Housing Codes

A story in today's Post-Journal gives me some mixed feelings. I'm glad to see the issue of substandard housing covered, as it is certainly an issue here in town. On the other hand, this article plays upon the fears of every tenant I've talked to who is mainly concerned about being homeless if they report health and safety issues. If a place is so dangerous that children are being removed and the City is telling tenants to leave, it's not the fault of the City (other than for not stepping in long ago!)--it falls squarely on the landlord. Who, unless I missed it, remains unnamed in this typically balanced piece from the P-J.

I love these.

A man was sent to Hell for his sins. As he was being taken to the place of eternal torment, he saw a lawyer making passionate love to a beautiful woman. "What a ripoff," the man muttered. "I have to roast for all eternity and that lawyer gets to spend it with a beautiful woman."

Jabbing the man with his pitchfork, the escorting demon snarled, "Who are you to question that woman's punishment?"


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A woman and her little girl were visiting the grave of the little girl's grandmother. On their way through the cemetery back to the car, the little girl asked, "Mommy, do they ever bury two people in the same grave?"

"Of course not, dear," replied the mother. "Why would you think that?"

"The tombstone back there said 'Here lies a lawyer and an honest man.'"


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A man went into the Chamber of Commerce of a small town, obviously desperate. He asked the man at the counter, "Is there a criminal attorney in town?"

The man replied, "Yes - but we can't prove it yet."


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You're trapped in a room with a tiger, a rattlesnake, and a lawyer. You have a gun with two bullets. What should you do?

Shoot the lawyer. Twice.


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Hear about the terrorist that hijacked a 747 full of lawyers? He threatened to release one every hour if his demands weren't met.

Stupid Criminal and Serious Sentencing Thoughts

15 to life in state prison for stealing a chainsaw and a stereo.
I'm not going to delve into the legal theories of criminal justice (rehabiliative, retributive, etc), although that's sort of what's on my mind after reading an article (snippets below) in today's Watertown paper. Well, that and shock at what an idiot this defendant apparently is...

I'd prefer someone who continually commits crimes be locked up, for life if necessary, than wandering the streets. Dipping back into the theories on how and why our system is supposed to work, though, it just seems a waste of taxpayer dollars to keep people locked up for decades only to lock them up for decades again. Maybe, semi-seriously and in the interest of discussion, there's something to the idea of penal colonies. Maybe enforced conscription into some sort of military service. While such brainstorming runs into the 8th Amendment, it might be time to think outside the box when it comes to persistent offenders.

Mr. Gilbo was in court for sentencing on one felony count of second-degree burglary and two misdemeanor counts of petit larceny. He was found guilty after a jury trial in February of stealing a stereo from the Joseph P. White home, Russell, and a chain saw belonging to Russell Sprague, Canton, on May 13, 2005. Sentencing was postponed twice to allow for Tuesday's hearing.

At trial, Mr. Gilbo boasted that he could rob any house in Canton, or even rob the police station, and the police could not do anything about it. Judge Rogers quoted his words before sentencing, saying Ms. Duvé had proven beyond a reasonable doubt that he should be sentenced as a persistent felon.

In addition to the 15 years-to-life sentence, Judge Rogers ordered Mr. Gilbo to pay a $270 court fee and $1,000 restitution.

Sex offenders

One of the issues that holds my attention these days is the issue of civil confinement of sexual offenders following the end of their prison term. One of the facilities that may soon house such "detainees" or "patients" or whatever term is used is the former state hospital in Ogdensburg, NY. This has brought the issue to the fore locally, hence a proposal before the city council in the Burg (as we know it in St. Lawrence Co.)to impose some new restrictions based on offender designation:

Councilman Matthew J. Flynn's proposal, unveiled in late March, would prohibit all levels of sex offenders from living within 2,000 feet of a school, park, playground and/or licensed day care center in the city. The proposal would require all levels of sex offenders to register with the police department and inform them of residency movements. Failure to report could bring a fine of up to $250 or 10 days in jail.

(courtesy Watertown Daily Times, subscription required)

Landlord-Tenant Tidbit: Withholding Rent

Can a tenant withhold rent if the landlord fails to make necessary repairs? As always, this is not legal advice, but just some basic information on a topic that comes up frequently in my non-blogosphere life.

This is a complex bit of law, and I won't delve too deeply here. In part, because there isn't a single clear answer. In part, the answer is an unqualified "yes". The Court of Appeals, in Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 391 N.E.2d 1288, 418 N.Y.S.2d 310 (1979), held that the duty to pay rent is interdependent with the landlord's duty to maintain a habitable rental premises.

The "yes" becomes slightly fuzzier when the issue turns to what is "habitable." The Real Property Law section 235-b contains a statutory warranty of habitability, which states that rentals shall not be hazardous to life, health or safety. The on-the-ground meaning of those broad terms has been the subject of countless court cases. Aside from broad guidelines established in caselaw, much of the decision on whether or not the statutory warranty has been violated will rest in the court's discretion. Additionally, a tenant can't just decide unilaterally to stop paying rent due to conditions. The landlord must be informed, usually in writing, that there are problems that need to be fixed or else withholding will occur.

The court? Where did that come from, you might be asking? Well, I'll pretend you were. Withholding due to bad conditions operates as a defense to an eviction proceeding. Even if the place is falling down around the tenant, the landlord still has the right to pursue an action to get paid, such as an eviction proceeding. The court then decides whether the withholding was justified and what rent, if any, is owed for the use of the property. What often happens in these cases is that, for example, a house without water still has some shelter value from the elements and the court will order 50%, or 10%, or some discretionary figure, be deducted from the rent owed.

The second qualifier with rent withholding deals with the fact that rent must actually be "held" someplace. If a tenant claims rent withholding, but has spent the money, it can appear to the court that the tenant is just raising weak claims to delay an eviction. The preferred method of withholding is to place the money in an attorney's trust account or deposit it with the court. This money indicates good-faith withholding and not an attempt to get around the system. It's important to note, though, that in some instances the court has the power to hold this money and pay for repairs out of it, if the landlord refuses to fix the problems.

Like I said up top, it's not an easy area of law. In fact, more often that not in the past I've felt tenant-clients would have been better off moving instead of trying to force repairs. If you're a landlord, realize you have duties under the law to maintain certain standards, or else the rent can be docked. If you're a tenant, realize that withholding is not a license to not pay rent, and is part of a complex procedure to assure adequate housing.

Who Watches..., II

A story in today's Jamestown Post-Journal (now somewhat available online) revisits an earlier post. I've heard far fewer rumors and allegations against the JPD than against other departments. With few exceptions, I typically find the officers to be professional when I'm dealing with them (and court security, a division of the department, are beyond good at their jobs). At the same time, I am a little wary of Chief Rater's response, which seemingly indicates complaints are handled internally on an ad hoc basis. "Internal" and "ad hoc", to me, aren't that far from the nod and smile of "Oh, that's just Mike."

In the end, this is mainly an issue of academic interest to me, dealing with Equal Protection and Due Process. I don't really get all fired up about it, have a "come back with a warrant" doormat or a 4th Amendment tee-shirt like a law school classmate. Legally, my interest is in "quality control" and implementing a system that works to assure fairness across the board. Does every department need an Internal Affairs staff, or is the answer a citizen oversight commission that takes/investigates complaints? Or am I being too nitpicky and a system like the JPD has works? Probably unanswerable questions, but those are the sort I like to think about.

Blawg recommendation

It's linked off to the side, but I wanted to reciprocate on a nice mention I received from the Albany Lawyer. Check out his blog for some insight on practice in another part of the state and in some different fields than where I toil.

Family Law at the Court of Appeals

On the 11th, the top NYS court heard arguments in Shondel J. v. Mark D, alternately known as Jackson v. DeSouza. The papers are sealed, but a summary of the case can be obtained in a pdf file at the court website.

This case deals with one of those quirks of family law that often ends up in the news every few months. For various reasons, a case seems to arise occasionally where a man who believed he was the biological father turns out not to be, but the courts hold that he's acted as the father so he's stuck in that role. That's, in a nutshell, the situation at hand--DNA tests proved Mark D. could not be the father, but lower courts held that he'd acted as the father and the period for contesting paternity had passed, so he was the father under the law.

I'll rein in my personal commentary (it would fill volumes) on this topic and just leave this as an FYI of an intriguing case currently being decided in NY.

Public records, law and technology

An interesting story in the Utica O-D recently concerned the idea of getting public records online while still protecting personal information.

In general, I've found that New York lags in making all sorts of records easily available. I recently had to find some information from a county in Ohio, and was very pleased to find the public records were accessible over the internet. I could not only look up when an action was filed, but obtain free pdf copies of all the major documents in the case. Meanwhile, here in Jamestown I keep a running list of tasks to do in Mayville until the day finally comes when it's worth the drive. Or some days I end up spending an hour in the car just for ten minutes at a computer terminal looking up a property record. It's a complete waste of time, and the county clerks, in my opinion, ought to be more concerned with getting records online than deciding who to blame when someone's social security number is improperly disclosed.

(Thanks for Joel at Small Town Lawyer for the original link. All editorial content is my own ranting.)

What I learned in law school...

“If you’re a defense lawyer, always take the guy with the mullet.” (jury selection).
“No judge likes to be original. God forbid they have to make their mind up.”
“Your friends laugh at you when you get sued for malpractice. Plus you piss your client off—he might get out of jail and shoot you.”
“You’re in law school. All that’s good in your brain has been crushed.”

(All quotes from Professor Humann's Federal Criminal Procedure)

ATVs, again

The Watertown Daily Times (subscription required, sorry) ran an article today putting a new spin on the ATV issue in upstate New York. It seems that certain idiots opposed to ATV use installed at least one "booby trap" on private property, as part of an ongoing squabble over ATV use by the property owners.

The usual debate on ATV use revolves around access and use on publicly-owned land. It's part of an ongoing and probably unresolvable issue as to what uses are allowable on land owned by us all. Hikers, horses, snowmobiles, ATVs, etc., have all faced scrutiny due to impacts on the land.

This issue, though, may have somewhat of an answer in nuisance law. If the ATV use on the private property is somehow so excessive, creating noise or dust problems, then the neighbors may have a civil remedy in how the use impacts the use and enjoyment of their own land. Former law students may remember the Boomer Cement case out of Albany, dealing with a cement plant spreading ash over a residential neighborhood.

Music law

Actually, it's more IP law, but it deals with some major musical names. A recent court decision, as reported by the BBC, allows Apple (the computer company) to keep using the name and logo in association with its music players. The law suit came about due to an existing agreement between Apple and the Beatles, who owned a similarly-named company. The agreement, which lasted about 15 years, gave the computer company free use of the name pretty much everywhere except the music business, where it was reserved for the Beatles' company. (That's a thumbnail recap that lacks some legally-relevant details).

Interesting point to ponder, if nothing else, just because it deals with some big names. Typical music law trademark stuff deals with two regional acts with the same name or a major label artist and a smaller act--it's unusual to see two big names involved.

Diversification

I'd be interested in ideas from any lawyers about ways they have diversified their businesses--ie, more than just the law firm. Do you own real estate, or a strip club, or a chain of fast food joints? Is it a supplement, a hobby or the eventual retirement plan?

As I close down my private practice and move into 100% public interest, I'm interested in continuing my entrepreneurial explorations in non-law areas.