Friday, September 29, 2006

Justice Courts

The idea of a post on this topic is still bubbling through my head, but I wanted to lead in with an anecdote that sums much of it up for me. Someone I know recently went into court on an eviction matter. On the petition, the landlord had put the wrong address. Various courts have held that this is a non-amendable jurisdictional defect in the petition, and that no case can be heard on this petition. Justice Court judge looked at it, said basically, "well, I can correct that myself" and inked a correction onto the papers.

On one hand, it's a logical and common sense solution. Everyone in question knew which property was involved, even if some apparently weren't clear on the address. On the other hand, case law interpreting RPAPL 741 is very clear that "description of the property" is a necessary element of the petition and a bad description invalidates jurisdiction of the court.

I imagine it will be something of a running theme of anecdotes presented following the NY Times' series, in legal blogs around the state. More will hopefully follow in this blog concerning my impressions and proposed solutions.

Thursday, September 28, 2006

Jury Duty

A friend blogs on her recent experience when called for jury duty. I enjoy this post for the non-lawyer perspective.

On Monday night, I had to call to see if I had to go serve on a jury. Yes, I got a jury summons! My number was picked (lucky #5) and I had to report for 9 AM.

So on Tuesday, I got up early. You have to remember that I'm currently unemployed so getting up early is now considered 9:30 so anything before 8 AM is just ludicrous in my book. But I go over to the courthouse, go through the metal detector, and sit and wait. We have to fill out some questionairre and make sure to give back the pen we borrowed...can't have the state waste money on new pens. Then, we wait some more. Then, the Commissioner of Jurors gives us a little talk, then the judge gives us a little talk, then the first 14 people are called and I'm not one of them! So I get to listen to all the questions and all the stuff the assistant DA is trying to say and not saying very well...for another hour. Then, they take a break for 10 minutes. Now, it's 11:30. The judge comes back and they pick out 7 jurors and swear them in. Then, the judge says "We'll break for lunch. Be back at 1Pm." God damn it!

At 1 PM, we are sitting in the courtroom after having gone back through the metal detector which seems to beep at everyone. At 1:20, the judge and lawyers are back and 14 more names are called. Mine is among them. So here's my strategy...sit and look bored and say nothing. And what do you know, it works! After listening to another hour of the same questions, I am finally excused.

What did I learn from this brush with the legal system? That for the most part, it's damn boring. But on the plus side, I don't have to worry about it for 6 more years.


Another brief post, this time related to the race to be the next Attorney General. Seems GOP candidate Pirro was taped last year saying a combination of politically-damaging and potentially illegal statements. It remains to be seen what the fallout will be for her campaign. Considering that she's been running as a "law and order" candidate stressing her prosecutorial experience, which is potentially valuable in the position given the lack of experience in that field among other candidates, it may be damaging.

Wednesday, September 27, 2006

Justice Courts, Part 3

The conclusion of the NY Times series on NY's Justice Courts.

Analysis and commentary are still planned, but have been slowed by real life. Additionally, as someone that appears in these courts fairly often, choosing words carefully is in order. Still, I hope to offer some comments in the near future.

(Important to note: prominent county residents Dale Robbins and Keith Ahlstrom are both quoted in this article)

Tuesday, September 26, 2006

Justice Courts, Part 2

The second part of the NY Times series on NY's local courts.

Commentary and analysis may follow as time permits.

Monday, September 25, 2006

NY Courts

The NY Times is running an investigative series looking into the practices of NY's Justice Courts. This is the lowest rung on the ladder of NY's unified court system, locally elected at the town or village level. As expected, the courts found that the lack of uniformity and training create an uncertain experience for all involved.

Saturday, September 23, 2006

Right to counsel

Interesting decision out of Albany, as reported in the Times-Union.

The issue at hand is that State Police policy has been to have police-only meetings with troopers involved in shootings. Apparently, though, reports then find their way into the hands of the agency or agencies investigating the shooting(s), where there is the potential for criminal action. The police union sued, and has prevailed at this early stage, on the claim that officers have the right to counsel (or union reps) before and during these interviews.

It's certainly a murky area, dancing between employment law, civil service law, administrative law (as it is a state agency) and criminal law.

I'm of a mixed mind about the entire thing. Theoretically and philosphically and as a professional, I support everyone's right to counsel when involved in any proceeding where criminal charges may attach. In practice, though, are the troopers going to get the "Why involve a lawyer? Why not just talk to us? We'll go easier if you just talk. We know you did it, so why keep us here all night?" that civillians get?

Friday, September 22, 2006

Higher Ed vs. Myspace

Interesting factoid from the article, which I'm not sure I can believe: Myspace accounts for 5% of all web traffic?

This story just rings with First Amendment issues. Can a college, state or private, control what students post on "social networking" websites?

A complicating factor in all this is that these are student-athletes being discussed, and they likely have some greater duty to the institution based upon scholarships, stipends, under-the-table car dealership jobs from alums, etc.

At the same time, these are adults who happen to be enrolled at a college. They have a right to be as ignorant or offensive as they want to be, under the same constraints on speech that bind us all. One can't yell "fire!" in a crowded theater, can one can pose for a redneck action photo involving beer and hunting rifles.

Creative Criminality

Crime doesn't pay, but sometimes I can lead to an amusing story in the paper.

Thursday, September 21, 2006

Jamestown Fire

Jamestown's leaders held a public forum recently on the future of fire protection in the city.

It's not directly a law story, but it has certain implications for real property ownership and urban development, two topics that tie into environmental and municipal law.

Tuesday, September 19, 2006


From another part of the State, further developments following the State Police policy to no longer allow officers to negotiate speeding ticket pleas: Essex County DA Julie Garcia has told county government she'll need another ADA and support staff to handle the influx of cases.

(HT SmallTown Lawyer)

Repeat DWI

An interesting case, via crim law and con law, out of the Town of Lancaster court. This individual was recently arrested when caught driving with an alleged BAC of .26, which is more than three times New York's currently legal limit of .08. It is his seventh arrest for a related offense, and he has four convictions over the past 30 years.

As always, I look for the hard questions. It's easy to say that this guy is a menace and the key should be thrown away after he's locked up, before he kills someone. While I attempt to project neutrality, I have no love for drunk drivers, having lost an aunt to an alcohol-related traffic accident when I was a child. At the same time, four convictions in 30 years, for misdemeanors? That's barely a tremor on the criminal Richter scale. I regularly dealt with clients, in my criminal law practice, who were charged with four misdemeanors a month.

Likewise, the comments of the judge don't seem to be those of an impartial arbiter of fact and law. "He's drunk all the time," implies a certain knowledge of the person that likely wasn't in an arrest report, or else it's a complete assumption. In either case, it's not a decision based on the facts before the justice, which is likely grounds for either an Article 78 of the decision or for a request that the judge recuse himself/motion to change venue.

More than likely, the defendant will take whatever plea offer looks best to him, beacuse that's how 90%+ of cases are resolved. Sometimes, though, I think the system needs some knights to tilt at figurative windmills, such as the judge's comments, to make sure the system continues to work in the correct manner. There's no question in my mind that someone who repeatedly drives drunk deserves jail time--but I firmly believe he also deserves due process of law.

Monday, September 18, 2006

Remains = Bindics

Area news outlets are reporting that dental records identify the human remains recently found in rural Chautauqua County as Yolanda Bindics, missing since August 2004.

It will be intriguing to see what sort of legal/criminal justice issues flow from this discovery, and I hope to expand on that as more information becomes available over the next few days.

At this time, though, one has to hope that the family can find peace and closure with this development.

Speaking of Travel: Rooftop Highway

One of the ongoing issues in Northern New York has been the long-discussed proposal to place an interstate running east-west along the northern stretch of the state. Proponents feel a "rooftop highway" will make access to the area easier for commerce, industry and tourism. Much of this reasoning is built upon hope and studies by road-building firms showing what a boon a road would be. Sadly, that's not really facetious. It's been latched onto as yet another "magic bullet" that will fix everything, and actual discussion and reasoned thought don't happen.

It's an idea worth exploring, because in many ways the communities in that part of the state are cut off by distance and travel hassles. I just can't help but think that a road is two ways and the current discussion ignores the possibility of people and industry departing down that road.

Conference Planning

Not a specifically legal post, as I often encountered this in my pre-law career as well and wanted to vent. I'm now scheduled to go to a training/conference in Boston next month. Or I was told "in Boston"...turns out it's about an hour west of Boston, in a "country setting."

Now, I love the country as much as the next guy, and probably more than many. Yet, when I'm traveling, I really don't mind having a destination actually, you know, near the travel hub. Now I'm left deciding if I want to chance the aging Jamestown Car on an 8+ hour trip or fly in (as I had planned when I thought I was going to Boston) and then rent a car for a week (to sit in a parking lot) or do a cab or something that's going to cost A LOT of money.

Maybe I would feel differently if I lived in a concrete jungle of an urban area, where I'd welcome any chance to get away. As a business traveler, though, I rate convenience a lot higher than a pretty destination.

Friday, September 15, 2006

Advice, Generally

The following is intended as legal advice, but does not mean the Jamestown Lawyer is agreeing to act as counsel or represent you in any way. In fact, it's more "life advice" than legal advice.

Here's a tip: get a receipt.

New York Real Property Law 235-e says that the landlord is to issue a written receipt whenever a cash payment is made. The statute is pretty much without teeth, though, and there's nothing to cause compliance. Some courts have said that there is a presumption of payment against the landlord when a receipt isn't issued:
"[W]here the only evidence before the court is the contradictory statements given under oath by the respective parties, and where the landlord has clearly violated section 235-e of the Real Property Law, the doubt should be resolved in favor of the tenant." Brinkman v. Cahill, 143 Misc.2d 1048, 1049, 543 NYS2d 636 (1989), citing Palmieri v. Hernandez, 127 Misc.2d 369, 485 NYS2d 915 (Mt. Vernon City Ct. 1984).

Locally, the exact opposite presumption holds sway: "no receipt" equates with "no payment".

In another case I'm dealing with, someone allegedly made a huge payment on a purchase and didn't get a receipt. Now there's a very real chance she'll never see any of those thousands of dollars again, and that amount also won't be counted toward what she owes. All because she was doing "a favor" by not being a pain and asking for a receipt.

Be a pain. Be annoying. Hold onto your money until you see pen and paper in the other party's hand. You and I will both sleep better with a written receipt.

Trooper Traffic Tix

Following up on a story from earlier in the week: the Governor vetoed a bill which would have undone the NY State Police regulation and returned the ability to negotiate tickets to troopers at court. As stated in the article, the bill was passed by such overwhelming numbers that an override is possible.

Wednesday, September 13, 2006

Lawyers and Clients

Albany Lawyer had an interesting post the other day, giving his perspective on the mindset and expectations of some clients.

If I were to nitpick anything, it might be his perception of the quality of lawyers taking those small-time traffic cases. I would just hesitate to comment on the quality of the lawyers taking those cases, as my mind just always seeks "more to the story." For example, in my previous job I was 80% with an organization and had a small private practice. Something with a high rate of return, like traffic tickets, was perfect for my practice. I couldn't undertake complex personal injury cases or the like, working from a home office, and I didn't want to take felony/misdemeanor criminal defense cases and let them know where I lived. But then again, I do know lawyers who piece together a livelihood from smaller cases like that and, well, sometimes you do get what you pay for.

The main thrust of this post was going to be on the perceptions of clients. As I stated before, there was a time when I did most of my work from within an organization providing legal assistance to poor people. I'm sure every lawyer has horror stories about clients, but I have a three volume set bound in day-old newspaper and smelling of body odor. It's not only the lack of gratitude, although that's a huge part of it. It's mainly the perception that, as someone offering a free service, that I and my coworkers were somehow servants at their beck and call. Do you take your car to the mechanic, pull right into the bay, and scream at the mechanic until he starts working on your repairs? Do you walk right into the examining room and demand the doctor treat you the moment you get to the office? Then why (and I'm not really blaming *you* personally) do they act like this towards a legal services lawyer?

And I must also work into this two of my other pet peeves. There are the people, frustrated and without a lot of options, who lash out at their lawyer as part of some monied elite who doesn't understand. Because, in their minds, "lawyer" equals "rich." Yes, I drive a ten year old car with 105,000 miles on it and wear the best JC Penney has to offer because I prefer to keep my millions at home to roll around in the wads of cash at night. The other demanding group was always those who had once had some money, mostly middle class people hit by tough times. More often than not, they wanted to prove they "weren't poor" by bragging about how much they had made or could make and typically had a very condescending attitude, as if trying to reassure themselves of their innate superiority.

Which isn't to say I haven't had decent clients who needed help and appreciated they fact they were receiving a free service. The broader perception that a legal aid lawyer isn't only an entitlement, but a servant, just seems a lot more prevalent.

Cheers to private practice!

Tuesday, September 12, 2006

Ignorance of the tax law is big excuse, claims farmer.

Patrick J. Green, Lisbon, is angry that he and his family never knew until this year that farmland could be eligible for tax breaks as part of the county's agriculture district.
(Watertown Daily Times 09/12/06).

A self-described "starving rancher" in St. Lawrence County made the news recently in that area with his demand that the government should refund taxes paid by generations of his family after the farmers failed to sign up for tax abatement programs, allegedly because they weren't aware the programs existed.

If this story triggers in your mind the story about the American farmer hating big government but loving those subsidy checks, you're not alone.

Monday, September 11, 2006

Traffic Tickets

A while back (too lazy to google for a link)there was a change in State Police policy prohibiting troopers from negotiating plea bargain on speeding tickets. This move was somewhat unpopular, as it was seen adding to the caseload of courts and DA's offices.

Some interesting fallout of the decision occurred recently in the Town of Walkill. There the town justice dismissed over 70 tickets for "failure to prosecute" when the trooper was the only authority who showed. The justice's reasoning was that the trooper is now a witness and is not the prosecutor.

Law enforcement sources cited in the article seemed to disagree vehemently, but I believe there's some merit to the judge's decision. The dual role for the officer isn't something that typically happens in our criminal justice system and something I believe needs careful scrutiny.


In taking my daily blog tour today, I came across numerous posts related to the fifth anniversary of the event, and even more senseless and ignorant ranting from the right and the left about who to blame. It continues to amaze me how our society can look at objective, verifiable facts and make huge, sweeping and at best tangentially related conclusions lambasting others as vile and despicable people for daring to have different views on tax structure, trade policy and domestic security.

Instead, lets take today and appreciate that we live in a country where we are free to believe and say what we want to believe and/or say, or not say if we choose, and remember the lives lost five years ago and every day before and since in wars, conflicts, to terrorism and to things such as treatable diseases.

Saturday, September 09, 2006

Phillips Captured

I'm hoping for no interesting courtroom developments that catch my attention and require a post, because I'll be quite happy to put the whole saga of Ralph Phillips behind me. In case you missed the local and national non-stop news on the case, he was captured after a daylong manhunt just over the PA border in Warren County, not far from Jamestown.

As a defense lawyer, though, I'm a little bothered by the rush to assume guilt. I won't blog much on that since I expect I won't change anyone's mind and probably earn the ire of many who don't care about the distinction I'm trying to make. Simply, I think the "presumption of innocence" is a huge right and I don't think anyone should lose it, no matter the horror of the crimes that have been committed.

Thursday, September 07, 2006

Chautauqua County

For those of you not in the area who might be seeking some geographic reference given how often the area has been in the news, Sean Kirst of the Syracuse newspapers (and a county native) blogs on the character and characteristics of the county.


Apologies on the light posting of late. Various reasons, none too exciting from a newsworthy standpoint.

If you are in the Jamestown area this weekend, or have ever considered it, it's going to be worth your while to head out on the town. The Local Music Showcase 2006 will be a three day event, featuring the best in local and regional music. It's a benefit for the Infinity Performing Arts Program.

Tuesday, September 05, 2006

Elderly Driver

Following up on the post from last week regarding the 89 year old that plowed into the farmers' market in Rochester, an 89 year old is on trial in CA for killing 10 while plowing into a farmers' market.

Naked in Vermont

Another Vermont story, dealing with civil liberties. It appears some people in the town want to keep hanging out naked and others are concerned and want a ban on public nudity.

An odd case

Flowers as a sight obstruction? An interesting note out of WNY, courtesy the Buffalo News.

This story is also posted as an example of the equitable/common sense style often taken by the Justice Courts. Although that can be an issue with the law isn't as common sense as one would like and the court decides not to follow what's on the page, generally the courts work as a decent forum for resolving the "smaller" issues (not to trivialize any legal situation, of course, since that's how I keep myself fed).

Additional: Turbines

This link was passed on to me following my previous post, concerning a Chautauqua County windfarm issue.

I try to be completely objective when presenting such items, but my native skepticism is triggered by the side-by-side comparisons of trees and turbines and such. It may well be correct, by the dimensions, especially the length of the blades, are not similar to any tower I've studied or personally viewed.

Monday, September 04, 2006

Enviro Law: Wind Power

The most challenging questions in land use and environmental law right now appear to be related to the placement of wind turbines. The debate has even caused friction within the usual alliances of environmental groups. Some support the expansion of wind power-generating "wind farms", where turbines are clustered, as an attempt to generate more renewable energy. Other environmental interests are concerned with the impact of the turbines on viewsheds and the placement of towers/access roads in sensitive areas. SmallTown Lawyer, based in an area which went through controversy on the issue recently, has good continuing coverage, but the story that prompted today's story was about the ongoing debate in Vermont.

Sunday, September 03, 2006

Phillips Update

I'm certainly not a fan of canonizing someone based solely on career choice, but the late NYS Trooper Joseph Longobardo seems to have been a committed and professional officer. The Buffalo News ran a profile right after the shootings. It is truly a tragedy.

Friday, September 01, 2006

The Practice of Law

Being a member of neither the "he's a misunderstood man" nor a "kill 'em all and let God sort 'em out" camp, I'm avoiding the rest of the blogosphere for the remainder of the morning as the Chautauqua Co. news gets debated and discussed.

Instead, I'd had a post in mind related to what this blog was original conceived as, wherein I was going to chronicle my burgeoning practice. My thought was that, as I came into law without much of a practical idea of what it was like to work in the field, I could assist others by sharing.

So let's share an exchange from yesterday:
Me: Ok, my client is willing to consent to the warrant to remove and a judgment for $1000 in back rent.
Landlord: Ok, but I need to go by and make sure she's out and see the property. If she's out, I won't even go to court. But if she's still got stuff there, I'm going to court to have her put out.
Me: Yes, sir. That's what I'm offering. She'll consent to the warrant to remove. We can sign off on everything and you get the warrant and the judgment without appearing.
Landlord: I don't care about the money, even. I just want her out. I just need to see if she's out.
Me: Well, I think she's out, but we'll consent to the warrant in advance so you can put her out if she isn't.
Landlord: Well, I won't go to court if she's out, but I have to make sure I get her out...

This went on for about five minutes. I'm searching hard to find a lesson in the conversation other than "keep advil close at hand," so I can enlighten all the hordes of hypothetical readers looking for guidance.


In the previous post, there was a comment about the "reasonable doubt" standard, which I had planned to expand upon before becoming distracted. In a criminal prosecution, the burden is on the prosecution to prove that the accused committed the act. The standard that is applied is that the action must be proved "beyond a reasonable doubt." It's a corollary of "innocent until proven guilty."

It's a standard I believe very strongly should apply to anyone, whether granny getting her first speeding ticket at 95 or the vilest career criminal. I think that because I want that same standard for me, if I ever need to appear in court, so I am not willing to deny it to anyone else. Anyone who claims there are "good people" and "bad people" and such protections are only out there to coddle criminals needs to spend some time reading about mistaken identifications and other errors in our system which could happen to any one of us when arrested.

Phillips Update

Yesterday evening, two State Troopers were shot, near Fredonia. An intense manhunt followed, with no arrest announced as of this writing. (Links are to various newspaper reports of the incident).

Ralph Phillips is the number one suspect, due to the location of the shooting (at or near the residence of a family member), but it is also reported that it was an ambush attack and the assailant was not seen. I point that out, as an attorney, because that's the sort of fact that is essential in understanding "beyond a reasonable doubt."

Watching the news last night, I was a little disappointed by the Buffalo stations running to friends and family of the Philips/Horton/Wright clan to get overemotional reactions. It is no surprise that friends and family of an accused criminal take the side of the accused. The problem is the news stations represent this as "local" reaction, as if it is a representation of Chautauqua County or the Pomfret/Cassadaga area as a whole. The State Police Commissioner, flown into Fredonia after the attack, even commented on how Phillips is dangerous and should not be thought of as a folk hero. The implication of that, then, is that there are people who think of Phillips as a folk hero--which, from living in Chautauqua, seems to be some of his friends, family and people who dislike police officers. It's circular, at best, and paints an incorrect picture of the area.

ETA: The NY Times article mentions "locals as active spectators" via t-shirts for sale. Problem with that statement is the shirts for sale come from one source, and while it's possible the site is run by a collective of residents, more than likely it's one person. One person with some entrepreneurial spirit and not an agenda, judging by the pro and con items offered.