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This Garbage Dump Looks Like As Good a Place as Any

In Giugliano v. County of Nassau, 2005 N.Y. Slip Op. 09493, an infant plaintiff was injured while snow boarding on a snow covered pile of garbage located near his aunt's house.  The injury occurred when he ran into a piece of garbage which cause him to fall and break his arm. 

The Second Department, held that the defendant was entitled to summary judgment dismissing the complaint due to the doctrine of primary assumption of the the risk, since the infant plaintiff admitted during his deposition that he was well aware of the presence of garbage at that location.

My first thought was to wonder why this kid was snow boarding on a pile of garbage.  I can think of far more palatable places to engage in cold weather pursuits.  But to each their own, I suppose.

I then moved on to consideration of the legal issues.  While I don't disagree with the Court's holding, I wondered why the defendant didn't seek to invoke the statutory grant of immunity available pursuant to General Obligations Law s. 9-103.  The statute provides, in part, that as long as no fee is charged, the landowner owes no duty to keep the premises safe for entry or use by recreational users pursuing listed activities, and that the landowner has no obligation to warn said users of any hazardous condition, use of property, structure, or activity on the property.  The statute was enacted to encourage landowners to open their lands to recreational users by providing statutory immunity from lawsuits resulting from injuries sustained as a result of the enumerated recreational use.

I reviewed the statute and found that the enumerated activities set forth therein are:

hunting, fishing, organized gleaning as defined in section seventy-one-y   of the agriculture and markets law, canoeing, boating, trapping, hiking,   cross-country skiing, tobogganing, sledding,  speleological  activities,   horseback  riding,  bicycle  riding,  hang  gliding,  motorized  vehicle   operation for recreational purposes, snowmobile  operation,  cutting  or   gathering of wood for non-commercial purposes or training of dogs.

I was surprised to see that downhill skiing and snow boarding are not listed activities. That would explain the defendant's failure to invoke the statutory immunity, since it appears to be inapplicable to the activity at hand. 

In my opinion those activities should be included in the statute.  It makes no sense to provide protection to landowners for injuries sustained while sledding, tobogganing or cross-country skiing, while excluding protection for injuries sustained while down hill skiing  or snow boarding.  I don't see a distinction between the activities and it appears that the landowner is being penalized, in a sense, simply because an uninvited recreational user chose to engage in an activity that is not included in the statute.

Muslim Group Requests Relief From Border Searches Upon Return From Religious Convention in Toronto

On December 15, 2005, a group of Muslims sought a preliminary injunction in federal court in the Eastern District of New York (hat tip: Religion Clause).  They were represented by the New York Civil Liberties Union and requested that the Court prevent the Department of Homeland Security from detaining, interrogating, fingerprinting and photographing American citizens at the border simply because they attended an Islamic conference in Toronto, as had been done upon return from the same conference in December of 2004. 

According to the NYCLU, it was  learned after the detentions in 2004 "that the border agents were obeying a Department of Homeland Security directive instructing them to detain, frisk, photograph and fingerprint individuals who crossed the border on their return from any of several Islamic conferences."  It was reported that policy changes had been made within the last year that have resulted in fewer citizens being subjected to fingerprinting and would prevent the lengthy detentions experienced last year.

The judge indicated that he would rule on the request prior to the start of the conference on December 23.

I would hope that the basis for detention at the border is handled on a case by case basis, as opposed to a blanket policy requiring detention of anyone who appears to be Arabic, or anyone who attended the religious convention.  If the policy has not been changed, and the Department of Homeland Security is under orders to detain and question anyone who attended the conference, then the judge should issue the injunction, since the conduct in question amounts to religioius and ethnic profiling, both of which are unconstitutional.  It will be interesting to see what the judge's findings of fact are and how the judge rules.

I’m Not a Lawyer, But I Play One On TV

According to the NY Court of Appeals, as long as a defendant is represented by at least one admitted attorney, there is no violation of the 6th Amendment right to effective assistance of counsel.  That’s good news for prosecutors.

In People v. Jacobs, decided on December 15, 2005, the defendant appealed from his conviction of Grand Larceny in the Fourth Degree.  Two Bronx assistant Public Defenders had been assigned to his case from the outset and both participated during his bench trial.  It was later learned that one of his attorneys was not licensed to practice law, although she’d attended law school and had passed both the bar exam and the MPRE.  The admitted attorney was not the unlicensed attorney’s supervisor.

The Court described that the unlicensed attorney’s participation in Jacob’s case as minimal in that she had: 1) delivered the opening statement to the jury, 2) conducted a direct exam of the sole defense witness, 3) objected a number of times at trial, and 4) moved to dismiss the People’s case.  The dissent also noted that she’d participated in opposing a motion for recusal of the trial judge.

In People v. Felder, 47 N.Y.2d 287, 291 (1979),the Court had previously held that when “a defendant in a criminal proceeding has unwittingly been represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation.” In People v. Jacobs, the Court declined to extend that rule to every scenario, including Mr. Jacob’s situation. 

Accordingly, the Court concluded that because the admitted attorney was present and “available to ensure that defendant received the effective assistance of counsel” and because the defendant failed to point out any errors in representation committed by the unlicensed attorney, that his 6th Amendment right to effective assistance of counsel had not been violated.

I find this holding to be problematic. The defendant was represented at various stages of his case by the unlicensed attorney alone. And, her representation was substantial, in my opinion. That the admitted attorney was present is of no matter.  She had no knowledge that her co-counsel was unlicensed, and, therefore, had no reason to believe that extra-vigilant scrutiny of the actions of her unlicensed co-counsel was warranted. 

Furthermore, the Court should not have even considered the issue of whether any errors had actually occurred.  The thrust of its prior holding in Fisher was that representation by unlicensed counsel is all that is needed and the lack of prejudice from said representation is irrelevant.

Licensure of attorneys is required for a reason: to protect clients and ensure that they are represented by competent counsel.   Mr. Jacobs was represented by unlicensed counsel at numerous stages during his case.  At the very least, he should have been granted a new trial.

Is NY's Drug Law Reform Act working?

In 2004, New York enacted the Drug Law Reform Act (DLRA), thus reforming the Rockefeller Laws, some of the most punitive drug laws in the US.   At the Sentencing Law and Policy blog, it was noted that the Legal Aid Society released a report yesterday regarding the effectiveness of the DLRA., in addition to a summary of the report. 

The main impact of the new law was to reduce the longest sentences imposed for drug possession and to increase the weight of the drug that would trigger the longer sentences.  The new law also allowed those currently incarcerated and serving the longest sentences to seek re-sentencing under the new standards.

In a New York Times article regarding the Legal Aid findings, it was reported that thus far, "only 142 prisoners - about 30 percent of those originally eligible for new sentences under the revised law - have been freed."  According to the Legal Aid report, one of the primary reasons for this low rate is that DAs are opposing re-sentencing requests and, in some cases, seeking the imposition of longer prison terms.

It would appear that the DLRA is not serving its intended purpose of remedying the effects of the draconian Rockefeller drug laws, in part because the DA's offices are not acting within the spirit of the law.  I believe that more reform is necessary and agree with the following recommendations from the Legal Aid summary:

The Legislature should:

1) Let the judge, not just the District Attorney, decide who gets into treatment,
2) Increase funding for drug treatment programs,
3) Drop low level street sales out of the “B” felony category, and
4) Allow those serving long “B” felony sentences to apply for re-sentencing.

Patriot Act Update--Fighting Terror, But At What Cost?

As mentioned in the previous post on the Patriot Act, a number of provisions of the Patriot Act will expire on December 31, 2005.  A conference report  (hat tip: Volokh Conspiracy) was recently submitted by Senate and House negotiators in an attempt to extend the provisions that are set to expire. Earlier in the week there were reports of an agreement having been reached by the GOP and the White House, but there has been much resistance to the compromise by opponents to the Act in the Senate, although it appears set to pass in the House. 

On Monday, a bipartisan group of Senators introduced an alternative bill that would extend the current act for three months rather than renew the provisions at issue, while the GOP Senators are now considering a compromise to renew the current Act for one year, as opposed to the four year time frame initially suggested.

In my opinion, the concerns regarding the Act and the provisions at issue are valid.  I believe that our government is overstepping the boundaries of the Constitution on a number of fronts in its continuing effort to battle terrorism, with the Patriot Act leading the way. 

In an article from, Declan McCullagh outlines a number of proposed changes set forth in the conference report that are seemingly irrelevant to the Act's purported purpose, which is to  "deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes."  According to McCallagh, the conference report:

• Reduces the amount of contraband cigarettes that qualifies as a federal crime. The number drops from 60,000 cigarettes to 10,000.

• Creates a new federal crime of photographing or videotaping bridges, garages, tracks, warehouses, or other facilities used by railroads, boats, or airplanes--if such recordings were made with the intent of doing harm. Anyone attacking anyone else near such facilities with a weapon--the list includes "a pocket knife with a blade of less than 2 1⁄2 inches in length and a box cutter"--can be punished with stiff prison terms and even the death penalty.

• Increases electronic surveillance of visitors and tourists by ditching a requirement that a surveillance target must be an agent of a "foreign power." Extends electronic monitoring of visitors' and tourists' Internet activities and telephone dialing habits from 90 days to one year.

• Boosts criminal penalties: Possessing methamphetamine for distribution to a minor yields a prison term of up to 20 years. Requires a "feasibility study" of a new federal drug court, and funds mandatory drug testing. • Increases criminal penalties for smuggling goods into the U.S. from five years to 20 years, and creates an additional crime of exporting them.

• Expands what information the FBI can obtain using a Foreign Intelligence Surveillance Act (FISA) court order asking for telephone or Internet activity. It stresses that the recipient must divulge "any temporarily assigned network address or associated routing or transmission information."

I am opposed to the proposed amendments to the Patriot Act and don't think that the provisions at issue should be extended, especially in light of recent reports of increasingly intrusive governmental activities on the home front performed under the guise of fighting terrorism.  For example, a recent article, MSNBC reported  that the Pentagon is amassing information on citizens in a database, as it tracks the activities of "suspicious" groups.  The Village Voice also recently reported on an NYPD Order which allows the police to "use cameras to make training tapes or analyze police procedures, as well as 'when a reasonable belief exists that unlawful activity, terrorist activity, or arrest activity will occur.'" 

I fear that we are allowing our government to chip away at our Constitutional rights in an effort to fight a battle that cannot be won.  If the sunset provisions of the Patriot Act are extended for another four years, I don't believe that we'll be any less likely to experience a terrorist attack than we were on September 10, 2001, but we'll be far more likely to experience governmental intrusions into our private lives.

New Rules for the US Court of Appeals, 2d Circuit

Effective December 1, 2005, the US Court of Appeals for the 2d Circuit has adopted Local Rules 25 and Rule 32(a)(1).  Also, please note the changes to the Federal Rules of Appellate Procedure described in a previous post.

The new rules can be found here

Rule 32(a)(1) requires 1) that all parties in counseled cases submit a digital brief as a pdf e-mail attachment in addition to submitting 10 hard copies of the brief, 2) that counsel certify that the document has been scanned for viruses and that none were detected and a copy of the certification should be attached to both the pdf brief and the paper brief, and 3) if you're unable to comply with the digital brief requirement because it is impractical or presents an undue hardship, you are required to submit a certification outlying your reasons for failing to submit the digital brief.   

Rule 25 requires that litigants submit an unbound copy of any paper document filed with the Court.

Additional information and sample forms can be found here.

If you can't beat 'em, sue 'em

In Urban Justice Center v. Pataki, minority legislators from the New York Assembly and Senate, along with the Urban Justice Center are seeking...well, justice and reform, from the looks of it.  In New York County Supreme Court, the Urban Justice Center, plaintiff Kirwan (a Republican member of the Democratic-controlled Assembly), and plaintiff Krueger (a Democratic member of the Republican-controlled Senate) brought suit against Governor Pataki, defendant Bruno (the Majority Leader of the Senate), defendant Silver (the Speaker of the Assembly), the Assemby, and the Senate.

In the words of the Court, the plaintiffs filed suit seeking a declaratory judgment:

in order to democratize the ways in which each house of the Legislature conducts its business. Plaintiffs seek to reduce certain benefits that the members of the majority party in each house enjoy, certain aspects of the control that the members of the majority party in each house exercise over the legislative process, and certain aspects of the control that the head of the majority party in each house exercises over the members of his party. In effect, the complaint alleges that, in each house, the majority has leveraged its numerical superiority so as to squelch debate among the members of the house, so as to place a strangle hold on proposed bills that are not favored by the leadership of the house, and more generally, so as to prevent members of the minority parties from effectively representing their constituents.

Of the 20 counts in the complaint, the only claims that survived the defendants' motion to dismiss were: 1) count XVI, which alleged that by authorizing the use of an auto-pen to sign messages of necessity the Governor violated a specific constitutional standard and 2) counts I and IV, by the Assemblyman and Senator, complaining of an unequal allocation of resources in violation of the equal protection provisions of the State and Federal Constitutions.

A Felony DWI May Not Serve as a Predicate Felony for Assault 2d

On December 8, 2005, in People v. Rucinski, the Fourth Department held that a felony DWI may not serve as the underlying felony for assault in the second degree, citing People v. Snow, 138 A.D.2d 217, 219 aff'd 74 N.Y.2d 671 (wherein the Court held that a DWI may not serve as the predicate felony for assault in the first degree).

The defendant didn't  preserve this issue for review, but the Court considered it on appeal anyway, since it "fell within the rare exception to the preservation argument set forth in People v. Lopez, 71 N.Y.2d 662, 666."  The Court apparently chose not to enlighten the reader any further as to the mysterious exception set forth in People v. Lopez.  I, however, choose not to be so elusive, and am more than willing to fill in the blank:  the preservation rule does not apply if a portion of the defendant's factual allocution negates an essential element of the crime, casts significant doubt on his guilt, or otherwise calls into question the voluntariness of his plea.   See, for eg., People v. Sandher .

Accordingly, the Fourth Department reversed that part of the judgment that convicted the defendant of assault in the second degree and dismissed that count of the indictment.

Discovery of Insurer Reserve Information

Marc Mayerson has a great discussion  (which is continued in the comments that follow his post) on the issue of the discovery of insurer reserve information at the Insurance Scrawl blog.  In the comments section of his post, he references an article on this topic from that may also be of interest entitled:  Insurance Reserves Discoverable in Bad Faith Case.

His discussion begins as follows:

Discovery of Insurer Reserve Information: Implied Admission of Coverage or Attorney Work Product ? Or Both?

One common area of discovery disputes in insurance-coverage cases concerns reserve information from carriers. The policyholder-side thinking goes that it is inconsistent with the insurer’s flat denial of coverage for it to accrue a reserve on the claim, especially a reserve at close to full value. There is some logical and emotional appeal to this “putting your money where your mouth is” discovery, that is, requiring that what the carrier says to the jury be consistent with where it is putting its money.

Of course, a reserve accrued on the claim doesn’t prove conclusively there is coverage: carriers argue that reserves simply reflect litigation risk or that statutory requirements re solvency compel the accrual of reserves – points that go to the weight of the evidence. Carriers are concerned that reserve evidence is prejudicial to their coverage denial in the eyes of jurors (because a reserve seems to be an implied admission of coverage or at least the reasonable possibility of coverage), and so carriers tend to fight assiduously to prevent reserve information from coming to light.

He then goes on to discuss a recent decision on this issue from the Supreme Court of West Virginia.

This is an interesting discussion from a blog that I highly recommend to insurance defense practitioners and plaintiff's counsel alike.