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:
Juz the Fax:
New York Attorney Malpractice Blog:
New York Civil Law:
New York Coverage Counsel:
New York Personal Injury Law Blog:
New York Public Personnel Law:
No-Fault Paradise:
Simple Justice:
It's time for the weekly round up of New York law-related news headlines:
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.
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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.
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):
Judgment Day:
New York Attorney Malpractice Blog:
New York Civil Law:
New York Personal Injury Law Blog:
No-Fault Paradise:
Simple Justice:
Wait a Second!:
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.
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.
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 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:
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.
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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 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:
Judgment Day:
Juz the Fax:
New York Civil Law:
New York Public Personnel Law:
Second Opinions:
Simple Justice:
Wait a Second!:
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.
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.
It's the middle of the week and time for the round up of interesting New York news headlines from the past week:
This week's Daily Record column is entitled "The lawsuit that never should have been." 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.
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The lawsuit that never should have been
“Where the use of Mounted Unit becomes necessary for crowd control purposes, incident commanders are reminded that if Mounted officers are deployed for such purpose it is important to ensure that a crowd or group to be dispersed has suffi- cient avenues of escape and/or retreat available to them and has a reasonable chance to disperse.”
— Paragraph 3 of the March 28 settlement order in Stauber and the New York Civil Liberties Union v. the City of New York, 03-cv-09164
In 2003, the New York Civil Liberties Union filed a lawsuit against the New York Police Department on behalf of protesters injured by police during peaceful antiwar demonstrations.
The complaint alleged the NYPD prevented protesters from leaving police barricaded areas and approached the trapped crowds on horseback, causing injuries to many in attendance.
The plaintiffs included a then-law student, now an attorney, who was injured by a police horse and a woman confined to a wheelchair who alleged she was trapped behind a police barricade and her wheelchair was damaged by a police officer when she attempted, for medical reasons, to leave the barricaded area.
Pursuant to the Settlement order, the defendants agreed to pay $100,000 in attorneys fees to the New York Civil Liberties Union and $25,000 in damages to the injured plaintiffs.
The NYPD also agreed to adopt written policies that ensure those lawfully exercising their First Amendment rights can gain access to protest areas, have adequate means of ingress and egress from the areas set aside for the protest, and that police provide adequate warning and an opportunity to disperse prior to using the Mounted Unit for crowd control.
In other words, the police agreed, apparently because they had no other choice, to give people a chance to get out of the way before charging into crowds on police horses, each of which weighs a ton or more.
It would seem this last concession would have been self-evident to the Mounted Police as they sat atop their large horses, looking down on the tiny mortals below them — some in wheel chairs, some with children, some with long, unkempt hair — engaging in a process as American as apple pie: peacefully protesting a contentious war.
Shouldn’t “New York’s finest” have known better than to stomp on its citizens with the heavy hooves of horses? One would think that in 21st century America, such flagrant abuses of police power wound be a thing of the distant past.
One would hope taxpayers wouldn’t have to foot the bill for a costly lawsuit brought to prevent the NYPD from using horses to stampede the very same people it is paid to protect.
And yet, it turns out such wishful thinking is apparently naïve, at best, since that is exactly what New York taxpayers had to do: pay damages to the injured plaintiffs, pay attorneys fees to their counsel and fund the investigation and defense of a lengthy federal lawsuit for police conduct that never should have occurred in the first place.
Police conduct in this instance was deplorable just as the costs of defending the abusive conduct were unnecessary and unforgivable.
All the more unforgivable is the fact that this claim was even necessary to protect our constitutional right to gather and engage in peaceful protest, for this was a lawsuit never should have been.
It's time for weekly round up of interesting posts from my fellow New York law bloggers:
New York Attorney Malpractice Blog:
New York Civil Law:
New York Personal Injury Attorney Blog:
New York Public Personnel Law:
Simple Justice:
Wait a Second!:
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