Previous month:
September 2007
Next month:
November 2007

NY Court of Appeals--No Dice Officer

Gavel2 At issue in Matter of Victor M., 2007 NY Slip Op 07742 was the legality of the seizure and subsequent search of a 15-year-old juvenile that resulted in the discovery of narcotics. 

The defendant was gambling with dice when a Brooklyn police officer came upon him.  The officer decided to issue a summons for the violation of Loitering, but neither the defendant nor his mother, who happened upon the scene, had any identification on them.  Rather than allow the defendant to obtain ID, the officer handcuffed him, took him down to the station, and searched him.

The New York Court of Appeals rejected three different arguments offered in support of the search. 

First, that the misdemeanors promoting gambling in the second degree (Penal Law § 225.05) and possession of a gambling device (Penal Law § 225.30) were inapplicable to the facts of this case, and thus could not be used by the People to support the fruits of the defendant's arrest.

Second, if anything, the defendant's actions amounted to the violation of loitering (Penal Law § 240.35 [2]), which is a violation, not a crime.  Accordingly, the officer's "observations of (the defendant) gambling in the hallway" did not provide him with probable cause for the arrest since Family Court Act § 305.2 [2] only authorizes the warrantless arrest of juveniles in situations where an adult could be convicted of a "crime".

Finally, and most importantly, the Court rejected the argument that the detention the defendant amounted to simply a "stop" as opposed to an arrest:

Finally, the presentment agency argues before us that Officer Recio's detention of Victor was not an arrest, but only a stop based on a reasonable suspicion that Victor was trespassing or loitering (see People v Hicks, 68 NY2d 234, 238-239 [1986]; People v DeBour, 40 NY2d 210, 223 [1976]). The flaws in this argument are many. Officer Recio testified to an "arrest," not a temporary detention. Temporary detentions are authorized by statute only for felonies and misdemeanors, not violations (CPL 140.50 [1]). A temporary detention justifies only a frisk, not a full-fledged search (DeBour, 40 NY2d at 223). And finally, assuming that transporting a suspect to the station house in handcuffs could ever be found to be only a temporary detention under DeBour and Hicks, even a temporary detention is unlawful if it is not reasonable under the circumstances. Here, nothing in the record shows that it was reasonable for Officer Recio to take Victor to the station house, instead of going with him to his apartment to get his identification.

What a decision! 

I only wish the Court had not left open the possibility that transporting a handcuffed suspect to a station house could, under a factual scenario not yet encountered, constitute a detention.   I've wracked my brain and can't come up with a single factual scenario that would not constitute an arrest under those circumstances.  How could any reasonable person, innocent of a crime, feel free to leave when handcuffed in the backseat of a moving and locked police cruiser?  That's the very definition of an "arrest", if you ask me.


Define That Term #250

Dictionary_2 Monday's term was reciprocity, which is defined as:

n. mutual exchange of privileges between states, nations, businesses or individuals. In regard to lawyers, reciprocity refers to recognizing the license of an attorney from another state without the necessity of taking the local state's bar examination. Such reciprocity is seldom granted now, since many large states refuse to give it.

No one guessed this time around.

Today's term is:

encumbrance.

As always, educated guesses are welcome, but dictionaries are not.


Vote for the Best NY Blawg and Blawger

Bestof_ny_2



Vote tally UPDATE:  See the comments section of this post for the vote tallies as of 1:06 p.m. on 10/19/07.

**************************

The nominations are in and it's time to vote for your favorite New York Blawg and New York-based blawger.  Voting will close on Wednesday, October 24th at midnight EST.  Although Sui Generis was nominated, I'm taking it out of the running since the contests are being hosted on this blog.

Also, I inadvertantly left out one of the nominated New York blawgers, so I posted a new poll which includes that blawger.  Only 3 votes were cast in the prior poll, and I made note of those for whom the votes were cast and will include those votes in the final tally.

Of course, there are prizes at stake, as described after the polls.  And, remember, you can only vote once!

Who is your favorite New York-based blawger?
Scott Greenfield, Simple Justice
Eric Turkewitz, New York Personal Injury Law
Monica Bay, The Common Scold
Walter Olson, Overlawyered
Andrew Lavoot Bluestone, New York Attorney Malpractice Blog
Dustin, Quizlaw
Bridget Crawford, Feminist Law Professors
Ann Althouse, Althouse
Peter Lattman, Wall Street Journal Law Blog
Paul Finkelman, Balkanization
Melissa Lafsky, Opinionistas
Marty Schwimmer, Trademark Blog and Between Lawyers
Caitlyn Borgmann, Reproductive Rights Prof Blog
Free polls from Pollhost.com
Which is your favorite New York blawg?
No Fault Paradise
New York Civil Law
Judicial Reports
Indignant Indigent
New York Criminal Term Library
Wait a Second!
Free polls from Pollhost.com

Best New York-based blawger

Billable_hour_2

The winner of the best NY-based blawger contest will receive their choice of any single item sold by The Billable Hour (luxury watch line and sets excluded).  The Billable Hour, co-owned by husband and wife team Lisa Solomon and Mark Solomon, both of whom are attorneys, offers clever gifts and greeting cards for legal professionals.



Rodrigo

Second and third place winners receive a copy of the newly released novel about the misadventures of two former Camden cops-turned-lawyers, Death by Rodrigo.  It's written by a former federal prosecutor Ron Liebman.



Best New York Blawg

Chambermaid

The winner of the Best New York blawg contest receives a signed copy of attorney Sairo Rao's witty novel, Chambermaid, about a young attorney's eventful year as a clerk for a Federal Court Judge.





Partyfirst_3_2

Second place receives a signed copy of attorney Adam Freedman's newly released book, about the curious world of legalese, The Party of the First Part.






Rodrigo_2 Third place receives a a copy of the newly released novel about the misadventures of two former Camden cops-turned-lawyers, Death by Rodrigo.  It's written by a former federal prosecutor Ron Liebman.


The New York Legal News Round Up

Latest_news It's already the middle of the work week and that means it's time for the round up of interesting New York legal news headlines over the past week:


Whose morals must we enforce?

Drlogo11 This week's Legal Currents column, which is published in The Daily Record, is entitled "Whose morals must we enforce?"  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

*******

Whose morals must we enforce?

Two weeks ago the Appellate Division, Fourth Department, issued its decision in In re Bobbijean P., 2007 WL 2812608. At issue in the case was the legality of Monroe County Family Court Judge Marilyn O’Connor’s order requiring the appellant, a homeless African-American struggling with drug addiction, to refrain from becoming pregnant “until she has actually obtained custody and care of (her child) Bobbijean P. and every other child of hers who is in foster care or has not been adopted or institutionalized.”

This case garnered national media attention and an amicus curiae brief was filed by the New York Civil Liberties Union and the National Advocates for Pregnant Women on behalf of more than 40 leading medical professionals and child welfare and public health organizations. The brief alleged, in part, that the order violated public policy considerations and infringed on the appellant’s fundamental constitutional right to privacy.

In mid-August I wrote about this case (“No pregnancy for you,” Aug. 13) and at the conclusion of my article, I wondered: “Will the court conclude that the right to procreate without interference from the state is a constitutional guarantee, or simply a guideline that can be altered with the stroke of a pen?

“Will the court’s decision take us one step closer to making governmental regulation of procreation as perceived by Margaret Atwood in the novel ‘The Handmaid’s Tale’ a reality? I certainly hope not.”

Much to my satisfaction the appellants, represented by the Monroe County Public Defender’s Office, Eric Dolan of counsel, prevailed. To my disappointment, however, the court specifically declined to address the important constitutional issues presented, instead concluding Judge O’Connor had no authority under family court rules set forth in 22 NYCRR 205.83(a) and (b) to impose the condition.

Basic and critical constitutional rights were at stake. The case revolved around issues of self-determination and self-control. Does the government or the individual decide when, where and how a person may or may not procreate?

Do our federal and state constitutions permit the government to prevent drug addicts from engaging in one of the most intimate and personal acts in order to avoid the risk of a governmentally mandated abortion should birth control fail?

Is a person under the influence of drugs capable of making rational decisions regarding sexual activity and birth control? If not, then is forced sterilization the only option available to relieve them of making such a choice?

Is forced sterilization an alternative that we, as a civilized and democratic society, should consider even if it turns out to be constitutionally permissible?

Another important and difficult to answer question at stake in this case is just what makes a “good” parent? How do we, as a society, come to an agreement as to what qualities a “good” parent should exhibit?

Some might argue that single mothers on welfare are bad parents since they set a poor example for their child. Others would say single mothers or parents who are employed are bad parents since they allow other people raise their child. Still others might argue that parents who send children to be educated outside the home are bad, since home schooling is the best way to teach children.

It doesn’t end there. People of certain faiths believe parents who drink any amount of coffee or alcohol set a poor example for their children since those substances are harmful to the body and spirit. Others believe blood transfusions are forbidden by God, and they refuse to allow their dying children to undergo the procedure.

There are certain cultures that condone the infanticide of female infants and a parent who engages in this conduct is not deemed to be a bad one.

America is a melting pot of cultures, religions and beliefs. Absent a consensus as to which ideals are “correct,” I simply don’t see how governmental interference with an individual’s ability to procreate would be constitutionally permissible.

This was a constitutional issue ripe for judicial determination. It’s unfortunate the Fourth Department declined to address it.


The New York Legal Blog Round Up

Blawgs_2 It's Monday and time for the weekly round up of interesting posts from my fellow New York blawgers:

f/k/a...

New York Civil Law:

New York Legal Update:

New York Personal Injury Law Blog:

New York Public Personnel Law:

No-Fault Paradise:

Second Opinions:

Simple Justice:

Wait a Second!


New York Court of Appeals on the Issue of Whether Collateral Estoppel Applies to Civil Action Against Joel Steinberg

Gavel2Yesterday the New York Court of Appeals considered an interesting legal issue in the civil matter stemming from the same acts that resulted in former criminal defense attorney Joel Steinberg's conviction for manslaughter.  This was an infamous case that resulted in the horrible death of his 6-year-old adopted daughter, Lisa.

In Launders v Steinberg 2007 NY Slip Op 07499, the birth mother and administratix of Lisa's estate commenced an action against Steinberg alleging, in part, two claims for prior acts of abuse (fifth and sixth causes of action) and one claim that Steinberg, despite having actual notice that Lisa sustained a life-threatening injury, recklessly and dangerously failed to take reasonably prudent action to secure medical treatment for her (seventh cause of action). 

At issue was whether the trial court properly granted summary judgment in favor of plaintiff as to the three causes of action described above by invoking the doctrine of collateral estoppel based upon his prior manslaughter conviction.

The Court first set forth the applicable law relating to collateral estoppel:

In order to invoke the doctrine of collateral estoppel, "[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling" (Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]).

The Court then held that the doctrine of collateral estoppel was inapplicable to the fifth and sixth causes of action in this case:

Here, the jury in defendant's criminal trial was not required to determine whether Lisa was subjected to repeated physical abuse by defendant during the months prior to the acts resulting in her death. Although evidence of prior acts of abuse was presented at defendant's criminal trial, the issue was not "necessarily decided" therein. Thus, Supreme Court's award of summary judgment on plaintiff's fifth and sixth causes of action must be vacated and a new trial held on liability on these causes of action.


Define That Term #248

DictionarySunday's term was interlineation, which is defined as:

n. the act of writing between the lines of a document, usually to add something that was omitted or thought of later. The issue (debated question) is whether both parties to a document (a contract, for example) had agreed upon the addition or whether the new words were part of the document (like a will) when it was signed. Good practice is either to have all parties initial the change at the point of the writing or have the document re-typed and then signed.

No one guessed this time around.

Today's term is:

viz.

As always, no dictionaries, please.


Best of NY Blawgs Contests

Bestof_ny_3



Sui Generis will be holding two contests over the next few weeks for Best New York Blawg and Best New York Blawger.

I'll be accepting nominations in the comments section of this post for each contest until midnight EST on Thursday, October 18th.  Shortly thereafter I'll post two polls, one for each contest.

Nominations for the Best New York Blawg contest (contest #1) should be limited to legal blogs that are updated at least once per week and regularly include posts devoted to New York legal issues. 

Nominations for the
Best New York Blawger contest (contest #2) should be limited to legal blogs with a New York-based author that are updated at least once per week.

I retain the right to exercise discretion in applying the above-mentioned guidelines to those blogs that are nominated. 

My intent is to include all blogs that are nominated, but  I will likely cap the number for each contest at 10 blogs, so the more nominations for a given blog, the better.

And, of course there will be prizes!

For the Best New York Blawg contest:

Chambermaid

First place receives a signed copy of attorney Sairo Rao's witty novel, Chambermaid, about a young attorney's eventful year as a clerk for a Federal Court Judge.


Partyfirst_3

Second place receives a signed copy of attorney Adam Freedman's newly released book, about the curious world of legalese, The Party of the First Part.



Rodrigo_2
Third place receives a a copy of the newly released novel about the misadventures of two former Camden cops-turned-lawyers, Death by Rodrigo.  It's written by a former federal prosecutor Ron Liebman.


For the
Best New York Blawger contest:


Billable_hour_2

First place receives choice of any single item sold by The Billable Hour (luxury watch line and sets excluded).  The Billable Hour, co-owned by husband and wife team Lisa Solomon and Mark Solomon, both of whom are attorneys, offers clever gifts and greeting cards for legal professionals.


Rodrigo

Second and third place winners receive a copy of the newly released novel about the misadventures of two former Camden cops-turned-lawyers, Death by Rodrigo.  It's written by a former federal prosecutor Ron Liebman.

So, get your nominations in for your favorite New York blawg and New York blawger.  Make sure to indicate whether your nomination is for Best Blawg (contest #1) or Best Blawger (contest #2). 

Remember, nominations will be accepted until midnight EST on October 18th!