Sui Generis--a New York law blog

Law and Web 2.0

Today, I participated in a CLE, Practicing Law in The 21st Century, with two fellow bloggers, Matt Lerner of the New York Civil Law Blog and Gregory Bell of the Jazz@Rochester blog.  The venerable Charles Inclima was our moderator.

In conjunction with the CLE, Greg, Matt and I created a blog, creatively named: Practicing Law in the 21st Century.

This blog highlights "tools that will help lawyers to practice beyond the four walls of the law office and make life within those wall less burdensome and, possibly, less expensive" and includes information regarding:

• online tools for your law office
• online tools for your law practice
• links to weblogs, blawgs, and other resources, many of which are New York specific
• Web 2.0 online productivity tools and resources
• other law office and practical links

Our goal is to periodically update the blog with new resources and information.

Check it out.  If I may say so myself, it's a great resource!

The New York Legal News Round Up

It's time for the round up of interesting New York legal news headlines from the past week:

• New law requires sex offenders to reveal their Internet identities (Buffalo News)

• NY judges warned against using authority to protest pay (Newsday)

• No Child Left Behind case appealed to Second Circuit Court of Appeals (StamfordPlus)

• Ex-NYPD Cop Guilty Of Gun, Drug Charges (North Country Gazette)

• Woman pleads guilty in Spitzer prostitution probe (AP)

• Woman mistaken for a man settles NY lawsuit (Reuters)

Youthful Inexperience Is Not a Crime

This week's Daily Record column is entitled "Youthful Inexperience Is Not a Crime."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.

******

Youthful inexperience is not a crime

Last week, the New York Court of Appeals handed down its decision in People v. Cabrera, 2008 NY Slip Op 03994.

In this case, the 17 year-old defendant, Brett Cabrera, was driving an SUV in Sullivan County with four teenage passengers.

It is estimated he was traveling at about 70 mph in a 55- mph zone and failed to slow down in a curve for which the recommended speed limit was 40 mph.

His vehicle skidded off the roadway and into a tele- phone pole. Three of his passengers were killed, and the other suffered a fractured spine. None were wearing seatbelts. Cabrera was not under the influence of alcohol or drugs at the time of the accident.

A jury convicted Cabrera of three counts of criminally negligent homicide, assault in the third degree, reckless driving and other traffic infractions. He was sentenced to 1 1/3 to 4 years in state prison. He served the full length of his sentence in a maximum-security prison while his appeal was pending.

The verdict and sentence were upheld by the Third Department. The majority opinion acknowledged that the New York Court of Appeals had previously held that excessive speed alone could not form the basis for a conviction based on a showing of recklessness or culpable negligence, but concluded that the necessary level of culpability was established in light of the evidence that Cabrera committed two traffic violations: failing to ensure that no more than two passengers were under the age of 21; and failing to require that all passengers were wear seat belts.

When I wrote about this case a few months ago, I lamented the Third Department’s decision and was hopeful that the Court of Appeals would reverse the ruling.

Last week, my hopes became reality when the Court of Appeals disagreed with the Third Department, concluding that Cabrera’s, traffic violations did not cause or contribute to the crash.

The court held that:

The question on this appeal is therefore whether, when viewed in the light most favorable to the People, the evidence adduced at trial showed that Cabrera's conduct constituted "not only a failure to perceive a risk of death, but also some serious blameworthiness in the
conduct that caused it" (Boutin, 75 NY2d at 696). Measured by that standard, the evidence falls short. For a 17-year-old to badly misgauge his ability to handle road conditions is not the kind of seriously condemnatory behavior that the Legislature envisioned when it defined
"criminal negligence," even though the consequences here were fatal...

This crash resulted from noncriminal failure to perceive
risk; it was not the result of criminal risk creation.

This was a horrific and devastating accident that will no doubt haunt Cabrera for the rest of his life.  What happened in this case was a tragedy for all involved. Young lives were needlessly lost as a result of Cabrera’s negligence.

However, as the Court of Appeals aptly noted, negligent conduct does not necessarily constitute criminal conduct.  If ever there was a case in which prosecutorial discretion was called for, this was it.  Instead, discretion was thrown to the wind and a young man was criminally prosecuted and convicted for the crime of youthful inexperience.

Fortunately, the Court of Appeals had the good sense to reverse this travesty of justice and allow the issue of Cabrera’s negligence to be prosecuted in the proper venue:  civil court.

The New York Legal Blog Round Up

It's Monday and time to get back to work.  But first, it's the round up of interesting posts from my fellow New York blawgers:

Judgment Day:

• Judgment Day at the Third and New Legislation

Juz the Fax:

• It's All In The Timing

New York Attorney Malpractice Blog:

• 3 Lessons from this Legal Malpractice Case

New York Civil Law:

• Tenuous Case of Respondeat Superior?

New York Coverage Counsel:

• Ongoing or Completed Operations -- Additional Insured Coverage Found

New York Personal Injury Law Blog:

• NY Pension Scandal: "The Predominant Class Will be Lawyers"

New York Public Personnel Law:

• NY PERB holds notices of claim are no longer required in improper practice cases against Boards of Education

No-Fault Paradise:

• 2007 Insurance Complaint Rankings

Simple Justice:

• A New District Attorney for Manhattan?

The New York Legal News Round Up

It's time for the weekly round up of New York law-related news headlines:

• Highest court refuses to hear gay marriage case (rochesterhomepage.net)

• A New York Appeals Court Allows Victims of the 1993 World Trade Center Bombing to Recover Massive Damages from the Port Authority (Findlaw)

• Amazon Sues To Scuttle NY Internet Tax (Online Media Daily)

• Jury in New York City convicts fan of stalking Uma Thurman (AP)

• Group's lawsuit challenges NYPD's stop-and-frisk policy (AP)

• New York State Supreme Court Judge’s Signature Forged on a Decision (Yonkers Tribune)
  

It's for your own good.

This week's Daily Record column is entitled "It's for your own good."  The article is set forth in full below and a pdf of the article can be foun here.

My past Daily Record articles can be accessed here.

*****

It's for your own good.

“Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their consciences.”
     — C. S. LEWIS

Over the last over 40 years, our government has enacted laws for the good of its presumably dimwitted
and uninformed citizens.

In 1965, the federal government first required that health-warning labels be placed on cigarette packages. The warnings became more explicit in 1984 with the enactment of the Comprehensive Smoking Education Act. The goal of the legislation was to provide consumers with information regarding the health risks of tobacco.

In an effort to reduce head injuries caused during motorcycle accidents, the New York State legislature passed a law in 1967 requiring that all motorcyclists wear a helmet.

Our state government saw fit to enact legislation in 1984 requiring the use of seatbelts in motor vehicles. The law was enacted for the good of New York’s citizens, the rationale being that it would reduce the number of deaths caused by automobile accidents.

In 1989, a federal law became effective which required that all alcoholic beverages have warning labels informing consumers of the dangers of drinking and driving and of the effects of drinking alcohol during pregnancy.

That same year, New York enacted the Clean Indoor Air Act, which prohibited smoking in auditoriums, elevators, gymnasiums, food stores, shared taxicabs and limousines. In 2003, the antismoking ban
was expanded to restaurants, bars and the workplace. Again, the law was intended to benefit New York residents, both smokers and non- smokers.

Most recently, a New York City Health Department regulation requiring that fast food chain restaurants disclose caloric information on their menus was upheld by Southern District of New York Judge Richard J. Holwell in New York State Restaurant Association v. New York City Board of Health, 08 Civ. 1000. The stated goal of the legislation was to hinder the “obesity epidemic.”

Last week, Judge Holwell concluded that the caloric disclosure requirement of Regulation 81.50 was reasonably related to the government’s interest in reducing obesity and thus did not infringe on the
First Amendment rights of fast food restaurateurs:

Regulation 81.50 compels only the disclosure of ‘purely factual and uncontroversial’ commercial information — the calorie content of restaurant menu items. Furthermore, ... (it) attempt(s) to address a state policy interest by making information available to
consumers, consistent with the First Amendment objective... Therefore Regulation 81.50 passes constitutional muster as long as there is a ‘rational connection’ between the dis-
closure requirement and the city’s purpose in disclosing it... (A) regulation may be reasonably related to the goal it is intended to promote even if ‘it does not get at all facets of the problem it is designed to ameliorate,’ ... Regulation 81.50 is an entirely reasonable approach to the city’s goal of reducing obesity.

And thus another law enacted for the benefit of the feckless New York State consumer successfully withstood constitutional scrutiny.

Unfortunately, I’m unsure whether to declare victory or foul. 

On the one hand, it is indisputable that some people have a tendency to make horrible lifestyle choices.  Arguably, access to information regarding their options might assist them in making better decisions for themselves and their families. Accordingly, requiring large corporations to make relevant information regarding their products readily available is not necessarily objectionable.

However, our government’s increasing tendency to require its citizens to comply with paternalistic mandates enacted for “their own good” is unpalatable at best.

Likewise unappealing is the self-interested motivation lurking behind the arguably laudable First Amendment claims of the New York State Restaurant Association: unadulterated greed.

I am thus resigned to ambivalence on the issue of whether fast food menus should include caloric content information. For, the inescapable fact remains:  regardless of whether you are swayed by free speech claims or public health concerns, whenever the average citizen is pitted against large, faceless entities, be they corporate giants or the government — the little guy rarely, if ever, wins.

The New York Legal Blog Round Up

It's the first Monday in May, and time for the weekly round up of enlightening posts from my fellow New York blawgers:

Indignant Indigent (there's a slew of new posts not featured here, so head on over and check them out for yourself):

• Post Release Supervision: What is the Remedy When Not Imposed By a Judge?
• Weapons and Assault Sentences to Run Concurrently
• Evidence of ABSENCE of Sexual Activity Barred by CPL 60.42
• "I Did This Before" Admissible as Res Gestae

Judgment Day:

• NY High Court tosses teenager’s homicide conviction

New York Attorney Malpractice Blog:

• Hearst v. Hearst and Legal Malpractice

New York Civil Law:

• Recent New York Court of Appeals' Insurance Coverage Decision

New York Personal Injury Law Blog:

• New York Judges Slowing Cases From Legislators' Law Firms Over Pay Raise Issue (Updated)

No-Fault Paradise:

• NO-FAULT WRAP UP

Simple Justice:

• Kaye to Judges: Don't Rock The Boat!

Wait a Second!:

• Can you sue the City for prosecuting an unconstitutional State law?

 

Generally Speaking, Death By Speeding Not a Crime

Last week, the New York Court of Appeals handed down its decision in People v. Cabrera, 2008 NY Slip Op 03994.  I wrote about this case in my Daily Record column last September and was quoted in March in this article from Sullivan County's newspaper, the Times Herald-Record. 

In both instances I stated that it was my opinion that the Third Department incorrectly upheld the jury's verdict, which convicted Mr. Cabrera of three counts of criminally negligent homicide, assault in the third degree, reckless driving and a number of traffic infractions.  The Third Department reasoned that the verdict was supported by the traffic violations convictions, which included failure to keep right, driving left of a yellow line and violations of his junior license restrictions (namely that he failed to ensure no more than two passengers were under the age of 21 and that all passengers were wearing seat belts).

It was my opinion that:

In this case, a 17-year-old boy who possessed a junior driver’s license was sentenced to one and one-third to four years in state prison for doing what inexperienced teenage drivers have done since the advent of motor vehicles — exercising poor judgment while driving too fast...Civil liability does not necessarily amount to criminal liability...The vast majority of errors in judgment simply do not rise to the level of culpable conduct required for a criminal conviction.

The New York Court of Appeals (at least the majority of the court, in this case) and I apparently see eye to eye on this issue.  The Court held that:

For a 17-year-old to badly misgauge his ability to handle road conditions is not the kind of seriously condemnatory behavior that the Legislature envisioned when it defined "criminal negligence," even though the consequences here were fatal. This crash resulted from noncriminal failure to perceive risk; it was not the result of criminal risk creation.

My faith in humanity is restored--at least temporarily.

 

Define That Term #281

Last week's term was sprinkling trust, which is defined as:

A trust that gives the person managing it (the trustee) the discretion to disburse its funds among the beneficiaries in any way he or she sees fit.

No one guessed correctly this time around.

Today's term is:

volenti non fit injuria.

As always, no dictionaries, please.

Up & Coming Attorneys

Once again, Sui Generis' partner, The Daily Record, is seeking nominations for the Up & Coming Attorneys for 2008. 

Each year, The Daily Record spotlights some of the younger attorneys in the Rochester & Buffalo area who have demonstrated a commitment to the legal profession early in their careers, distinguishing themselves from many of their peers.

In the next few weeks, The Daily Record will identify and recognize Up & Coming Attorneys from the Seventh & Eighth Judicial Districts.

Nominations are due by Friday, June 27.

Up & Coming Attorneys will be held on Thursday, July 31st from 5:30-7:30 p.m. at Terry Hills in Batavia.

Further information and the nomination form can be found here.

The New York Legal News Round Up

The work week is more than halfway over and that means it's time for the round up of New York law-related headlines from the past week:

• Chief Judge Writes N.Y. Governor to Deny Work 'Slowdown' by State's Judges (Law.com)

• Appeals court tosses out NYC lawsuit against gun industry (AP)

• New York City Ballet Sues Over Workout Video (New York Lawyer)

• Port Authority Ruled Liable for 1993 World Trade Center Bombing (Law.com)

• New York fast food joints ordered to publish calorie count (AFP)

• Judge OKs Citigroup $33 mln gender bias settlement (Reuters)

Voices From the Grave

This week's Daily Record column is entitled "Voices from the grave."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.

******

Voices from the grave.

Last week, the U.S. Supreme Court heard oral arguments in Giles v.California,No. 07-6053.

At issue was whether the defendant’s Sixth Amendment right to confront his accusers was violated where the trial court admitted the dead victim’s prior statements into evidence, where the statements implicated the defendant in her murder.

Last year, the New York State Court of Appeals considered a similar issue in People v. Nieves-Andino, 2007 NY Slip Op 05584, but never reached the constitutional mer- its of the issue, concluding instead that the victim’s state- ments were not testimonial.

In Nieves, Jose Millares, the victim who later died, was discovered lying in the road by a police officer respond- ing to a 911 call regarding shots fired.

The responding officer summoned an ambulance and then asked Millares for his name and other pedigree information. He also asked him what had happened. Millares responded that he had argued with a man named Bori who had shot him three times.

The defendant argued that admitting the victim’s statement into evidence at trial would violate his Sixth Amendment right to confront the witnesses against him pursuant to the Supreme Court’s ruling in Crawford v. Washington. The prosecution argued that the statement fell under the excited utterance exception to the hearsay rule and that its admission would not violate the Sixth Amendment.

The court concluded the victim’s statements did not violate the defendant’s right to confront witnesses against him since the officer’s primary purpose in questioning Millares was to address an ongoing emergency, and thus the statements were not testimonial in the first instance: “Our decision is guided by Crawford v. Washington(541 US 36 [2004]) and Davis v. Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held the Federal Confrontation Clause prohibits the ‘admission of testimonial
statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination’ (Davis, 126 S Ct at 2273). Only statements that are testimonial make the absent declarant a ‘witness’ within the meaning of the Confrontation Clause (see id.) … When ... a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may ‘evolve’ from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (id.). On this record, however, the initial purpose of Officer Doyle’s inquiry did not change.”

In contrast, under the facts of Giles v. California, the statement appears to be testimonial, therefore the Supreme Court must address the constitutional issue and consider whether the defendant’s Sixth Amendment rights were violated by the trial court’s decision to admit the dead victim’s statements into evidence.

The highest appellate court below, the California Supreme Court, concluded the defendant waived the right to confront his accuser by operation of the common law “forfeiture by wrongdoing” doctrine, since his actions were the very reason that the dead victim was unavailable to testify.

Based on recent decisions from the Supreme Court, I predict that it will uphold the California Supreme Court’s ruling.

This conclusion, while an uncomfortable one for me as a criminal defense attorney, is the only outcome that would make sense from a public policy perspective. To hold otherwise would be to encourage assailants to cause every physical assault to end in death in order to take advantage of the protective umbrella of the Sixth Amendment.

Quite frankly, I’m not sure that the alternative — allowing murderers to benefit from the death of their victim — is one that should be available in a civilized society such as our own.

The New York Legal Blog Round Up

The weekend is long gone, and that means that it's time for the weekly round up of interesting and informative posts from my fellow New York blawgers:

Indignant Indigent:

• Some Recent Decisions From the Second Department

Judgment Day:

• Judgment Day at the Appellate Division, Third Department

Juz the Fax:

• Dancing With The Bar

New York Civil Law:

• Quick Post About Admissibility of Accident Report

New York Public Personnel Law:

• Termination of an individual following his or her failure to obtain a required license deem a “provoked discharge”

Second Opinions:

• Right of Action.

Simple Justice:

• What do 100 Blacks Know?

Wait a Second!:

• Class action against credit card companies get the green light

Define That Term #280

Last week's term was eggshell skull, which is defined as:

A hypothetical medical condition used to illustrate the idea that if you are at fault when you injure someone, you are responsible for all the consequences, whether you could have foreseen them or not. For example, if you cause an injury to a hemophiliac who begins to bleed severely, you are responsible for whatever happens to him, even though you had no way of knowing that the injury would be so severe.

Once again, Edward Wiest got it right!

Today's term is:

sprinkling trust.

As always, no dictionaries, please.

Mining for Metadata in New York?

In the smack down of the decade, the New York County Lawyer's Association Ethics Committee butts head with the American Bar Association Ethics Committee on the issue of mining for metadata inadvertently disclosed by opposing counsel.  It's hunky dory per the ABA, but apparently the NYCLA respectfully disagrees with that conclusion.

And how:

This Committee finds that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA's opinion on this issue. Thus, this Committee concludes that when a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.

Oh snap!  Wish I could have been a fly on that wall!

Hat tip:  Legal Blog Watch.