NYC, makes it an attractive place to go to school and increases the chance of finding a job Tenfold.
Just two years ago, Hofstra did not even qualify as a tier 1 school. Last year it squeaked in at number 99 but this year it establishes itself as a school on the rise.
As an Alum I am of course very proud of both the faculty and staff as well as the students who made this happen. I am not sure of the efficacy of a law school ranking system to begin with, but if you are going to have one, then I guess it is better to be in the top tier than not.
My fear is that the areas that the USNWR survey thinks are important may become over pronounced and take from the school the things that make it relevant to its students.
For example, Hofstra used to bring in a lot of returning students and students that had little or no intention of practicing law once they got their degrees. That number has been reduced to a large extent because of the shear cost of getting a degree these days. Those returning students however provided a real lesson in perseverance in their younger classmates. Their real life lessons made our classes more "interesting" and frankly less obtuse. If this were to be diminished in search of higher ranked applicants and at the expense of the small class sizes, then I would think that while the ranking would be better, the educational experience would be far lessened.
I am sure that the clinic program and trial program (which US News does not rank highly but whose students regularly win trial competitions against those schools that are well rated in these areas) remain a vital part of the curricular and will as the school's reputation grows become a source of US News pride as well.
For those of you who are thinking about law school, I highly recommend Hofstra School of law. Its proximity to both the hub of Long Island (Nassau County) legal practice and that of NYC, makes it an attractive place to go to school and increases the chance of finding a job Tenfold.
Sunday, April 04, 2010
Happy Easter, The Lord Has Risen. Will You Help a Mom Of Two Find A Bone Marrow Donor?
Christ has risen. I am in a hopeful mood. Maybe it is the sudden turn in the weather, or maybe it is the good food mom serves on Easter Sunday. Either way, I am blogging again for better or worse. If you want to know where I've been, I have been trying cases left and right.
I tried a Rape case (statutory) in Queens and a Retaliation Employment Harassment case in the US District Court Eastern District of New York in the Central Islip NY (that is in Suffolk County for the uninitiated).
The results in the former case were mixed but not up to what I had hoped. In the latter case the case went well despite the pleadings which were filed "Pro Se" (by the client without the aid of an attorney.) These were my Third and Fourth Trial since December 17th 2009. I have two more scheduled in April, both of which will go to trial. Both are in Nassau County NY. May will bring Mother's day, Graduation of my eldest and in the latter part of the month a huge Prisoner's Rights, Civil Rights trial in Syracuse NY. June and early July is filled with two very interesting trials in Riverhead (Suffolk.) In between I was just a team leader for the week long,NYSBA Young Lawyer Trial Advocacy program at Cornell Law School. Wow I am tired, lol
I don't usually blog my cases until they are over, lest some juror read it "by accident." I think I will continue that habit, although I will be mentioning some of the issues I am running into if I think they are interesting enough.
In the meantime, I have a received a request to help find a Bone Marrow match for Thespina Pontisakos. She is a wife of an attorney and a mom of two sons. Thespina has Myelodysplastic Syndrome(MDS) and she will die if we don't find a donor match. Be the remedy. Join the registry. (Go to the link above and enter the Promo Code: helpthespina
You see, if the match is found, and Thespina gets the Bone Marrow transplant, Thespina lives, if not she dies. That seems easy enough. Try to help, it is almost painless to find out if you match. If you match, you will have the power to save a life. If you don't match Thespina, maybe you can save someone else. Either way, it appears to be an easy choice.
If you are going to be registering, or have registered already, and want to leave a thought or two here, I will publish them. Meanwhile, please, spread the word.
TLD
I tried a Rape case (statutory) in Queens and a Retaliation Employment Harassment case in the US District Court Eastern District of New York in the Central Islip NY (that is in Suffolk County for the uninitiated).
The results in the former case were mixed but not up to what I had hoped. In the latter case the case went well despite the pleadings which were filed "Pro Se" (by the client without the aid of an attorney.) These were my Third and Fourth Trial since December 17th 2009. I have two more scheduled in April, both of which will go to trial. Both are in Nassau County NY. May will bring Mother's day, Graduation of my eldest and in the latter part of the month a huge Prisoner's Rights, Civil Rights trial in Syracuse NY. June and early July is filled with two very interesting trials in Riverhead (Suffolk.) In between I was just a team leader for the week long,NYSBA Young Lawyer Trial Advocacy program at Cornell Law School. Wow I am tired, lol
I don't usually blog my cases until they are over, lest some juror read it "by accident." I think I will continue that habit, although I will be mentioning some of the issues I am running into if I think they are interesting enough.
In the meantime, I have a received a request to help find a Bone Marrow match for Thespina Pontisakos. She is a wife of an attorney and a mom of two sons. Thespina has Myelodysplastic Syndrome(MDS) and she will die if we don't find a donor match. Be the remedy. Join the registry. (Go to the link above and enter the Promo Code: helpthespina
You see, if the match is found, and Thespina gets the Bone Marrow transplant, Thespina lives, if not she dies. That seems easy enough. Try to help, it is almost painless to find out if you match. If you match, you will have the power to save a life. If you don't match Thespina, maybe you can save someone else. Either way, it appears to be an easy choice.
If you are going to be registering, or have registered already, and want to leave a thought or two here, I will publish them. Meanwhile, please, spread the word.
TLD
Friday, November 28, 2008
Nassau DWI Arrests Spike on Thanksgiving Eve: Some Thoughts From That Lawyer Dude
Nassau County Police announced that their DWI arrests spiked by 300 percent. Nassau Police usually average about 10 arrests a night however on November 25th police arrested 35 people in Nassau County alone. Suffolk County numbers are not available.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
Wednesday, September 17, 2008
From the Headlines on Long Island
Busy day in the courts on Long Island.
Newsday reports that former NY Giant receiver and Superbowl hero Mark Ingram was sentenced to 7 years 8 months for trying to launder money for people he thought were drug dealers. They were in fact FBI undercover agents. The crimes took place in Florida and New York. EDNY Judge Hurley was not moved by Ingram's off or on field heroics (Ingram played a big part in the Giants Superbowl win in 1991 over the Buffalo Bills.
Ingram's life since retirement has been bizarre. He has been jailed for a number of crimes including breaking into a car to steal a pocketbook. I understand he went through three assigned attorneys and wrote a very bizarre motion. I wonder if he is not somehow mentally ill. Finally, he went through an awful lot of money. He has to be indigent to get a free lawyer. This is a sad and bizarre story.
Speaking of bizarre cases, Nassau County District Attorney Kathleen Rice continues to misuse the law to forward her crazy views of DWI cases. Getting a conviction for Murder in the Second Degree, the court (Peck J.) sentenced the defendant Franklin McPherson, to Twenty Five years to life. Interesting given the fact that while the behavior was considered very reckless by the jury (a decision that will be over turned in my humble opinion because it was given an incorrect jury charge and a charge that was changed after summations were completed a No NO) that is the maximum. If we sentence to the maximum for reckless conduct, what does that leave us for intentional conduct??
Anyway, you can catch more on this story here
By the way Judge, I think 25 years is too long for a 20 year old kid who did not act intentionally. We are giving up on a 20 year old is really not a conservative concept. Do we really think this person has no value to us as a community?? Hopefully this case gets overturned soon.
Finally a case that does make some sense. Suffolk County Court Judge James Hudson, properly sentenced a man to probation in a devastating accident caused by his intoxication. His wife who was severely injured begged Judge Hudson and the Suffolk county District Attorney Thomas Spota for leniency for her husband and father of her two children. She told them she needs him home to care for her. The court and District Attorney agreed.
What I find interesting here is that DA Spota only charged the appropriate charge of vehicular assault and not the higher but legally unwarranted and vindictive Assault 2d degree. I am in a case right now with DA Kathleen Rice and just as she did in the McPearson case above, she has illegally over-charged the case. I am hoping the court agrees that we should have a vehicular assault charge only for accidents that happen while one is intoxicated. If Assault 2d degree were the appropriate charge why would we have a second separate charge? Well I guess while we pay more in taxes, Ms. Rice will continue to waste our taxpayers money to fight her insane,politically motivated and legally irrational march against the citizenry.
TLD.
Edited to make a few sentences make more sense.
Newsday reports that former NY Giant receiver and Superbowl hero Mark Ingram was sentenced to 7 years 8 months for trying to launder money for people he thought were drug dealers. They were in fact FBI undercover agents. The crimes took place in Florida and New York. EDNY Judge Hurley was not moved by Ingram's off or on field heroics (Ingram played a big part in the Giants Superbowl win in 1991 over the Buffalo Bills.
Ingram's life since retirement has been bizarre. He has been jailed for a number of crimes including breaking into a car to steal a pocketbook. I understand he went through three assigned attorneys and wrote a very bizarre motion. I wonder if he is not somehow mentally ill. Finally, he went through an awful lot of money. He has to be indigent to get a free lawyer. This is a sad and bizarre story.
Speaking of bizarre cases, Nassau County District Attorney Kathleen Rice continues to misuse the law to forward her crazy views of DWI cases. Getting a conviction for Murder in the Second Degree, the court (Peck J.) sentenced the defendant Franklin McPherson, to Twenty Five years to life. Interesting given the fact that while the behavior was considered very reckless by the jury (a decision that will be over turned in my humble opinion because it was given an incorrect jury charge and a charge that was changed after summations were completed a No NO) that is the maximum. If we sentence to the maximum for reckless conduct, what does that leave us for intentional conduct??
Anyway, you can catch more on this story here
By the way Judge, I think 25 years is too long for a 20 year old kid who did not act intentionally. We are giving up on a 20 year old is really not a conservative concept. Do we really think this person has no value to us as a community?? Hopefully this case gets overturned soon.
Finally a case that does make some sense. Suffolk County Court Judge James Hudson, properly sentenced a man to probation in a devastating accident caused by his intoxication. His wife who was severely injured begged Judge Hudson and the Suffolk county District Attorney Thomas Spota for leniency for her husband and father of her two children. She told them she needs him home to care for her. The court and District Attorney agreed.
What I find interesting here is that DA Spota only charged the appropriate charge of vehicular assault and not the higher but legally unwarranted and vindictive Assault 2d degree. I am in a case right now with DA Kathleen Rice and just as she did in the McPearson case above, she has illegally over-charged the case. I am hoping the court agrees that we should have a vehicular assault charge only for accidents that happen while one is intoxicated. If Assault 2d degree were the appropriate charge why would we have a second separate charge? Well I guess while we pay more in taxes, Ms. Rice will continue to waste our taxpayers money to fight her insane,politically motivated and legally irrational march against the citizenry.
TLD.
Edited to make a few sentences make more sense.
Texting While Driving: A Law That Makes Sense, A Statement I May Come to Regret.
If you text and drive in Suffolk County NY (and soon in Nassau County too) you will get stopped by police and given a very expensive ticket. One Hundred Fifty Dollars to be exact.
Unlike the cell phone ban while driving which I am basically against, this bill makes sense. I am guilty of it, and I probably will be again although I am trying to break the habit. It makes sense because it requires way too much of the driver's attention to successfully send text messages. OTOH, maybe it is time for Cell phone makers to invent a cell phone that converts voice into text messages... It would be safer and infact the technology exists. The big problem with text messaging is that it requires that the text sender look at the screen to perform the various tasks necessary to send the text. Unlike the phone call which can be programmed, the text message needs you to choose the option to test add the person you want to text and after typing out the message send the message. It also requires the sender to read responses.
As a police official points out, the proof of texting leaves a trail and that makes it easy to prove. More importantly, given the speed people drive at and the damage that can happen in such a short time, this law makes eminent sense. I will be working hard to break this habit before I hurt someone or me.
Texting while driving... DON'T DO IT!!
Hattip: The Gothamist
Unlike the cell phone ban while driving which I am basically against, this bill makes sense. I am guilty of it, and I probably will be again although I am trying to break the habit. It makes sense because it requires way too much of the driver's attention to successfully send text messages. OTOH, maybe it is time for Cell phone makers to invent a cell phone that converts voice into text messages... It would be safer and infact the technology exists. The big problem with text messaging is that it requires that the text sender look at the screen to perform the various tasks necessary to send the text. Unlike the phone call which can be programmed, the text message needs you to choose the option to test add the person you want to text and after typing out the message send the message. It also requires the sender to read responses.
As a police official points out, the proof of texting leaves a trail and that makes it easy to prove. More importantly, given the speed people drive at and the damage that can happen in such a short time, this law makes eminent sense. I will be working hard to break this habit before I hurt someone or me.
Texting while driving... DON'T DO IT!!
Hattip: The Gothamist
Thursday, July 17, 2008
Why Caps on Attorney Fees Hurt Citizens: Fed Prosecutors say Cook County Jail (Chicago Il.) Systemically Violates Prisoners CONSTITUTIONAL RIGHTS
Russian novelist and philosopher Fyodor Dostoevsky once wrote that "The degree of civilization in a society can be judged by entering its prisons." If that is the case, then the jails of Cook County Illinois (Chicago) and I think those of Nassau County NY present an utter lack of civilization on their citizen's part.
Patrick Fitzgerald, bane to the Bush-(and more exactly) Cheney administration, and US Attorney of the Northern District of Illinois has issued a scathing report which bashes the nation's largest single sight jail for being violative of its prisoners basic civil rights under the 8th amendment.
The report gives the USA N.D.IL. The right to bring an action in about 1.5 months to force the city and state to fix the problems. These are very serious charges.
Now for specifics: the study found that the jail "Key findings of the investigation conclude that the jail has failed to adequately protect inmates from harm and serious risk of harm, including physical harm caused by inappropriate and excessive force used by staff and violence by other inmates; failed to provide adequate medical and mental health care, including suicide prevention; and failed to provide adequate environmental conditions, including fire safety and sanitation, all resulting in unconstitutional living conditions."
These violations have led to suicides, murders, amputations (by the jails own doctors) and beatings at the hands of the guards. The level of violations rises to that of a constitutional violation.
What's worse is, these folks are HAVE NOT BEEN CONVICTED OF ANY CRIME. They are awaiting trial and are too poor to make bail. In other words they are PRESUMED INNOCENT
Now things in Chicago are pretty bad, but are they any less so here in Nassau County? The Nassau County (NY)Jail in East Meadow is a miserable place. There is gang violence and regular violence against people who are different (think gay). Medical attention in the jail (as opposed to the NCUMC next door) is very poor and many inmates do not get any much less proper doses of their medicines. The Jail instituted programs that made it impossible to file complaints, made it so that prisoners had to file the complaints with the same people who they were complaining about, and came up with a scheme to make sure complainants never exhausted the administrative remedies they had to finish before they could sue. Oh yeah, lawyers were not permitted to help for those that did get to file a complaint.
Now why are things like this allowed to fester?
Because Congressmen do not understand the laws they pass. Because Prisoner's have no lobby. Because politicians pander to voters by being "tough" on Crime. Because Americans are stupid. No not in the imbecile kind of way, but in the "I don't want to think about or learn about this" or the "Government will take care of this stuff" or in my personal favorite "those people don't deserve better" kind of way. Because even though most of Congress is made up of lawyers, they hate lawyers.
What happened here is that under the original civil rights law, prisoner's could file suits "willy nilly" and were costing the local governments a ton of money in legal fees for "Frivolous litigation". (One inmate sued both the Devil and G-d in two very separate law suits.)
Normal solution: require that the litigation be filed by an attorney who has reviewed it and is open to Rule 11 sanctions.
Congressional solution: Close the court house door to most prisoner civil rights suits and while we are at it, make it impossible for a lawyer to make any living in representing someone who is in jail and has a legitimate civil rights suit by capping his legal fee at 150% of the recovery.
This is the gravamen of the Prison Litigation Reform Act of 1995. Now why cap the legal fee, well civil rights cases allow the court to switch the legal fee of the winning party to the losing party. That means a lawyer will get paid by the government. Now it was completely lost on the congressional geniuses that wrote this bill that most of America's best lawyers charge more than 350 per hour and that they were already taking less because they are paid at no more than 112.50 an hour under the civil rights act (See also the Lodestar case).
NOPE, if the lawyer succeeds in saving prisoner's lives, the jury can give the victim/prisoner a buck and the lawyer gets... $1.50. That's absurd right?? I mean a guy can work for 300 hours on a case, win it, save lives because he wins it and all he gets for all that work would be a half cent an hour?? That's got to be absurd right? Well the 10th Circuit court of Appeals thought so (See this decision) but then when they looked at the decision en banc (a fancy way of saying all of the judges on the Circuit Court of Appeals reheard the case) they agreed that absurdity wins out, Congress screwed up and they couldn't legally fix it. Hence the Court house doors are effectively shuttered because a lawyer has to feed his family and pay his staff and we can't do that on this type of fee. Big law firms don't take too many of these types of cases pro bono. Hence disturbing behavior begins, goes unchecked, increases, and people die.
There are a few proposed laws to reform the PLRA. You can learn more about those proposals here.
Lawyers and the threat of a law suit, while expensive and not without some downside, keep people safe without sacrificing the needs of these people. Our professions ability to find a wrong and right it without taking up arms makes our nation stronger and our people healthier and safer.
Do not give in to the platitudes of others. Ask questions. When a Congressman or lobbyist wants to limit the right of someone to use the capitalistic system to better themselves, usually it betters all of us. Putting artificial stops on the free market never succeeds in anything but waste and loss of life and limb.
It is the same with Medical Malpractice and Class action fees. Doctors still want to make money, and so do insurance companies. They will continue their services. Same with Pharma and other developers. It may make things a little expensive at times, but then again, would you rather pay more for a safe drug, or less...
Patrick Fitzgerald, bane to the Bush-(and more exactly) Cheney administration, and US Attorney of the Northern District of Illinois has issued a scathing report which bashes the nation's largest single sight jail for being violative of its prisoners basic civil rights under the 8th amendment.
The report gives the USA N.D.IL. The right to bring an action in about 1.5 months to force the city and state to fix the problems. These are very serious charges.
Now for specifics: the study found that the jail "Key findings of the investigation conclude that the jail has failed to adequately protect inmates from harm and serious risk of harm, including physical harm caused by inappropriate and excessive force used by staff and violence by other inmates; failed to provide adequate medical and mental health care, including suicide prevention; and failed to provide adequate environmental conditions, including fire safety and sanitation, all resulting in unconstitutional living conditions."
These violations have led to suicides, murders, amputations (by the jails own doctors) and beatings at the hands of the guards. The level of violations rises to that of a constitutional violation.
What's worse is, these folks are HAVE NOT BEEN CONVICTED OF ANY CRIME. They are awaiting trial and are too poor to make bail. In other words they are PRESUMED INNOCENT
Now things in Chicago are pretty bad, but are they any less so here in Nassau County? The Nassau County (NY)Jail in East Meadow is a miserable place. There is gang violence and regular violence against people who are different (think gay). Medical attention in the jail (as opposed to the NCUMC next door) is very poor and many inmates do not get any much less proper doses of their medicines. The Jail instituted programs that made it impossible to file complaints, made it so that prisoners had to file the complaints with the same people who they were complaining about, and came up with a scheme to make sure complainants never exhausted the administrative remedies they had to finish before they could sue. Oh yeah, lawyers were not permitted to help for those that did get to file a complaint.
Now why are things like this allowed to fester?
Because Congressmen do not understand the laws they pass. Because Prisoner's have no lobby. Because politicians pander to voters by being "tough" on Crime. Because Americans are stupid. No not in the imbecile kind of way, but in the "I don't want to think about or learn about this" or the "Government will take care of this stuff" or in my personal favorite "those people don't deserve better" kind of way. Because even though most of Congress is made up of lawyers, they hate lawyers.
What happened here is that under the original civil rights law, prisoner's could file suits "willy nilly" and were costing the local governments a ton of money in legal fees for "Frivolous litigation". (One inmate sued both the Devil and G-d in two very separate law suits.)
Normal solution: require that the litigation be filed by an attorney who has reviewed it and is open to Rule 11 sanctions.
Congressional solution: Close the court house door to most prisoner civil rights suits and while we are at it, make it impossible for a lawyer to make any living in representing someone who is in jail and has a legitimate civil rights suit by capping his legal fee at 150% of the recovery.
This is the gravamen of the Prison Litigation Reform Act of 1995. Now why cap the legal fee, well civil rights cases allow the court to switch the legal fee of the winning party to the losing party. That means a lawyer will get paid by the government. Now it was completely lost on the congressional geniuses that wrote this bill that most of America's best lawyers charge more than 350 per hour and that they were already taking less because they are paid at no more than 112.50 an hour under the civil rights act (See also the Lodestar case).
NOPE, if the lawyer succeeds in saving prisoner's lives, the jury can give the victim/prisoner a buck and the lawyer gets... $1.50. That's absurd right?? I mean a guy can work for 300 hours on a case, win it, save lives because he wins it and all he gets for all that work would be a half cent an hour?? That's got to be absurd right? Well the 10th Circuit court of Appeals thought so (See this decision) but then when they looked at the decision en banc (a fancy way of saying all of the judges on the Circuit Court of Appeals reheard the case) they agreed that absurdity wins out, Congress screwed up and they couldn't legally fix it. Hence the Court house doors are effectively shuttered because a lawyer has to feed his family and pay his staff and we can't do that on this type of fee. Big law firms don't take too many of these types of cases pro bono. Hence disturbing behavior begins, goes unchecked, increases, and people die.
There are a few proposed laws to reform the PLRA. You can learn more about those proposals here.
Lawyers and the threat of a law suit, while expensive and not without some downside, keep people safe without sacrificing the needs of these people. Our professions ability to find a wrong and right it without taking up arms makes our nation stronger and our people healthier and safer.
Do not give in to the platitudes of others. Ask questions. When a Congressman or lobbyist wants to limit the right of someone to use the capitalistic system to better themselves, usually it betters all of us. Putting artificial stops on the free market never succeeds in anything but waste and loss of life and limb.
It is the same with Medical Malpractice and Class action fees. Doctors still want to make money, and so do insurance companies. They will continue their services. Same with Pharma and other developers. It may make things a little expensive at times, but then again, would you rather pay more for a safe drug, or less...
Wow What a Summer, (And It Is Not Even Half Over)
When I last left you, I was sad that Debra Jean Paltrow decided to end her life. I think it was a permanent solution to what was a temporary problem. I also thought her prosecution (not to mention her conviction) was a monumental waste of taxpayers time and money not to mention personnel resources.
So then what happened?? All hell broke loose That is what happened.
In chronological order:
1. I became involved to represent the driver in this very sad case. (The Griffin Case)
2. I was a judge at the National Catholic Forensic League Grand Championships in The Fox Cities area of Wisconsin.
3. The Nassau County DWI Wall of Shame went up.
4. I started representing Rabbi Morris Talansky, who is a really nice guy getting slammed unfairly in the foreign press (and by the NY Tabloids too but what else is new.)
5. I started the Murder Trial of Ronald "Shorts" Rodriguez.
6. The District Attorney of Nassau decided that I might beat her in the aforementioned Griffin case so she began "Poisoning the Jury Pool" with outrageous remarks that show her lack of maturity and her lack of fitness for the office she holds.
7. A nut job in the gallery of the courtroom during the Rodriguez trial, jumped up and attacked Shorty and me (he was aiming for Shorty, I was just collateral damage) which caused a 2.5 day break in the trial, and pointed out to all of us in Nassau County that we need to take more precautions to safeguard our trial courts (Hint Hint, it is time to build a new and safer annex to the county court.)
8. After one of the toughest trials I have ever been involved with, Ronald "Shorts" Rodriguez was ACQUITTED of Murder in the second degree (Intentional Murder) Manslaughter in the 1st degree (Intentionally causing injury that results in death through the use of Deadly Physical Force) and was convicted of the non-violent crime of Manslaughter in the 2d degree (recklessly causing the death of another) and possession of a weapon 3rd degree. (Sentencing is scheduled for September.)
9. In addition, the economy tanked, you can no longer afford to fill a gas tank without a loan, and it is Obama v. McCain but look out for BARR to play a spoiler unless McCain starts to comeback to his roots.
AND
10. I was cited as a blogging lawyer in an article at Get LEGAL.COM
11. I am building a new website (the old one is down and I have a static place holder there right now but wait until) NEXT month.
I will be posting on these topics and a few other things too over the next few weeks. Sorry for being away too long, but I just can't seem to write when I am in trial.
Corrections: Spell checked and links added.
So then what happened?? All hell broke loose That is what happened.
In chronological order:
1. I became involved to represent the driver in this very sad case. (The Griffin Case)
2. I was a judge at the National Catholic Forensic League Grand Championships in The Fox Cities area of Wisconsin.
3. The Nassau County DWI Wall of Shame went up.
4. I started representing Rabbi Morris Talansky, who is a really nice guy getting slammed unfairly in the foreign press (and by the NY Tabloids too but what else is new.)
5. I started the Murder Trial of Ronald "Shorts" Rodriguez.
6. The District Attorney of Nassau decided that I might beat her in the aforementioned Griffin case so she began "Poisoning the Jury Pool" with outrageous remarks that show her lack of maturity and her lack of fitness for the office she holds.
7. A nut job in the gallery of the courtroom during the Rodriguez trial, jumped up and attacked Shorty and me (he was aiming for Shorty, I was just collateral damage) which caused a 2.5 day break in the trial, and pointed out to all of us in Nassau County that we need to take more precautions to safeguard our trial courts (Hint Hint, it is time to build a new and safer annex to the county court.)
8. After one of the toughest trials I have ever been involved with, Ronald "Shorts" Rodriguez was ACQUITTED of Murder in the second degree (Intentional Murder) Manslaughter in the 1st degree (Intentionally causing injury that results in death through the use of Deadly Physical Force) and was convicted of the non-violent crime of Manslaughter in the 2d degree (recklessly causing the death of another) and possession of a weapon 3rd degree. (Sentencing is scheduled for September.)
9. In addition, the economy tanked, you can no longer afford to fill a gas tank without a loan, and it is Obama v. McCain but look out for BARR to play a spoiler unless McCain starts to comeback to his roots.
AND
10. I was cited as a blogging lawyer in an article at Get LEGAL.COM
11. I am building a new website (the old one is down and I have a static place holder there right now but wait until) NEXT month.
I will be posting on these topics and a few other things too over the next few weeks. Sorry for being away too long, but I just can't seem to write when I am in trial.
Corrections: Spell checked and links added.
Tuesday, April 22, 2008
Deed Piracy: A Particularly Cruel Type of Mortgage Fraud
With the advent of the "Depression of 2008", there are a lot of desperate homeowners in Suffolk (NY) and Nassau (NY) counties who are facing foreclosure. It is one thing to lose your money or your friends. It is quite another to lose the home and memories you've grown to love. In the poorer neighborhoods of Long Island and in places like Brooklyn and Richmond Hills in Queens there is a new monster crawling around. The Deed Pirate. Pretending to be an a rescuer for troubled homeowners, this monster is really a wolf in lambs clothing. These people are pirates of a new type. These deed pirates can steal your home out from underneath you.
According to a recent FBI Study (see here) New York is one the ten hottest Mortgage Fraud venues.
Deed Piracy aka Foreclosure Rescue is an emerging real-estate scam that strips desperate homeowners of title to their houses and any equity they may have in it. Here's an example of how it's done.
1. Homeowner falls behind in mortgage payments and the house goes into foreclosure. The foreclosure becomes a matter of public record.
2. Homeowner is approached by a scammer who identifies himself as a "mortgage broker." The scammer offers to refinance the house, pay off the loan and rescue the house from foreclosure. He comes in like an angel. Watch out, he is the devil in disguise.
3. At the closing of the new loan, the scammer tricks the homeowner into signing a "quit claim" that transfers ownership to the scammer. That is done in a number of ways:
a. Scammer will falsely convince homeowners that they will reclaim title as their credit improves.
b. Quit claim can be stashed among a number of other papers to sign.
c. Scammer forges owner's signature on quit claim.
4. Once title is held in another name, the proceeds from the new mortgage are easily diverted to the scammer.
5. Scammer begins eviction proceedings against the duped homeowner.
The protection against this type of predatory lending scam artist is simple.
I. First only work with a lawyer who is knowledgable about real estate. Stay away from Realty Agents who try to steer you to a specific Mortgage Broker or Lawyer. (You can find excellent lawyers and see how they rate at this site)
II. Only sign documents that clearly state that your signature is dependent on a co-signature by your lawyer. The Document should also say that it is self expiring within 3 days if it is not also signed by or replaced by a legal document approved by you lawyer.
III. Review and get a copy of every document at any closing you attend. It is popular for Mortgage brokers and even some banks to tell borrowers that they do not need their own attorneys for re-fi closings. WROOOOONG!!!!! Your failure to get a lawyer of your own marks you as an easy fraud victim. Get a GOOD LAWYER.
IV. Tape record all meetings and phone calls with the Mortgage Broker or representative.
V. Be very wary of straw buyers. These are people who the Broker pays some money from your re-fi to for their willingness to lend their credit score to get the loan. If a bank will not give you a mortgage on your score, you do not substitute another mortgagor, you get a guarantor to sign on to the loan. You will be told it is more expensive. It is. It is also the only legal way to do this. Straw buyers are illegal and if you agree to them, you are part of the Mortgage Fraud. You can be prosecuted by a New York City or Long Island District Attorney's Office or by the New York State Attorney General or even by the United State's Attorney's Office in Central Islip, Brooklyn, New York City (Manhattan) or White Plains. Do not deal with Straw buyers.
I will have more to say about Mortgage Fraud in Nassau and Suffolk Counties as well as Mortgage frauds in Manhattan Queens Brooklyn and the Bronx in the coming days. (It is a big part of our practice and we want to make sure that both those who are victims and those who are wrongly or innocently accused get a fair shake.
For Our previous blog postings on this issue see this
For more on the Long Island Foreclosures and on the Real Estate Market in Nassau and Suffolk in general take a look at a Newsday Blog called Real LI
Tuesday, August 28, 2007
That Lawyer Dude's Favorite Answers to Lawguru.com Questions
As Promised in the last post, I am going to repost some of my favorite Q & A from questions posted at LawGuru.com. These will be my answers to these questions.
Feel free to send in your own questions to this blog by writing me at Catlaw1@yahoo.com. I will respond to everyone that I can. The best ones I will repost here. I reserve the right to clean up language and change some of the question to preserve the "dignity"(?) of this blog...
A. The Nasty Neighbor.
A homeowner writes:
Q: I have a neighbor that has been writing anonymous letters to us and other neighbors (Yes we know who it is) and this last letter that I rec'd was slanderous and disturbing. It made us aware that she has been keeping track of us. She has knowledge of personal things that she should know. It was very disturbing and upset my entire family. She made reference to making a former tenant from the one rental house on the block ''sorry'' for having accused her of saying that she has been writing these letters. She also said that my ex husband should have physically abused me. Sick stuff! Is there anything we can do to make this stop. P.S. She is obviously mentally ill, but we shouldn't have to keep the blinds shut during the day, Right?
I responded:
Correct. She is guilty of Aggravated Harassment. It is an A misdemeanor and can cause her to be incarcerated for up to 1 year. Get to the police. Each letter to each neighbor is a separate count. You can also bring a cease and desist order and seek orders of protection.
B. The Overprotective School District.
A Parent writes:
My child's public school in upstate NY is hosting an after-prom party at the school. One of the party stipulations, which parents & students are required to sign, states that students will not be allowed to leave unless picked up by a parent. I think this is fine, except in the case of those students who are 18 and legally adults. This includes my child. I have 2 questions: 1) since my child is 18, how can I legally authorize the school to keep my child there?, 2) how could the school legally prevent anyone 18 & over from leaving any time they desired?
A:Technically they cannot. I am told that Aerodynamically, a bumble bee should not be able to fly...except no one tells the bumblebee. I have a feeling that your local HS is working under the same theory.
C. The Absent Social Host.
A concerned Parent(?) writes:
If a parent is away on vacation and their child has underage kids drinking at their house, are they liable under the law?
My Answer:
I assume you are speaking of the new social host laws in Nassau county and in some of the cities therein.
By way of the Nassau law, it seems that there are facts that could result in a conviction for an absent parent in your scenario, the parent would in fact be liable if he knew or had reason to know that underage minors were drinking in his home.
It will be a tough case in some instances, but yes a district attorney could conceivably get a conviction if the minor giving out the alcohol had done it before, and if the liquor was readily available in the home etc. etc.
I do not know if the courts will find this law constitutional or not, although I would love to handle the test case.
Be advised.
Well not bad for a first time out. Let me know what you think of this as a feature. I look forward to hearing your responses.
Feel free to send in your own questions to this blog by writing me at Catlaw1@yahoo.com. I will respond to everyone that I can. The best ones I will repost here. I reserve the right to clean up language and change some of the question to preserve the "dignity"(?) of this blog...
A. The Nasty Neighbor.
A homeowner writes:
Q: I have a neighbor that has been writing anonymous letters to us and other neighbors (Yes we know who it is) and this last letter that I rec'd was slanderous and disturbing. It made us aware that she has been keeping track of us. She has knowledge of personal things that she should know. It was very disturbing and upset my entire family. She made reference to making a former tenant from the one rental house on the block ''sorry'' for having accused her of saying that she has been writing these letters. She also said that my ex husband should have physically abused me. Sick stuff! Is there anything we can do to make this stop. P.S. She is obviously mentally ill, but we shouldn't have to keep the blinds shut during the day, Right?
I responded:
Correct. She is guilty of Aggravated Harassment. It is an A misdemeanor and can cause her to be incarcerated for up to 1 year. Get to the police. Each letter to each neighbor is a separate count. You can also bring a cease and desist order and seek orders of protection.
B. The Overprotective School District.
A Parent writes:
My child's public school in upstate NY is hosting an after-prom party at the school. One of the party stipulations, which parents & students are required to sign, states that students will not be allowed to leave unless picked up by a parent. I think this is fine, except in the case of those students who are 18 and legally adults. This includes my child. I have 2 questions: 1) since my child is 18, how can I legally authorize the school to keep my child there?, 2) how could the school legally prevent anyone 18 & over from leaving any time they desired?
A:Technically they cannot. I am told that Aerodynamically, a bumble bee should not be able to fly...except no one tells the bumblebee. I have a feeling that your local HS is working under the same theory.
C. The Absent Social Host.
A concerned Parent(?) writes:
If a parent is away on vacation and their child has underage kids drinking at their house, are they liable under the law?
My Answer:
I assume you are speaking of the new social host laws in Nassau county and in some of the cities therein.
By way of the Nassau law, it seems that there are facts that could result in a conviction for an absent parent in your scenario, the parent would in fact be liable if he knew or had reason to know that underage minors were drinking in his home.
It will be a tough case in some instances, but yes a district attorney could conceivably get a conviction if the minor giving out the alcohol had done it before, and if the liquor was readily available in the home etc. etc.
I do not know if the courts will find this law constitutional or not, although I would love to handle the test case.
Be advised.
Well not bad for a first time out. Let me know what you think of this as a feature. I look forward to hearing your responses.
Tuesday, December 12, 2006
Nassau District Attorney Rice Announces An Early Assessment Bureau: Justice Delivered Or Fiscal Boondoggle?
Nassau's New District Attorney has announced a new initiative which both increases her office size, and seeks to restore her image with Women and Family first voters. The question is: Will it result in better justice at less cost?
DA Kathleen Rice has come under fire here before (see here, here, and here.) As a result of my criticism some have wondered whether I intend to run against her. Let's handle that first. While one never says never, it is highly unlikely for so many reasons. Those reasons can be saved for another day, suffice it to say, I am critical of Rice because I want to see results without an unnecessary increase in costs.
Ok now lets deal with the new proposal. Rice's New Early Case Assessment Unit is not an unwelcome addition. The ECAB bureau is now going to take police arrest paperwork and decide what the charges should be and how those charges should be drafted. Up until now that job was the police department's job alone.
In order for ECAB to be a success, it has to be less expensive than the police doing it and it has to result in fewer felony and serious misdemeanor charges from being filed.
I realize that lower charging seems counter-intuitive but it has been an open secret that Nassau Police over-charge cases. Hence a lot of the plea bargaining that goes on in Nassau courts is to just get the right charge to begin with because the police over-charge. The causes of over-charging can be many. One reason might be that the police do not have the legal experience to make nuanced decisions about charges. A more nefarious reason is that charging a burglary instead of a trespass looks good on a police officers resume. Charging an Assault 2rd degree is better than an Assault 3rd degree.
Now fairer charging will result in what appears to be a drop in the crime rate. That is illusory. That aside, it will result in a clearer picture of the real crime rate in Nassau County. An ECAB unit also takes away from the District Attorney the right to hide behind the police actions as in "I didn't bring the charge I only prosecute what the Police charge" which is how Nassau District Attorneys have defended themselves against the defense charge of "over-charging.
The PBA and other Police labor Unions fear that ECAB will both decrease overtime and take away the Police perogative in charging crime thus making it harder to control the streets. Criminals will have less to fear of a cop overcharging the case.
A reduction in police overtime would be welcome from taxpayers point of view. Part-time assistant district attorney's cost a lot less than overtime paid police (Police tend to out earn their ADA counterparts anyway.) However I have worked in an ECAB type unit in Mount Vernon (NY)in the early 80's and I would doubt that the unit will cut overtime substantially. Instead of drafting from a form charge, police will now sit with an ADA and they will type out the charge instead. I do not see a savings unless the police can teletype or email the paperwork to the ECAB and then they just redraft. Moreover since Police have to bring suspects to Police HQ anyway there is no savings in time driving from the Precinct to Mineola. Hence it seems like all we have done is added a layer of bureaucracy to the process. It may be, however, that the new project reduces over-all prosecution costs.
The new unit is going to cost 1.2 Million Dollars ($1,200,000.00). That's a lot of money. In order to adjudge this expense a success, Rice is going to have to prove a significant drop in over-charging and in Over-time or at least in general prosecution costs.
One final point, DA Rice is using the unit to place part-time employees. It is meant to undue the harm done when she eliminated part-time jobs for prosecutors this past summer. The ECAB unit is a failure if it is to be measured as a solution to the part-time lawyer fiasco. That however is fodder for a different post.
As for now, for ECAB, the jury is out.
DA Kathleen Rice has come under fire here before (see here, here, and here.) As a result of my criticism some have wondered whether I intend to run against her. Let's handle that first. While one never says never, it is highly unlikely for so many reasons. Those reasons can be saved for another day, suffice it to say, I am critical of Rice because I want to see results without an unnecessary increase in costs.
Ok now lets deal with the new proposal. Rice's New Early Case Assessment Unit is not an unwelcome addition. The ECAB bureau is now going to take police arrest paperwork and decide what the charges should be and how those charges should be drafted. Up until now that job was the police department's job alone.
In order for ECAB to be a success, it has to be less expensive than the police doing it and it has to result in fewer felony and serious misdemeanor charges from being filed.
I realize that lower charging seems counter-intuitive but it has been an open secret that Nassau Police over-charge cases. Hence a lot of the plea bargaining that goes on in Nassau courts is to just get the right charge to begin with because the police over-charge. The causes of over-charging can be many. One reason might be that the police do not have the legal experience to make nuanced decisions about charges. A more nefarious reason is that charging a burglary instead of a trespass looks good on a police officers resume. Charging an Assault 2rd degree is better than an Assault 3rd degree.
Now fairer charging will result in what appears to be a drop in the crime rate. That is illusory. That aside, it will result in a clearer picture of the real crime rate in Nassau County. An ECAB unit also takes away from the District Attorney the right to hide behind the police actions as in "I didn't bring the charge I only prosecute what the Police charge" which is how Nassau District Attorneys have defended themselves against the defense charge of "over-charging.
The PBA and other Police labor Unions fear that ECAB will both decrease overtime and take away the Police perogative in charging crime thus making it harder to control the streets. Criminals will have less to fear of a cop overcharging the case.
A reduction in police overtime would be welcome from taxpayers point of view. Part-time assistant district attorney's cost a lot less than overtime paid police (Police tend to out earn their ADA counterparts anyway.) However I have worked in an ECAB type unit in Mount Vernon (NY)in the early 80's and I would doubt that the unit will cut overtime substantially. Instead of drafting from a form charge, police will now sit with an ADA and they will type out the charge instead. I do not see a savings unless the police can teletype or email the paperwork to the ECAB and then they just redraft. Moreover since Police have to bring suspects to Police HQ anyway there is no savings in time driving from the Precinct to Mineola. Hence it seems like all we have done is added a layer of bureaucracy to the process. It may be, however, that the new project reduces over-all prosecution costs.
The new unit is going to cost 1.2 Million Dollars ($1,200,000.00). That's a lot of money. In order to adjudge this expense a success, Rice is going to have to prove a significant drop in over-charging and in Over-time or at least in general prosecution costs.
One final point, DA Rice is using the unit to place part-time employees. It is meant to undue the harm done when she eliminated part-time jobs for prosecutors this past summer. The ECAB unit is a failure if it is to be measured as a solution to the part-time lawyer fiasco. That however is fodder for a different post.
As for now, for ECAB, the jury is out.
Monday, February 27, 2006
A Victory For That Lawyer Dude
Last Tuesday, a Nassau Grand Jury voted not to indict my client Jillian Greico for Assault in the Second or Third Degree or for Harassment. In other words they acquitted her of all charges. In fact they didn't just find her not guilty, they found her to be INNOCENT!!
Too little, too late.
On Halloween, Jill went out with a few friends and participated in the age old "tradition" of egging each other. One kid's egg(not Jill's) accidentally struck a younger kid under the eye. When the egg cracked part of the shell cut his cornea. He is allegedly partially blinded. I say allegedly because I have heard all kinds of reports from full blindness to no issue. The truth probably lies somewhere in between.
At the time of the incident, no one knew the boy had been injured. The next day, the injury was reported on the front page of Long Island's daily newspaper of record Newsday, and in all of the major area media on Long Island and in NYC. When Jill learned of the injury, she immediately went to the police. They thanked her for her information and honesty by arresting her and all but one boy, who took part in the prank. That boy's parents lawyered him up, so he went to the police with a lawyer and he got immunity for ratting out his friends. Of course it turns out that he was the kid who supplied the eggs. Seems that ,but for that kid, nobody would have gotten hurt. Thus it makes sense that the guy who is most responsible walks away and isn't even charged.
Now this was, as I said, an accident. Even the police admitted that no one meant for anyone to get hurt. Nevertheless, police and prosecutors at the victim's family's insistence made arrests and tried to upgrade the original charges to a felony. That seemed to me to be absolutely ridiculous. What bothered me more however was the reaction of the other boys charged. Instead of fighting this indictment the way Jill did, they caved in and entered guilty pleas to the original misdemeanor charges. Whatever they were thinking, it is sad someone didn't tell them that accidents happen. Now those guys who all took guilty pleas must do 3 years probation. What a waste of taxpayers money.
When I juxtapose this incident to the accident Vice President Dick Cheney just had, it is clear that the best intentions can still put one at risk of hurting another. In our ever litigious country every childhood act calls out for not only a negligence action but a criminal prosecution to boot. Somebody please tell me how this was a criminal act. I am wondering how many children are going to be deterred next year from throwing eggs on Halloween because of this accident and prosecution. If the answer is none I would not be surprised. Eggs crack just like water balloons explode and snowballs disintigrate on contact. No one in their right minds (except for comedian Kevin Meaney's mother) thinks tossing one on Halloween is going to put someone's eye out. It just isn't a crime even if you live in Oyster Bay Cove and the people throwing eggs at you live in Woodbury, two of the richest neighborhoods on Long Island (or in America.)
Another thing, does anybody here think the Nassau District Attorney's office and the Police would have made an arrest if this had happened in Hempstead or Roosevelt? Would the TV cameras covered it? I strongly doubt it.
Of course the damage is done to Jill already too. Her name and address as well as her picture have been placed all over the NY Televison and Newspaper scene. She has received hate mail and threats on the phone and through the internet. She has had her innocence stolen. Although she is an honor student and a real good person, people now think her irresponsible and sophomoric, and for what? In her case, her egg didn't even hit anyone, it just landed harmlessly on the ground.
Maybe we are spending too much money here on Long Island for prosecutors and Police. Maybe they need more real crime to prosecute or maybe we just need less of them. I didn't think so until this case came along. Two detectives, two days or more of Grand Jury time, a top prosecutor (nope they didn't use a newbie out of the District Court bureau for this case)the time of four well known and expensive attorneys (yes That Lawyer Dude is expensive when he charges for his time)numerous court appearances (which entailed the use of judge's time, court personnel, and courtroom facilities.) All this waste over a childhood prank and a terrible accident. I estimate that the total cost of this fiasco to the kids, families, and our county, equaled over One Hundred Fifty Thousand($150000.00) Dollars. Imagine the impact half that amount could have if we donated it to a charity that provides sight to the needy, or to a Lions club that provides glasses to those who cannot afford them.
A year ago or more an Eighteen year old kid took a twenty six pound frozen turkey and hurled it from a moving car into the windshield of an on coming car and almost killed the driver of that oncoming car. That was an act of stupidity that called for prosecution. Hurling twenty six pounds of any frozen material can only have one end, damage. That is different than tossing a Three ounce egg five to ten feet. Eggs are supposed to crack and this one did. Frozen turkeys don't crack, they are hard as rock. There is a difference and legal professionals are supposed to comprehend that difference and explain it to angry parents or victims. I guess the combination of rich victims and flashbulbs was too much for the powers that be to deal with. They needed that 1.5 minutes of fame. Too bad they had to ruin a girls life to get it.
EDITED 7/16/08: To exclude the name of the kid that received immunity from prosecution. I still think what he did (seeking to minimize his role and taking immunity from prosecution while still being morally responsible for the actions thus allowing his friends to "take the weight") is dispicable, but he is about to enter adulthood and I suppose that he should no longer bear the scares of this case nor of his actions taken while a scared kid. A dear friend of mine asked that I remove it, on behalf of the boy, so Rick, this is the ONLY time I will do this, but this one is for you.
Too little, too late.
On Halloween, Jill went out with a few friends and participated in the age old "tradition" of egging each other. One kid's egg(not Jill's) accidentally struck a younger kid under the eye. When the egg cracked part of the shell cut his cornea. He is allegedly partially blinded. I say allegedly because I have heard all kinds of reports from full blindness to no issue. The truth probably lies somewhere in between.
At the time of the incident, no one knew the boy had been injured. The next day, the injury was reported on the front page of Long Island's daily newspaper of record Newsday, and in all of the major area media on Long Island and in NYC. When Jill learned of the injury, she immediately went to the police. They thanked her for her information and honesty by arresting her and all but one boy, who took part in the prank. That boy's parents lawyered him up, so he went to the police with a lawyer and he got immunity for ratting out his friends. Of course it turns out that he was the kid who supplied the eggs. Seems that ,but for that kid, nobody would have gotten hurt. Thus it makes sense that the guy who is most responsible walks away and isn't even charged.
Now this was, as I said, an accident. Even the police admitted that no one meant for anyone to get hurt. Nevertheless, police and prosecutors at the victim's family's insistence made arrests and tried to upgrade the original charges to a felony. That seemed to me to be absolutely ridiculous. What bothered me more however was the reaction of the other boys charged. Instead of fighting this indictment the way Jill did, they caved in and entered guilty pleas to the original misdemeanor charges. Whatever they were thinking, it is sad someone didn't tell them that accidents happen. Now those guys who all took guilty pleas must do 3 years probation. What a waste of taxpayers money.
When I juxtapose this incident to the accident Vice President Dick Cheney just had, it is clear that the best intentions can still put one at risk of hurting another. In our ever litigious country every childhood act calls out for not only a negligence action but a criminal prosecution to boot. Somebody please tell me how this was a criminal act. I am wondering how many children are going to be deterred next year from throwing eggs on Halloween because of this accident and prosecution. If the answer is none I would not be surprised. Eggs crack just like water balloons explode and snowballs disintigrate on contact. No one in their right minds (except for comedian Kevin Meaney's mother) thinks tossing one on Halloween is going to put someone's eye out. It just isn't a crime even if you live in Oyster Bay Cove and the people throwing eggs at you live in Woodbury, two of the richest neighborhoods on Long Island (or in America.)
Another thing, does anybody here think the Nassau District Attorney's office and the Police would have made an arrest if this had happened in Hempstead or Roosevelt? Would the TV cameras covered it? I strongly doubt it.
Of course the damage is done to Jill already too. Her name and address as well as her picture have been placed all over the NY Televison and Newspaper scene. She has received hate mail and threats on the phone and through the internet. She has had her innocence stolen. Although she is an honor student and a real good person, people now think her irresponsible and sophomoric, and for what? In her case, her egg didn't even hit anyone, it just landed harmlessly on the ground.
Maybe we are spending too much money here on Long Island for prosecutors and Police. Maybe they need more real crime to prosecute or maybe we just need less of them. I didn't think so until this case came along. Two detectives, two days or more of Grand Jury time, a top prosecutor (nope they didn't use a newbie out of the District Court bureau for this case)the time of four well known and expensive attorneys (yes That Lawyer Dude is expensive when he charges for his time)numerous court appearances (which entailed the use of judge's time, court personnel, and courtroom facilities.) All this waste over a childhood prank and a terrible accident. I estimate that the total cost of this fiasco to the kids, families, and our county, equaled over One Hundred Fifty Thousand($150000.00) Dollars. Imagine the impact half that amount could have if we donated it to a charity that provides sight to the needy, or to a Lions club that provides glasses to those who cannot afford them.
A year ago or more an Eighteen year old kid took a twenty six pound frozen turkey and hurled it from a moving car into the windshield of an on coming car and almost killed the driver of that oncoming car. That was an act of stupidity that called for prosecution. Hurling twenty six pounds of any frozen material can only have one end, damage. That is different than tossing a Three ounce egg five to ten feet. Eggs are supposed to crack and this one did. Frozen turkeys don't crack, they are hard as rock. There is a difference and legal professionals are supposed to comprehend that difference and explain it to angry parents or victims. I guess the combination of rich victims and flashbulbs was too much for the powers that be to deal with. They needed that 1.5 minutes of fame. Too bad they had to ruin a girls life to get it.
EDITED 7/16/08: To exclude the name of the kid that received immunity from prosecution. I still think what he did (seeking to minimize his role and taking immunity from prosecution while still being morally responsible for the actions thus allowing his friends to "take the weight") is dispicable, but he is about to enter adulthood and I suppose that he should no longer bear the scares of this case nor of his actions taken while a scared kid. A dear friend of mine asked that I remove it, on behalf of the boy, so Rick, this is the ONLY time I will do this, but this one is for you.
Subscribe to:
Posts (Atom)