THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION February 2011 www.nassaubar.org Vol. 60, No. 6

Follow us on facebook William F. Levine OF NOTE to be Medallion NCBA Member Benefit – I.D. Card Photo Obtain your photo for court identification Recipient cards at NCBA Tech Center. Cost $10. March 1, 2, & 3 • 9 a.m.-4 p.m. By Dede Unger William F. Levine will be honored as EVENTS the sixty-eighth recipient of the Associ- ation’s Distinguished Service Medallion, WE CARE Children’s Holiday Party to be presented at the One Hundred and Feb. 23, 2011 at Domus Twelfth Annual Dinner Dance on Saturday, May 7, 2011. The Distinguished Hon. Elaine Jackson Stack Moot Service Medallion is awarded to an indi- Court Competition vidual, either attorney or non-attorney, for March 22 & 23, 2011 at Domus service which has enhanced the reputa- tion and dignity of the legal profession. WE CARE “Dressed to a Tea” Leaders in the NCBA BOLD Initiative receive the 2011 NYS Bar Leaders Innovation Award at the NYS Bar Bill is being recognized for the time he has April 7, 2011 at Domus Association Annual Meeting at the Hilton in New York City: NCBA Past President A. Thomas Levin, given, and advice or assistance dispensed, See insert NCBA President Marc Gann, NCBA First Vice President Marian Rice, NCBA Director of Marketing and to any attorney in need. He is an ambas- PR Valerie Zurblis, NCBA President Elect Susan Katz Richman, NYSBA President Elect Vincent Doyle sador of the legal Law Day (back), NCBA Executive Director Deena Ehrlich; NYSCBL Chair Earamichia Brown, BOLD Co-Chairs profession. Thursday Evening, April 28, 2011 Linda Nanos and Howard Brill; NCBA Past President Emily Franchina, BOLD Task Force member A graduate of at Domus Elizabeth Pessala and NCBA Administrator, Community Relations and Public Education Caryle Katz. University of Penn- sylvania and the 112th Annual Dinner Dance Syracuse University Sat., May 7, 2011 School of Law, Mr. Long Island Marriott, Uniondale BOLD Levine was admitted Being has its rewards to practice in 1961. Dinner Dance Journal Ads After practicing with See insert several different tremendous job of using its members to By Valerie Zurblis firms, Bill became a better serve the public with legal services solo practitioner in Last month, NCBA officers, chairs and they need, but might not be aware of or William F. Levine 1971, trying plaintiff- WHAT’S INSIDE staff were presented with New York State’s know how to get. The Nassau County Bar s’ personal injury and malpractice cases. 2011 Bar Leaders Innovation Award, the members have shown genuine caring for The following year he partnered with FOCUS: IMMIGRATION LAW top award presented to bar associations in their community and in the process have Michael B. Grossman to create the firm New York State for its ground-breaking built bridges of assistance between the bar As The World Turns: Immigration with which he continues to practice today, BOLD Initiative. This is the second year in and public,” noted Earamichia Brown, Law in the Post-9/11 Era trying cases in all of the metropolitan area a row that NCBA has been recognized for chair of the NYS Conference of Bar Page 3 counties. He has been named as one of its innovation and leadership to enhance Leaders. “We are delighted to present the Criminal Law and Immigration: the public’s understanding of the law. Nassau County Bar Association with our See LEVINE, Page 10 Cross-Currents BOLD (Bridge Over Language Divides) Bar Leaders Innovation Award in recogni- Page 3 aims to service more effectively an increas- tion of its terrific new initiative.” ingly diverse public whose primary lan- BOLD’s enthusiastic Task Force is far Life Is But A DREAM and guage is other than English. In the past from resting on its past accomplishments, Anchors Away year, a Language Line was installed at the according to co-chairs Linda Nanos and Save the Page 5 Bar Association, demonstrations for the Howard Brill. On April 5 BOLD will again Date! NCBA May an ‘Undocumented Alien’ public of US Citizenship interviews were partner with the U.S. Citizenship & Recover Lost Wages? held, attorneys fluent in foreign languages Immigration Services to present a third DOMUS OPEN Page 9 were incorporated into the monthly Citizenship Interview Demonstration pro- Mortgage Foreclosure and Senior Citizen gram to help citizenship applicants pre- Immigration Laws - legal consultation clinics, and for the first pare for their own interview and citizen- Federal v. State Jurisdiction Page 9 time, foreign consuls were invited to ship exam. The Task Force is also following Mineola for a CLE seminar at Domus relat- up with foreign consuls to set up meetings Young Immigrants: Special Relief for ing to the arrest of foreign nationals. In addi- at the consulate offices to provide them the Most Vulnerable tion, BOLD was able to quickly mobilize with resources for legal information and Page 11 after the devastating earthquake in Haiti to guidance. offer seminars in Haitian Creole advising For the fall, the BOLD Task Force is June 13, 2011 Consequences in Criminal the public about Temporary Protected working to present a seminar for the many Proceedings of Foreign Consular Status. organizations, churches and community Eisenhower Notification, or Failure to Notify “With approximately 20 percent of groups that serve non-English speaking Page 11 “The Red” Nassau County residents speaking a lan- communities, to inform them of the multi- lingual services available through the Bar Legal Notice guage other than English, the Nassau Details coming soon! Association. E-Filing initiative in Westchester has County Bar Association has done a been enhanced and expanded Page 6 UPCOMING PUBLICATIONS COMMITTEE MEETINGS A View from the Bench Tues., Feb. 15 , 2011 ● Thurs., March 10, 2011 – 12:45 at Domus A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts, Part II The Lawyer Assistance Program provides confidential help to lawyers by Hon. Arthur D. Spatt Page 14 and judges for alcoholism, drug abuse and mental health problems. Call 1-888-408-6222. Calls are completely confidential. 2 ■ February 2011 ■ Nassau Lawyer


 
 
 

 

   

At U.S. Trust, our advisors bring more than just unique experience, global perspective and resourcefulness to wealth management. They take the time to listen and learn about you and your family before creating customized strategies to help ensure your needs, goals and best interests are adhered to every day. We invite you to speak to one of our advisors today about advancing your short-term goals, your legacy and your plans for the future.

All U.S. Trust® associates on Long Island are now located in the Melville office.

300 Broad Hollow Road, 4th Floor, West Wing Melville, New York 11747

For additional information, please contact:

Regina Carey Dorothy Doyle Richard G. Chalifoux, Esq. Senior Fiduciary Advisor Market Executive Senior Fiduciary Advisor 1.631.547.7751 1.631.547.7761 1.631.547.7629

ustrust.com

Investment products: Are Not FDIC Insured, Are Not Bank Guaranteed and May Lose Value. Investment products and services may be available through a relationship managed by U.S. Trust, Bank of America Private Wealth Management or through a relationship with Merrill Lynch, Pierce, Fenner & Smith Incorporated (MLPF&S). Certain U.S. Trust associates are registered representatives with MLPF&S and may assist you with investment products and services provided through MLPF&S and other nonbank investment affiliates. MLPF&S is a registered broker-dealer, Member SIPC, and a wholly owned subsidiary of Bank of America Corporation. U.S. Trust, Bank of America Private Wealth Management operates through Bank of America, N.A. and other subsidiaries of Bank of America Corporation. Bank of America, N.A., Member FDIC. © 2011 Bank of America Corporation. All rights reserved. Nassau Lawyer ■ February 2011 ■ 3 Immigration Law Focus As The World Turns: Immigration Law in the Post-9/11 Era

“As The World Turns.”1 It could be said that two contradictory statutory and regulatory corpus of nations imploded in 1991, U.S. Immigration Law faced important benchmarks in the development of contem- enlarged proportions. the challenge of regulating entry for massive new waves porary Immigration Law over the past two decades Throughout history, much like the Tax Code, of emigres. Earlier in the 1970s and 1980, the U.S. gover- have been the collapse of the Soviet Union2 and 9/11.3 Immigration Law has served as the second favorite gov- ment had some success with measures, such as the Without question, the demise of the Soviet Union has ernment tool for achieving prevailing “social Jackson-Vannick Amendment,7 but today that had a profound and lasting effect on U.S. Immigration architecture” goals. Aus tralia’s founding law is totally discredited and arguably Law policy and practice. penal colonies were Great Britain’s answer to repealed. But before perestroika even had a chance to finish its cleansing its soil of criminal elements that The main difference in the jurisprudential reshaping of the world’s map, perhaps to augur a new had begun to run amok in His Majesty’s back- philosophy of Immigration Law pre- and post- era of global peace and democracy, the U.S. suffered its yard. 9/11 was that, before the terrorist attacks, greatest terrorist attack on the morning of September For more than half a century, until 1991, immigration was viewed as a broad, culturally 11, 2001 (“9/11”). The reaction by our legal system to the Kremlin has openly used forced, criminal indexed regulatory lever for balancing on- 9/11 was massive. President George W. Bush migration, including expatriation, exile going U.S. interests vis-à-vis the presumed and the U.S. Congress were immediately into Siberia and forced death by contributions that potential immigrant groups forced to reassess how to protect our famine (“Holodomor”), not only could offer to our society. For example, the country from further attacks. to maximize control over its newly industrializing Northeast of the late Various laws, the foremost being closed police state, but to 19th century required cheap labor, so hundreds the Patriot Act,4 were passed on push Russian hegemony Andrij V.R. Szul of thousands of foreign factory and farm labor- a fast track, and a top to bot- over its vast occupied ers were admitted through Ellis Island. tom overhaul, still a work in Eastern and Central European Elsewhere the gold rushes and other opportunities arose progress at best, was begun of territories by genocidal counter- for Chinese and other nationalities willing to migrate to intelligence, military, other colonizing schemes. For example, northern California, mainly around San Francisco. government and civil defense in the late 1940’s, to accommo- After 9/11, however, Immigration Law has come to be operations. date the new Communist govern- viewed as a premier governmental mechanism for pro- Among the most affected ment in Poland, the U.S.S.R. tecting national security. Though the usual work visa cat- bureaucracies was the former forcibly resettled tens of thousands egories are still available, the overall new orientation is U.S. Immigration and Naturali- of ethnic Ukrainian families (the not to view immigrants as contributors, but as potential zation Service (INS), which was “Lemkos”) by tearing them out by unwanted elements, harboring secret, dangerously dis- split into two separate units their ancestral roots in the middle of ruptive or terroristic inclinations or in their motives for involving Immigration Law opera- the night from their homelands in crossing our borders. Such a scenario certainly illustrates tions, the U.S. Citizenship and Im- Communist-occupied Poland, and dropping the unfortunate maxim about “difficult cases making for migration Service (USCIS) and U.S. Immi- them into western Soviet Ukraine. Likewise, the even worse laws.” For example, the entire border securi- gration and Customs Enforcement (ICE).5 Russians condemned countless millions of Ukrainians ty dilemma has now come full circle as an integral factor And it was at this moment that U.S. Immigration from their native lands to the terminal gulags and arti- in the new Immigration ethos. For the past two decades, Law entered into a new, daring and controversial era. ficial industrial-mining death mills of the Siberian hin- border security, or the lack of it, has taken on a life of its Previously widely touted, though by many accounts terlands and the Urals. At the same time, the Kremlin own in legislative and social discourse, effectively over- unsuccessful and perhaps even counterproductive, assiduously, forcibly resettled millions of ethnic shadowing our vaunted historical inclinations to welcome attempts at Immigration Law reform,6 were dwarfed by Russians into the displaced Ukrainians’ homes, partic- people from abroad so they may acculturate on the way the changes in America’s post-9/11 legal landscape. ularly in the eastern areas around Kharkiv, the south- toward becoming productive members of our society. Immigration Law practitioners suddenly had to master ern Black Sea regions near Odesa, and the Crimea. Proponents of this traditional immigration orientation a new juridical world view, replete with a controversial, So when this cauldron of suffering, enslaved, captive See WORLD, Page 21 Criminal Law and Immigration: Cross-Currents At last, the interconnectivity between counsel, and therefore a “constitutional” resulted in varying degrees of success so defense attorney is to reduce, if not com- immigration law and criminal law has violation, as well as opening defense far.1 pletely avoid, penalty from the criminal gained the attention it has long counsel to a claim of ineffective assis- Some courts have held that the hold- justice process (imprisonment, fine, pro- deserved. Immigration practitioners tance of counsel. Futhermore, if a convic- ing of Padilla did not create a new rule of bation, etc.), the goal of immigration have for years encouraged criminal tion is vacated based on a constitutional criminal procedure; rather, it only clari- counsel in such a situation, to whatever defense attorneys to take more of an ground, it may no longer be used as a fied the Supreme Court’s long estab- extent possible, is to safeguard the indi- interest in their client’s immi- basis for removability under lished rule relating to ineffective assis- viduals’ immigration status, and the gration status when resolving the immigration laws. Prior to tance of counsel set forth in Strickland v. ability to continue living and working in their criminal law matters. this decision, if a criminal con- Washington, 466 U.S. 668 (1984). For the United States with their families. While many, if not most, viction formed the basis for an that reason, several courts have applied While these goals often intersect and criminal law practitioners individual’s removability, and Padilla retroactively and vacated crimi- converge, there are times when they do would properly consider the the conviction was vacated nal convictions.2 not. For example, a criminal defendant immigration consequences of a solely to prevent deportation However, as indicated in getting “a good deal” or “no jail time”, criminal conviction on a client’s or on other collateral grounds, People v. Ramirez,3 even if effectively, is irrelevant if ultimately immigration status and advise the conviction would remain a court finds that Padilla the individual is deported after the them accordingly, the unfortu- for immigration purposes and does apply retroactively, sentence is served. nate truth is that some would could be used as a ground of success is not guaran- For example, pleading to a partic- routinely ignore the issue or deportability. teed. In Ramirez, the ular statute resulting in 15 or 30 provide grossly inadequate or While, the full, far-reaching Court, applying Padilla in days of incarceration, may, in inaccurate advice – often times Michael Kohler effect of this decision has yet reviewing the facts contained fact, be far more with devastating conse- to be determined, it has pro- in the record, held that the defen- desirable than quences. Recently, the U.S. Supreme vided the basis for immigration and dant failed to establish that he accepting a plea Court issued a wake-up call to the crimi- criminal counsels to work together to received ineffective assistance of under some nal defense bar: you ignore the immigra- attack previous convictions on the basis counsel. other statute tion consequences of your client’s crimi- of ineffective assistance by prior criminal The success rate concerning the resulting in no nal conviction at your own peril. counsel. Resulting motions to vacate, vacating of past convictions, under jail time, but Padilla v. Kentucky, explicitly held, pursuant to NY Criminal Procedure Law Padilla is impossible to quantify at this leading to deporta- “that advice regarding deportation is not §440.10 rely on the contention that their point. It does appear that Padilla will tion. While this may categorically removed from the ambit of clients failed to receive the proper advice encourage criminal defense attorneys to seem like an oversimplification, such the Sixth Amendment right to counsel.” that they critically needed to make a recognize the underlying potential nega- strategic scenarios do emerge not uncom- This holding is particularly significant decision regarding a guilty plea and, con- tive immigration consequences con- monly in real life Criminal Law practice because it clearly states that the failure sequently, their immigration status and fronting their clients, and, to proactively and most such situations are highly fact to provide proper advice is a violation of ability to remain in the United States seek to ameliorate them. driven. a defendant’s Sixth Amendment right to was in jeopardy. Such motions have While a main objective of a criminal See CROSS-CURRENTS, Page 16 4 ■ February 2011 ■ Nassau Lawyer What Domus Does For You! Nassau We often talk of the ways in which membership in, and par- other type of matter; and that this requirement was a “slippery ticipation in, the activities of this Association is of value to you as slope” for attorneys in such other types of matters. Our current Lawyer a member. Sometimes that concept is amorphous in that it criminal and disciplinary rules provide sufficient sanctions for involves networking opportunities or notoriety through publica- attorneys who engage in inappropriate or fraudulent conduct. The Official Publication of the tion or lectures. But the leadership of the Association has recent- Our Board of Directors supported the position of the Task Force Nassau County Bar Association ly addressed two very different issues that demonstrate what opposing Judge Lippman’s rules and so notified the Chief Judge 15th & West Streets Domus does for you. and the New York State Bar Association. To my Mineola, N.Y. 11501 As you all are aware, the mortgage foreclosure knowledge our Association is the first to have taken Phone: (516) 747-4070 Fax: (516) 747-4147 issue on Long Island and beyond has reached critical such a thoughtful articulated position. It is reflective www.nassaubar.org mass. In an effort to address some of the foreclosure of our principle of standing up for the rights of E-mail: [email protected] issues, Judge Lippman imposed rules on attorneys in lawyers. Thank you Doug and the members of the pursing foreclosures that essentially places a burden Task Force. (A complete copy of the report is available President on the attorney to affirm the allegations underlying at www.nassaubar.org.) Marc C. Gann, Esq. the foreclosure. While his intentions were admirable, Second, our Board of Directors authorized the President-Elect the means of accomplishing them appears to be mis- Association to implement a new, creative and excit- Susan Katz Richman, Esq. guided. Fortunately, the Association has members ing way of obtaining CLE credit. Through a Task First Vice President who recognize these issues and volunteer to offer Force headed by Judge Andrew Engel, Dean of the Marian C. Rice, Esq. solutions. Nassau Academy of Law, we engaged in an evalua- Second Vice President Past President Doug Good immediately saw that tion of our dues structure and the Academy of Law. Peter J. Mancuso, Esq. Judge Lippman’s “remedy” for “robosigners” raised From the I am pleased to announce that based on the work of Treasurer issues for all lawyers: that the affirmation require- that Task Force and with the approval of the Board John P. McEntee, Esq. ment is a lawyer issue and not a foreclosure issue. President of Directors, this year we will be offering an exciting Secretary Doug immediately volunteered to chair a Task Force new CLE opportunity for members only! This will be Hon. John L. Kase to evaluate and suggest redress to the rules. We an offer too good to pass up! Details will be Executive Director enlisted the aid of lawyers on both sides of foreclo- Marc C. Gann announced shortly, but to my knowledge, this type of Deena R. Ehrlich, Ph.D. sure matters including Past Presidents Peter Levy and Lance program will be a first for any bar association. Look for more Managing Editors Clarke, Gale Berg of NCBA probono services and Jordan Katz, a information in the weeks and months to come. But thank you to Nancy E. Gianakos, Esq. lender’s attorney. This Task Force worked quickly and diligently Judge Engel and his Task Force for envisioning such a bold and Gail Jacobs, Esq. is assessing Judge Lippman’s rules and suggesting alternatives. creative idea. Editor/Production Manager Suffice it to say that this Task Force recognized that all attorneys It is clear that we have the best of the best in this Association Mindy SantaMaria were potentially being penalized by the affirmation requirement in our members and staff. They are never satisfied, always trying Associate Managing Editor in that a burden and sanctions were being imposed on attorneys to improve what we do and the way in which we do it. But we Deanne M. Caputo, Esq. in foreclosure matters that is not imposed on lawyers in any always do it for you! Assistant Editor Valerie Zurblis Photographer Hector Herrera

Try out your trial talents at NAL’s Trial Skills Workshop series Focus Editor of the Month practice what they have learned in small spread out over the next 5 months to Andrij V.R. Szul Esq. By Hon. Andrew M. Engel Immigration Law Do you want to become a trial attor- workshop groups, followed by immediate June. Upon completion of the program, ney? Are you eager to get up on your feet, constructive critique from experienced participants will receive 16 CLE credits in Upcoming 2011 Focus Issues address a jury, examine and cross-exam- and skilled litigators. skills and professional practice as well as March – The Internet ine witnesses, but have not yet had the This program is open to all attorneys, a Certificate of Completion from the April – General Interest/OCA Issue opportunity? Are you an experienced trial from the more seasoned litigator who Nassau Academy of Law. May – Matrimonial & Family Law attorney who would like to sharpen your wants to spruce up his or her skills to the The tuition for “Try It!” is $300 for June – Criminal Law attorney who has never stepped foot into members and $400 for non-members, July/August – Real Estate Law, Bankruptcy skills, or pick up practice tips that will Law, Foreclosure & Debtor/Creditor make you even more effective? If so, you court to argue a case in front of a judge which includes dinner at each of the and jury. While the workshops are based six sessions. There will be no per-session now have the golden opportunity to “Try Committee Editors It!” upon a “case file” for an automobile colli- fee. To register, use the NAL Order sion, the techniques and skills learned, as Form on page 13 or enroll online at Committee Editors For the first time, the Nassau Academy Suzanne Avena, Esq. of Law is offering “Try It!”, an extensive well as the opportunity to get up on your www.nassaubar.org. For more information Deborah S. Barcham, Esq. hands-on trial skills lecture and workshop feet and practice, will be of invaluable contact Barbara Kraut at the Nassau David Blansky, Esq. series designed to assist attorneys who benefit to any attorney trying any type of Academy of Law, 516-747-4464 or Richard D. Collins, Esq. want to learn or improve effective trial case, be it criminal, civil, commercial, mat- [email protected]. Christopher J. DelliCarpini, Esq. rimonial, jury, non-jury, etc. Either way, do not miss your opportuni- Nicole Di Girolamo, Esq. skills and trial advocacy from jury selec- James Fiorillo, Esq. tion through summation from some of the The “Try It!” workshops will be held at ty to “Try It!” the Nassau County Bar Association in six Avrohom Gefen, Esq. top personal injury litigators in New York Hon. Andrew M. Engel is Dean, of the Nassau 3-hour evening sessions 5:30-8:30 p.m. Charles E. Holster III, Esq. State. Participants will have the chance to Academy of Law George M. Kaplan, Esq. Martha Krisel, Esq. Kenneth J. Landau, Esq. brief opening statement. Again, each participant will be pro- Douglas M. Lieberman, Esq. ‘TRY IT!’ YOU’LL LIKE IT! vided with constructive commentary on their performance. Bret L. Mercuris, Esq. The students will then hear a lecture from Marvin Salenger, Lisa M. Petrocelli, Esq. Session I, Wednesday, February 16 Esq. from the firm of Salenger, Sack, Schwartz & Kimmel on Lisa Ross, Esq. Participants will be given a “case file” involving a two car Daniel W. Russo, Esq. proper direct examination and from Ben B. Rubinowitz, Esq. Shobhna Saini, Esq. head-on collision, complete with pleadings, bill of particulars, from the firm of Gair, Gair, Conason, Steigman, Mackauf, Laura M. Schaefer, Esq. EBT transcripts, police investigative reports, private inves- Bloom & Rubinowitz on effective cross-examination. Meryl D. Serotta, Esq. tigative reports and photographs, which will serve as the foun- Rita Sethi, Esq. dation for this program. Seasoned trial attorney Jeffrey S. Session IV, Wednesday, April 27 Wendy Sheinberg, Esq. Lisabeth, Esq., from the offices of Jeffrey S. Lisabeth, will This will be a workshop session wherein some participants Allison Shields, Esq. speak on effective jury selection. will conduct the direct examination of a witness and some will Stephen C. Silverberg, Esq. conduct the cross-examination of that witness. At the conclu- Andrij V.R. Szul, Esq. Session II, Wednesday March 16 sion, the instructor will provide commentary. Howard Wexler, Esq. Students will be divided into groups of 5-10 and each take Chris Wittstruck, Esq. a turn conducting a jury selection for the liability phase of a Session V, Wednesday, May 18 trial involving the facts in the case file. Each group will be Workshop participants will switch roles and try direct and Published by Long Island Business News supervised by an experienced trial attorney who will offer cross examinations of the witness, followed by commentary (631) 737-1700; Fax: (631) 737-1890 comments to each participant on their performance. At the from the instructor. Then Robert G. Sullivan, Esq., from the Publisher conclusion of the workshop the participants will hear a lecture John L. Kominicki office of Sullivan, Papain, Block, McGrath & Cannavo, P.C., Associate Publisher from David Dean, Esq., from the office of Sullivan, Papain, will speak on persuasive summations. Kathleen Gobos Block, McGrath & Cannavo, P.C., on how to prepare and deliv- Graphic Artist er an opening statement. Session VI, Wednesday, June 15 Nancy Wright The last workshop allows each student to deliver a sum- Nassau Lawyer (USPS No. 007-505) is published Session III, Monday, April 4 mation based upon the case file, to be followed by the instruc- monthly, except combined issue of July and August, Workshop group participants will take turns delivering a tor’s critique. by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779-7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, NY 11501 and at additional entries. Contents copyright ©2011. The Nassau Lawyer welcomes articles that are written by the members of the Nassau County Bar Association, which would be of interest to New York State lawyers. Postmaster: Send address changes to the Nassau Views expressed in published articles or letters are those of the authors’ alone and are not to be attributed to the Nassau Lawyer, its editors, or NCBA, unless County Bar Association, 15th and West Streets, expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations. Mineola, NY 11501. Nassau Lawyer ■ February 2011 ■ 5 Immigration Law Focus Life is But a DREAM and Anchors Away

Many of us remember the always confused character vide an anchor into the U.S. to its undocumented parent. Emily Litella, played by Gilda Radner on Saturday The Immigration and Nationality Act of 1965, which Night Live in the 1970’s. A skit today might go some- amended Title 8 of the U.S. Code, requires that a U.S. cit- thing like this: izen child must be twenty-one years of age to sponsor a “What’s all this fuss about people talking about angry parent. Even if an adult son or daughter desires to spon- babies and the dream act? Why are babies angry these sor a parent, the parent who entered the country with- days and who doesn’t like dreams?” out inspection by immigration doesn’t qualify for resi- “Hold on, Emily. They’re talking about immigration dence due to the unlawful entry or presence in the U.S. issues – Anchor Babies, born in the U.S. to for- The only time a U.S. citizen child could eign nationals, and The DREAM Act, a bill in serve as an “anchor” is when the foreign Congress.”1 national is facing removal from the U.S. and “Oh. Never mind!” has 10 years of good moral conduct prior to Currently there are two vulnerable groups commencement of proceedings. Rather than in the immigration spotlight: babies born in trying to repeal the 14th Amendment to elim- this country to undocumented foreign nation- inate birthright citizenship, it is proposed makes no sense to provide educational opportunities to als who are citizens by birthright (so-called that several states will offer children of youth and then deny them the ability to move forward “Anchor Babies”)2 and youth who arrived here undocumented foreign nationals a differenti- with their futures because of their lack of legal standing. as minors and have been educated in our sys- ated birth certificate and will undoubtedly be Without legal immigration documents they cannot have tem but lack legal immigration status. The challenged in the court. a Social Security number or driver’s license and they commonality of the two is that their status, or While laws are being drafted to prevent cannot join the military. lack thereof, was determined by the acts of children born in the U.S. – to undocumented The House Bill, H.R. 6497, underwent numerous their parents. Linda G. Nanos foreign nationals – from becoming U.S. citi- amendments and, ultimately, succeeded in passing. The In the case of babies born in the United zens, another law, the DREAM Act, has been Senate agreed to consider the House bill rather than its States, the law has been settled since the passage of the repeatedly presented in Congress since 2001 to give own version of the DREAM Act, S. 3992. One important 14th Amendment in 1868 that citizenship is a legal status to undocumented youth. The premise of the point in favor of the Act was to make conditional status birthright: “All persons born or naturalized in the DREAM Act is to offer a legal status to undocumented be for 10 years before a permanent resident status could United States and subject to the jurisdiction thereof, are youth educated in our school system who are hampered be attained. The Immigration and National ity Act citizens of the United States and of the State wherein in their development by their lack of legal immigration requires five years of permanent residence, with excep- they reside.” The 14th Amendment overthrew the status. It is estimated that approximately 65,000 undoc- tions, to be eligible for U.S. citizenship. Postponing per- Supreme Court’s decision in Dred Scott v. Sandford, 60 umented students graduate from high school each year. manent status and eventual citizenship may thwart a U.S. 393 (1856), which had denied citizenship to children The proposed law provides for a conditional status to snowball effect of DREAM Act beneficiaries’ sponsorship of slaves born in this country. One hundred and fifty those who arrived in the U.S. before age 16, lived in the of family members. As with the Anchor Baby debate years later, there is a movement to take away citizenship U.S. for five years, and graduate high school (including (also referred to as “chain migration”), immigration rights of the offspring of another disenfranchised group through a GED program). The right of children to restrictionists appear to fear a geometric progression of residing in this country, the expanding undocumented receive a public education, regardless of immigration immigration expansion. population. status, has been upheld by the Supreme Court, in Plyler A study by the Congressional Budget Office deter- “Anchor Baby” implies that a baby born here can v. Doe, 457 U.S. 207 (1982).3 mined the DREAM Act would result in billions of anchor its parents to the U.S. In fact, a baby cannot pro- One argument in favor of the DREAM Act is that it See DREAM, Page 16 6 ■ February 2011 ■ Nassau Lawyer Surrogate Judge McCarty Join us on Saturday, May 7, 2011 at our 112th Annual Dinner Dance Chosen for ASTAR Program Nassau Surrogate Judge Edward entific cases and other forensic applica- McCarty has been designated by the U.S. tions. The instructional phases of the pro- Department of Justice as an Advance gram will take place at the National On the occasion of the 112th Dinner Dance of Science and Technology Resource Institute of Health, Johns Hopkins the Association, we take pride in honoring (ASTAR). The ASTAR resource judge pro- School of Medicine, the Ohio State School gram is an effort to enhance the capaci- of Medicine, St. Louis University Law ninety members who are celebrating the ties of the courts to resolve complex cases School and the John Marshall School of 50, 60 & 70 year anniversary of their involving intricate or novel scientific and Law in Chicago. technical evidence. It operates by train- Judge McCarty is particularly well admission to the Bar. Please join us in ing selected judges to retain an under- suited for this program. He holds two cer- standing of the terms of the scientific tificates from the New York University celebrating with them on methodology underlying evidentiary School of Post Graduate Medicine in Saturday, May 7, 2011. proffers. Forensic Science. He was mentored by Selected judges for the program are the late Nassau County Medical required to focus on: (1) brain mapping of Examiner Leslie Lukash in advanced the violent criminal psycho-path; (2) technologies in forensic medicine. During Honoring our genetic medicine and discrimination; (3) that period of time he participated in over civil justice proceedings involving energy 1000 autopsies. As a Nassau County Distinguished Service Medallion Recipient sciences and climate changing technolo- Assistant District Attorney he coordinat- William F. Levine, Esq. gies; (4) health related cases involving ed all investigations into the quality of comparative environmental crime detec- medical care when such questions were tion; and (5) genetic engineering of agri- brought to the attention of the District cultural crops. Judicial determination of Attorney. Judge McCarty also investigat- and our underlying scientific methodology and ed allegations of mass murderers as an technical authenticity is a common Army Reserve Colonel during Operation denominator for the course. Desert Storm. As a New York State 50, 60 & 70 year Practitioners. Participating judges will experience a Supreme Court Justice he specialized in fulsome, 120 hour program over a term of complex medical malpractice litigation approximately 18 months. This robust and teaches a course in medical malprac- educational experience will open new tice at the Hofstra Law School. When the doors for evidence management for trial ASTAR course is completed, Justice judges. The course will consist of general McCarty will become a resource to share training in scientific methodology, cutting his latest scientific knowledge with edge biological evidence, high profile sci- judges, lawyers and law students. $190 per person Long Island Marriott Uniondale, New York NCBA talent takes to For more information call 747-4070 x. 226 or 210 the stage at Hofstra You’ve seen their talent in the court room, and now they’ve taken their tal- ents to a new stage. In January, NCBA members performed in Hofstra Enter- Does your accountant tainment’s production of “Night of January 16th”, a murder trial drama that involved jurors from the audience understand Law Firms? determining the final verdict. Each show was followed by legal commentary and discussion directed by NCBA attorneys. NCBA’s legal thespians are (from l.) We do. NCBA President Marc C. Gann, Hon. Dana F. Winslow (seated), NCBA Past President Joe Ryan and Jim Bradley, Esq.

Law firms are unique. At Rynkar, Vail & Barrett, we speak your language. Please Note …

For over 60 years, we have been the accountants of choice for many fine law firms. E-Filing initiative in Westchester

In addition to providing sophisticated, professional services to the law firm, has been Enhanced and Expanded we help law firms provide broader and deeper services to their Trusts and In accordance with the enabling legis- is available 24/7, every day of the year. Estates clients, such as: lation signed into law by Governor While many attorneys may already be Paterson on September 17, 2010, imple- familiar with the benefits of electronic • Fiduciary Accountings If you would like to discuss your mentation of the E-Filing initiative is as filing from a similar system in the feder- • Estate Planning Support law firm’s accounting needs or follows: al courts, others may not be award of E- • Estate Tax Projections explore how we can work in • E-Filing is now available on a vol- Filing’s ease and efficiency. The 9th untary basis for the commencement of Judicial District and the Westchester • Fiduciary Income Tax Planning collaboration to better serve your tort case. County Clerk’s office offer free training & Return Preparation firm’s Trusts & Estates clients, call • Beginning February 1, 2011, E-Filing sessions, with CLE, to assist the bar. For • Estate & Gift Tax Return Robert D. Rynkar, Managing will be mandatory with respect to cases more information, please go to: Preparation or Review Partner at (516) 747-0110 or email commenced in the commercial division. http://www.courts.sate.ny.us/courts/ • On March 1, 2011, E-Filings will be • Estate, Gift & Income Tax Audit [email protected]. 9jd/index.shtml mandatory with respect to the com- www.nycourts.gov/efile Representation mencement of tort cases. • On or about June 1, 2011, E-Filing http://westchesterclerk.com will be mandatory with respect to the We are confident that the implemen- commencement of other case types, tation of the New York State Courts including commercial claims that do not E-Filing program (NYSCEF) here in meet the criteria for inclusion in the Westchester will prove to be a significant LLP commercial division. advantage and source of support for the E-Filing is a faster, less expensive and practice of law, not only for Westchester “green” way to file and receive court doc- based firms and solo practitioners, but 22 Jericho Turnpike, Mineola, NY 11501 516-747-0110 [email protected] uments, conveniently from any place in for all who practice in Westchester the world with an internet connection. It Supreme Court. Nassau Lawyer ■ February 2011 ■ 7 JUDGE PATRICK A. SWEENEY JOINS NAM’S NEW YORK METRO PANEL

HONORABLE PATRICK A. SWEENEY Former Acting Justice of the Supreme Court, Suffolk County Specialties include: personal injury, medical malpractice, property damage, insurance coverage, professional liability, commercial and municipal law NAM

NATIONAL ARBITRATION AND MEDIATION THE BETTER SOLUTION 990 Stewart Avenue, First Floor, Garden City, New York 11530 (800) 358-2550 | Additional Locations: Manhattan, Brooklyn, Westchester & Buffalo | www.namadr.com 8 ■ February 2011 ■ Nassau Lawyer

IN BRIEF

Member Activities rules and regulations affecting real estate brokers and other individuals in Terence E. Smolev, a partner at the order to administer and effectuate the Uniondale-based law firm of Forchelli, purposes of Article 12-A of the Real Curto, Deegan, Schwartz, Mineo, Cohn Property Law. Mr. Leno is also a member & Terrana, LLP, has been appointed to of the IDA & Municipal Incentives and the Dean’s Advisory Council of the Environ mental practice groups at the American University – Washington firm. In 2007, he was named as one of College of Law, located in Washington Long Island’s “Top 40 Under 40” by Long D.C. Comprised of business and commu- Island Business News. Mr. Leno is also a nity leaders from across the frequent lecturer, in cluding region, the Dean’s Advisory CLE presentations and pro- Council provides a collabora- grams, and a Trustee of the tive forum and resource for the Old Westbury College Dean to seek advice from Foundation and a President’s Advisory Council members on Council Member of Big issues critical to the growth Brothers Big Sisters of Long and success of the law school. Island. David N. Wechlser, a James C. Ricca, a Bank - partner in the Garden City ing and Finance Partner at law firm of Moritt Hock & Forchelli, Curto, Deegan, Hamroff LLP, was recently Schwartz, Mineo, Cohn & elected to serve on the Board Terrana LLP, was recently of Directors of the United Way Hon. Stephen L. selected as a “Fifty Around of Long Island, a nonprofit Ukeiley Fifty” leader by Long Island organization managed by an Business News. The recipi- independent volunteer board ents of the award were select- of directors. ed based upon demonstrated leader- David P. Leno, a member of the Real ship in business, mentoring skills, and Estate Department and chair of the commitment to the community. Mr. Zoning & Land Use practice group at Ricca concentrates his practice in the Ruskin Moscou Faltischek, P.C., has areas of banking and finance law, fore- been named a member of the New York closures, creditor’s rights, trusts and State Board of Real Estate. The Board of estates, corporate law and real estate Real Estate consists of 15 members and has general authority to promulgate See IN BRIEF, Page 15 Nassau Lawyer ■ February 2011 ■ 9 Immigration Law Focus May an ‘Undocumented Alien’ Recover Lost Wages?

An undocumented alien is hired by a legally entitled to work? employer can be subject both civil and The Balbuena Court4 faced a situation company. He climbs up a dangerous and Pursuant to the Immigration Reform criminal penalties.2 An employee who where an undocumented alien was defective ladder fifteen feet above the and Control Act of 1986, an employer is submits false or fraudulent doc- injured while working at a con- ground with a heavy sack over his shoul- obligated to take the appropriate steps uments is likewise subject to struction site. In its decision, der. The ladder tips and tosses the when hiring workers to ensure that the criminal prosecution.3 the Court recognized that the employee to the ground where he sustains worker has the right to work in this coun- New York Courts have power to regulate immigration serious injuries. Are there any remedies try.1 The statute requires that every drawn a sharp distinction rests with the federal govern- available for him? The answer is that it employer, before hiring any person, verify between the rights of a person ment, and reviewed the rele- depends. that the person is authorized to work in who submits false or fraudulent vant immigration laws, their Another undocumented alien is hired the United States. The employer has the documents and a person who is evolution over time, and the by the same company and is fired for get- burden to examine specified documents merely not required to submit policy considerations underly- ting involved in organizing a union in the that confirm the person’s identity and eli- any documentation. As will be ing those laws, noting the workplace. Can that employee recover lost gibility for employment in the United seen later, an undocumented increase in aliens entering wages? Once again, the answer is that it States. The employer is also responsible to alien who submits false docu- United States illegally. The depends. properly complete Form I-9, which is evi- mentation in order to get a job Immigration and Nationality Should undocumented aliens have the dence of that examination. Form I-9 must will likely be viewed as having David Gabor Act (INA) was created in 1952 same rights under the employment laws be maintained by the employer for three committed a criminal act and as a comprehensive federal as documented aliens and citizens? (3) years after the employee is hired or for will likely have less rights and remedies scheme for the regulation of immigration Should employers be obligated to fol- one (1) year after the employee leaves the as compared to an undocumented alien and naturalization.5 In 1986, Congress low applicable laws, rules and regulations company, whichever period is longer. If the who was hired by an employer who did enacted the Immigration Reform and regardless of whether the employee is employer fails to verify eligibility, that not complete an I-9 Form. See LOST WAGES, Page 20 Immigration Laws – Federal v. State Jurisdiction The ball is in whose ‘court’? islation. This split is most pronounced in 1. Whether LAWA is invalid because it Most likely the Court will also cases decided by the Ninth and Third violates IRCA’s preemption clause, address the question of whether the fed- Due in large measure to the percep- Circuits. By virtue of another piece of 2. Whether the state requirement of eral government’s failure to enact com- tion, whether valid or not, that the feder- legislation entitled the Legal Arizona employers to use the E-Verify employ- prehensive immigration reform justifies al government has failed in its attempt Workers Act (LAWA), Arizona imposes ment system is preempted by federal law state action in Immigration Laws. to enforce immigration laws and enact penalties on employers who have hired which makes the use of E-Verify volun- The Petitioners were represented by comprehensive immigration reform, or employ undocumented or unautho- tary and, Carter G. Phillips, Esq. who attempted to many states have taken it upon them- rized to work as foreign nationals. 3. Whether the Arizona statute is pre- persuade the Court that issues surround- selves to pass their own legislation in the However, under the federal governments empted because it dilutes Congress’ ing employment authorization are under immigration arena. This article will dis- Immigration Reform And Control Act “comprehensive scheme” to regulate the the exclusive purview of the federal cuss the proliferation of state immigra- (IRCA), state and local governments are employment of foreign nationals. See JURISDICTION, Page 19 tion related legislation and address the expressly preempted from imposing civil various litigation brought by organiza- or criminal sanctions on employers who tions as well as the federal gov- hire unauthorized workers; ernment against states that with one exception: a savings Move Toward Your Goal have enacted this legislation. clause that permits state The federal government has sanctions on employers in vio- With A Smarter Tax Strategy historically been the principal lation of licensing or similar authority with respect to U.S. laws. Immigration laws, rules, regu- The Ninth Circuit in lations and policies. The courts Chicanos Por La Causa held have traditionally upheld the that state employer compli- exclusive jurisdiction of the fed- ance laws such as LAWA are eral government concerning permitted if related to a immigration matters. In Hines state’s ability and power to v. Davidowitz,1 the Court grant or revoke business upheld the premise that state Howard Brill licenses and approvals. In attempts to enact immigration 2008, the Ninth Circuit related legislation were preempted upheld the LAWA since, as the Court under the Supremacy Clause of the U.S. reasoned, it was within IRCA’s “Savings Consti tution. In Toll v. Moreno,2 the Clause.” This decision is now on appeal to Court again enunciated its position that the U.S. Supreme Court. the federal government is the principal However, in Lozano v. Hazelton,5 the authority over U.S. Immigration law and Third Circuit held that, even where a policy. However, the Ninth Circuit in state law is related to a business license Chicanos Por La Causa v. Napolitano3 issue, such laws are preempted because held that not every state related immi- they conflict with IRCA and Congress’ Move your team toward greater profitability. Work on your tax strategy with a partner attempt to create a uniform system of gration law is preempted by federal law you can trust: A leading certified public accounting, financial and management especially in the area of state regulated employment compliance laws and regu- consulting firm that combines world class skills with a tradition of personal service and licenses and businesses. lations. In Lozano, a local Pennsylvania integrity. Israeloff Trattner & Co. strives to optimize your financial performance with a In April, 2010, the Arizona State ordinance rendered it unlawful for any Senate enacted the Support Our Law business to “recruit, hire for employment team of dedicated professionals who can provide the ideal solution to improve your Enforcement And Safe Neighborhoods or continue to employ” unauthorized financial position. Isn't it time you made Israeloff, Trattner & Co. part of your team? Act (S.1070). With this Act, the Arizona workers in the city of Hazelton. The DOMESTIC & INTERNATIONAL TAX PLANNING & COMPLIANCE legislature sought to criminalize undocu- Third Circuit found this ordinance to be mented foreign nationals in Arizona and preempted by IRCA because it stood as ACCOUNTING & AUDITING • MANAGEMENT CONSULTING provide local law enforcement with broad an impediment to the purpose and exe- FORENSIC ACCOUNTING, FRAUD ENGAGEMENTS & EXPERT TESTIMONY authority to detain, question and check cution of IRCA. BUSINESS, PROFESSIONAL PRACTICE & LICENSE VALUATIONS immigration status of individuals where It is against this backdrop and split ROYALTY AUDITS • FINANCIAL & ESTATE PLANNING there was “reasonable suspicion” that the among the Circuits that the U.S. MERGER & ACQUISITION CONSULTING • CPE, CLE & PEER REVIEW suspected person was undocumented Supreme Court granted certiorari in TECHNOLOGY, HUMAN RESOURCES & MARKETING CONSULTING and residing/working in Arizona illegally Chamber of Commerce v. Whiting.6 Oral and without proper immigration status. arguments were heard on December 8, This legislation led to such a public out- 2010. rage that the federal government filed a It is anticipated that the Court will challenge in U.S. v. Arizona.4 address the issue of whether LAWA There is currently a split in the is preempted by IRCA. Essentially, the 350 Fifth Avenue, New York, NY 10118 1225 Franklin Avenue, Garden City, NY 11530 Circuits regarding the issue of whether U.S. Supreme Court will address three 212.239.3300 516.240.3300 states can enact immigration related leg- questions: Visit us on the web at www.israeloff.com 10 ■ February 2011 ■ Nassau Lawyer

LEVINE ... Continued From Page 1 PRO BONO ATTORNEY OF THE MONTH New York’s “Super Lawyers,” and is a Past President of this Association. Though Mr. Levine has been trial counsel in thousands of cases during his years with Levine & Grossman, two cases in particular stand out. During the Agent Orange litigation, Levine & Grossman was one of several law firms By RHODA SELVIN John P. Reali that originally banded together in sup- port of Vietnam War veterans who developed illnesses following exposure John P. Reali has always made room in his professional College in 1957, graduated from St. John’s University Law to the herbicide Agent Orange. The sec- life for the indigent citizens of Nassau County who need pro School and was admitted to the New York State Bar in 1961. ond, a Right to Die case in which the bono representation. Because he has long been a devoted 2011 is a special anniversary year in his career; he will be firm was retained by the brothers and participant in the Landlord/Tenant Attorney of the Day among the 50-year veterans of the bar to be honored at priests of the Chaminade School, ulti- Project, the Volunteer Lawyers Project has named him Pro NCBA’s annual dinner dance. The May dinner dance will mately set forth the standard by which Bono Attorney of the Month for February 2011. give Mr. Reali a chance to pursue one of his favorite activi- people (who are in a comatose state) This is not the first time that Mr. Reali has been honored ties. He loves to dance! who do not wish to be kept alive artifi- for his pro bono work. He was previously Pro Bono Attorney A member of NCBA and NYSBA, Mr. Reali serves on the cially could use the courts to enforce of the Month in 1994 (when he also received the Pro Bono Elder Law and Real Estate Committees of both organiza- their wishes. Attorney of the Year Award from the New York State Bar tions and the NCBA Military Law Committee. For many The Annual Dinner Dance is the Association) and October 2002. Since the latter date he has years he has been part of NCBA’s mentoring program and crowning event of the “social calendar” continued to spend a day in the Landlord/Tenant Part of the has been the mentor coordinator for the Jericho Middle of the Nassau County Bar Association, District Court every two or three months, amassing over School for 10 years. He served on the Board of Directors of and this year will be held at the Long 120 hours in 67 cases. the Nassau/Suffolk Law Services Committee for 12 years, Island Marriott, Uniondale, New York, The Landlord Tenant Project’s early life came to an end ending in 2006. Now in his sixth term as Village Justice in on Saturday, May 7, 2011. In addition to in 1997, when VLP lost funding. It was revived with the the Sea Cliff Village Court, he is a member (and Past the Distinguished Service Medallion, help of NCBA’s Senior Attorneys Committee in 2000, President) of the Nassau County Magistrates Association as those of our members who have been when funding was restored. Mr. Reali, who has served in well as the American Justinian Society of Jurists and the admitted to the Bar for fifty, sixty and both incarnations, pointed out that nowadays there are Columbian Lawyers Association of Nassau County (which seventy years will be honored as well. many more attorneys on the panel, among them retired in 2006 awarded him the Frank J. Santagata Memorial Please join our celebration. For more attorneys who come to court almost every day. Whereas in Award for Exemplary Ethics, Professionalism, Love of the information or to offer congratulations the past the District Court judges rotated the assignment, Law, and Devotion to Justice for All). A general practitioner or greetings in the Dinner Dance now one judge presides in the Landlord/Tenant Part most in Jericho, he has had the same secretary for 31 years. Since Journal, contact Dede Unger or Mindy of the time. The judge’s familiarity with the process and 1995 she has also been his wife. SantaMaria at (516) 747-4070, or email appreciation of the volunteers, Mr. Reali said, result in John and Doreen Reali have eight grandchildren. [email protected]. greater cooperation from the court and, along with the John P. Reali’s long and effective work with indigent large cohort of volunteers, allow the Project to handle a clients makes him a most deserving Pro Bono Attorney of Dede Unger is a Special Events Coordinator at greater load. the Month. The Volunteer Lawyers Project is proud to con- the Nassau County Bar Association. She also acts as Manager of Member Services for the Mr. Reali, who earned his bachelor’s degree from Queens fer this honor on him for the third time. Association.

Appellate Counsel

Charles E. Holster lll

www.nyappealsattorney.com (516) 747-2330 100 East Old Country Road, Mineola, NY 11501 Nassau Lawyer ■ February 2011 ■ 11 Immigration Law Focus Young Immigrants: Special Relief for the Most Vulnerable

One of the most vulnerable segments of society is The William Wilberforce Trafficking Victims Protec- relief because of some likelihood of becoming a public undocumented, abused children removed from the tion Reauthorization Act of 20082 contains the proce- charge, lack of valid immigration documents, fraud home and placed in the care and custody of the State. dures for SIJS relief. Its eligibility requirements are a or misrepresentation. Many have been the targets of gang violence follows: In order to qualify for SIJS, the child must be under or exploitation by organized crime. In addi- 1. The foreign-born child must be declared the age of 21 at the time of filing, unmarried and pres- tion to the threat of arrest, detention, and dependent in a juvenile court located in the ent (domiciled) in the United States. No child can be deportation, undocumented minors are U.S. and placed under the custody of an denied SIJS because of age as long as s/he was a child unable to obtain lawful employment and/or agency or department of a state, an individ- (under age 21) when s/he properly applied for SIJS, attend college. ual or entity appointed by a state, or juvenile regardless of the individual’s age at the time of adjudi- The U.S. Congress established relief under court, and cation. Hence, a special immigrant juvenile will federal law to allow immigrant children to 2. It must be established be deemed to have made lawful entry obtain Lawful Permanent Resident (LPR) that reunification with one or into the United States status or a “green card,” and a path to citi- both of the immigrant’s par- regardless of how zenship after 5 years. The Immigration and ents is not viable due to s/he actually entered Nationality Act (INA)1 contains special provi- abuse, neglect or abandon- the country. sions for undocumented, unaccompanied ment, or a similar basis A legal conflict minor children through Special Immigrant Miriam found under state law, and existed between provi- Juvenile Status (SIJS). Most children eligible Chocron 3. For whom it has been sion of New York State for SIJS are foster children in the custody of determined in administra- Family Law and Im- the Department of Social Services, and were abandoned tive or judicial proceedings that it migration Law applica- by parents or whose parents have been deported and would not be in the alien’s best inter- ble to SIJS. The first with whom reunification is not possible. est to be returned to their or their law limited jurisdiction Special Immigrant Juvenile Status is a way for a parents’ previous country of national- for guardianship and dependent of a juvenile court to become a permanent ity, or country of last habitual resi- special findings determi- resident of the United States (i.e., get a “Green Card”). dence.3 nation to children up to If the juvenile applies for this status and is successful, In 2010, the law was amended with new provi- age eighteen, while the s/he may remain in the U.S., work legally, qualify for in- sions, mandating USCIS to process SIJS petitions other allowed for SIJS eligibility until the applicant state tuition at college, and in five years apply for U.S. within 180 days of filing and expanding the exemp- turned 21. However, young people eligible either for citizenship. However, should the application ultimately tions of inadmissibility grounds. Under these exemp- guardianship, special findings, or SIJS who were be denied, the child might also be deported. tions, the SIJS applicant is no longer barred from See SIJS, Page 15 Consequences in Criminal LAW OFFICES OF Proceedings of Foreign Consular HOWARD R. BRILL, P.C. Notification, or Failure to Notify COUNSEL TO THE PROFESSION • IMMIGRATION LAW • The arrest of a foreign national by ing both ICE and a DOJ agency, ICE the United States becomes an interna- will handle the notification. In non-fed- • DEPORTATION • POLITICAL ASYLUM tional affair. The United States has eral cases, the notification is handled by • EXCLUSION • WORK PERMITS complex treaty obligations governing the local authorities. For example, • REMOVAL • VISAS this situation. This article is intended to arrests or detentions made by the • APPEALS • “GREEN CARDS” provide the practitioner with an Nassau County Police Department are • EMPLOYER SANCTIONS • CITIZENSHIP overview of this process because Article handled by the arresting officer. Nationwide Practice 36 of the Vienna Convention creates Although, as noted above, the U.S. 250 Fulton Avenue, Suite 200 • Hempstead • NY 11550 obligations for arresting authorities. State Department is not responsible for (516) 489-8786 • FAX (516) 486-4933 The principal treaty obligations are notifications, arresting agencies gener- contained in Article 36 of the ally keep records to respond to Spanish Spoken Vienna Convention. As appli- inquiries made through the Member:Member:AmericanAmerican Immigration Immigration Lawyers Association Association cable to criminal proceedings, U.S. State Department or LecturerLecturer & & Panelist: Panelist:NassauNassau County,County BarSuffolk Association, County Suffolkand American County Bar Association Associations the convention requires that directly by a foreign con- when a foreign national from sulate. In some cases, the most countries is arrested or court may inquire at the ini- otherwise detained, the tial appearance whether the arresting officers must take notification has been made. Attorneys actions. If the detainee is The United States has from a country on the treaty arrangements with “mandatory list” under the some countries which require Convention, the arresting consular notification in every and officers must notify consular case including cases in which officials of the detainee’s Peter J. Tomao the foreign national may not country without delay. request it or even ask that the Judges However, if the detainee is from a coun- consul not be notified. In such cases, the try not on the mandatory list, the arresting authority should advise the NCBA is looking for arresting officers must only offer the detainee that notification will be made. U CO SA U Additional Mentors S N detainee the option of having that per- In mandatory notification cases, the T A Y son’s consular official notified. obligation exists notwithstanding the N B Founded for Middle School students. A 1899 N Notification is done directly by the detainee’s privacy concerns even if R O A TI arresting authorities to the country’s there is a legitimate fear of persecution S S O C I A consulate, not by the State Department. or mistreatment. Local authorities can- 8 a.m. to 8:45 a.m. one day every other week In federal cases, the agency which han- not ignore treaty obligations because from February 20111 to May 2011. dled the arrest is responsible for the they have the force of federal law under notifications. For arrests by agencies the Supremacy Clause of the U.S. Students in (y)our following such as the U.S. Immigration and Constitution.2 Make a Customs Enforcement (ICE) or the U.S. However, the arresting authorities communities are awaiting mentors. Postal Inspection Service, the notifica- should not inform consulate of difference in tion is handled by that agency. For detainee’s refugee or asylum status. In Hempstead • Uniondale • Jericho agencies which are part of the U.S. most cases, there is no obligation for the someone’s life – Department of Justice (DOJ) such as U.S. authorities to disclose the reason Westbury • East Meadow FBI, DEA and U.S. Marshall’s Service, for the detention, just the fact of it. the U.S. Attorney’s Office handles the The Vienna Convention and other Be a Mentor! Please contact Elaiinne Leventthhal at 1 516-747-4070 x.212 notification. However, in cases involv- See NOTIFICATION, Page 22 12 ■ February 2011 ■ Nassau Lawyer

...Because Law Sch NASSAU ACADEMY OF LAW just the be

TO REPORT OR NOT TO REPORT- LEGAL ISSUES INVOLVING TO WHOM, WHERE & HOW: A 6-s ELDERLY OR DISABLED and d THESE ARE THE QUESTIONS! TRY IT! select with the NCBA Ethics Committee PERSONS AND THEIR Wednesday, February 16 Tuesday, February 15, 2011 ANIMALS Wednesday, March 16 5:30 - 7:30 p.m. with the NCBA Animal & Elder Law Monday, April 4 This program will provide you with all the informa- Committees Wednesday, April 27 tion you need to know about what happens when Wednesday, May 18 an attorney violates the NYS Rules of Professional Thursday, March 3, 2011 Conduct. Wednesday, June 15 5:30 - 8:30 p.m. A member of the NYS Grievance Committee for PLANNING FOR THE LIFETIME CARE OF PETS 5:30 - 8:30 p.m. Includes Light Supper the 10th Judicial District will discuss these questions Maureen Rothschild DiTata, Esq. and what violations of the NYS Rules of Profes- Berwitz & DiTata LLP, Garden City sional Conduct Rule 8.3 requires an attorney to Wednesday, February 16 PROVIDING CARE FOR PETS WHEN NO PLAN IS INTRODUCTION report and how one goes about reporting them. Hon. Andrew M. Engel, Judge, District Court IN PLACE Dean, Nassau Academy of Law Guest Speaker Maureen A. Gest, Esq. Mitchell T. Borkowsky, Esq., Deputy Chief Counsel, JURY SELECTION LECTURE Law Office of Maureen A. Gest Bethpage Jeffrey S. Lisabeth, Esq., Mineola State of NY Grievance Committee for the 10th. Judicial District SERVICE ANIMALS UNDER THE AMERICANS WITH Wednesday, March 16 DISABILITIES ACT CONDUCT VOIR DIRE WORKSHOP Moderator Martin J. Coleman, Esq. OPENING STATEMENTS LECTURE Evelyn Kalenscher, Esq., Chair, NCBA Ethics Commit- Law Office of Martin J. Coleman, P.C. Woodbury David J. Dean, Esq. tee; Roslyn Heights Sullivan Papain Block McGrath & Cannavo, P.C. NY

THE RIGHTS OF ELDERLY AND DISABLED Monday, April 4 Skit Actors from Young Lawyers Committee INDIVIDUALS TO KEEP PETS IN HOUSING DELIVER OPENINGS WORKSHOP Terence Tarver, Esq., Chair, Young Lawyers Commit- Karen Copeland, Esq., New York DIRECT & CROSS EXAMINATION LECTURE tee; Sullivan Papain Block McGrath & Cannavo Marvin Salenger, Esq., Salenger Sack Schwartz & P.C., Mineola LEGAL ISSUES AFFECTING INDIVIDUALS Kimmel, Woodbury

Brian P. Sullivan, Esq., Sullivan and Sullivan DIAGNOSED WITH PSYCHIATRIC DISABILITIES Ben Rubinowitz, Esq. Garden City AND THEIR PETS Gair Gair Conason Steigman Mackauf Bloom & William M. Brooks, Esq. Rubinowitz, New York Sarika Kapoor, Esq., Court Attorney Professor of Law; Director of the Civil Rights Supreme Court Nassau Litigation Clinic Touro College Jacob D. Fuchsberg Law Center Louis Imbroto, Esq., LI Contractors’ Association Hauppauge INCORPORATING PETS INTO HOME CARE PLANS Friday, March 4, 2011 Marsha Flowers, MSW LO 2.0 Credits in Ethics & Professionalism Director of Professional Relations 9 a.m.-3 p.m. SeniorBridge, New York Tuition Includes Continental ADV Breakfast & Lunch

BE SOCIAL. . . Q&A Panel 6.0 NYMCLE credit hours in Trial . . .BE CAREFUL! areas of professional Moderator practice or skills SOCIAL MEDIA FOR LAWYERS Elinor Molbegott, Esq. Monday, February 28, 2011 Law Office of Elinor Molbegott This program will teach trial lawyers of all levels 5:30 - 7:30 p.m. East Williston advanced techniques to improve their courtroom results. The program will focus on what other Attend this important seminar that will discuss the Satisfies 3.0 NYMCLE credit hours: .5 disciplines can teach trial lawyers and help them win legal issues about social media from the ethics & professionalism and 2.5 areas of more cases. perspective of: professional practice x marketing I’M READY FOR MY CLOSE UP, MR. DeMILLE: x litigation ACTING TECHNIQUES FOR THE COURTROOM x ethics NCBA Tech Center Discussion of the many parallels between acting and trial work. Explore techniques for improving: x the workplace Speakers Ɣ jury selection Richard D. Collins, Esq. Westlaw Seminars Ɣ opening statements Collins, McDonald & Gann, P.C., Mineola Never a charge! Ɣ direct and cross examinations All seminars 1 CLE Credit Ɣ summations Sharon N. Berlin, Esq. Watch film clips to see how acting techniques can be Lamb & Barnosky, LLP, Melville brought into the courtroom! Feb. 16 10-11 a.m. Intermediate Westlaw LEARN TO USE THE COURTROOM STAGE TO YOUR Moderator 11:30-12:30p.m. Intro to Westlaw ADVANTAGE Daniel W. Russo, Esq. Richard V. Licata, Esq. Please register in advance or Actor/Trial Lawyer Collins, McDonald & Gann, P.C., Mineola classes may be cancelled. “HOW’S YOUR JURY?” “COMPARED TO 2.0 Credits: .5 ethics & professionalism; WHOM?”: KNOW YOUR JURORS 1.5 law practice management To register call 516-747-4464 x228 Nassau Lawyer ■ February 2011 ■ 13 l was nning February - March 2011

Order Now! ion hands-on workshop series to learn End of Year CD/DVD Sale! See ad elop effective trial skills, from jury page 17 n through summation. 15% OFF all 2010 NAL CDs and DVDs GET THE TOTAL TRIAL

EXPERIENCE! Nassau Academy of Law ORDER FORM

TO REGISTER OR ORDER: Circle your selections in the correct columns and total amount due. PEN TO LL TTORNEYS O A A , •By Check: Make checks payable to NAL and mail with form to NAL, 15th and West Streets, Mineola, NY 11501 ESPECIALLY IF YOU’VE NEVER •By Credit Card: FAX completed form with credit card information to 516-747-4147 HAD THE OPPORTUNITY TO TRY •Order Online: www.nassaubar.org >MCLE>Calendar, Reservations A CASE IN COURT. Seminar Reservation Form

Date Seminar Name TOTAL Non- 5 Session Thursday, April 28 P E Credits Member Member Ticket CONDUCT DIRECT & CROSS OF WITNESS 6 Sessions Try It! Hands-on Trial Skills Workshops 16.0 16.0 $300 $400 ~ WORKSHOP Feb. 15 To Report or Not To Report: These Are The Questions! 2.0 2.0 $70 $105 YES ---Special Fee for NCBA Young Lawyer Committee Member 2.0 2.0 $50 ~ YES Wednesday, May 18 Feb. 28 Be Social. . .Be Careful! 1.5 0.5 2.0 $65 $100 YES CONDUCT CROSS & DIRECT OF WITNESS Mar. 3 Legal Issues Involving Elderly Or Disabled Persons and their Animals 2.5 0.5 3.0 $100 $135 YES WORKSHOP ---Special Fee for Non-Attorney 2.5 0.5 3.0 ~ $25 YES SUMMATIONS LECTURE Mar. 4 Looking for the Advantage At Trial 6.0 6.0 $225 $325 2 punches + $35 Robert G. Sullivan, Esq., Sullivan Papain Block McGrath & Cannavo, P.C., Mineola SEMINAR RESERVATION TOTAL:

SPRING 2011 CD and DVD Order Form Wednesday, June 15 DELIVER SUMMATIONS WORKSHOP CD/DVD Area of Law Seminar Name TOTAL CD/DVD Non- 16.0 NYMCLE credit hours in skills or P E Credits Member Member Seminar Code The 123's and ABC's of Financial Statements: Entities & Taxes 1.0 1.0 35 /50 50 /70 1BIZ0123 areas of professional practice Business/Corp *Participants completing this course will receive Commercial Division Practice 1.0 1.0 35 /50 50 /70 1COM0122 The Ins and Outs of Medicare and Medicaid 2.0 2.0 70/100 85/120 DH012411 a Certificate of Completion from the Nassau Civil Litigation Academy of Law. Looking for the Advantage At Trial 6.0 6.0 210/240 300/320 1TRIAL0304 Administrative Hearings 1.0 1.0 35 /50 50 /70 1HEARD0122 Criminal Law Criminal Law: From Arraignment to Disposition 2.0 2.0 70/100 85/120 1CRIM0123 Elder Law: The Role of a Court Evaluator 1.0 1.0 35 /50 50 /70 1EVAL0122 Estate/Elder Law Legal Issues Involving Elderly Or Disabled Persons and their Animals 2.5 0.5 3.0 105/140 120/160 1PETS0303 Etiquette and Ethics - Be Civil! 1.0 1.0 35 /50 50 /70 1CVL0122 Ethics To Report or Not To Report: These Are The Questions! 2.0 2.0 70/100 85/120 1ETHO215 OKING FOR THE Divorce and the Military Client 1.0 1.0 35 /50 50 /70 DH011811 Family Law/Mat The Matrimonial & Family Court Connection 0.5 0.5 1.0 35 /50 50 /70 1MAT0122 ANTAGE AT TRIAL All About ADR 1.0 1.0 35 /50 50 /70 1ADR0123 Be Social. . .Be Careful! 1.5 0.5 2.0 70/100 85/120 1SOCIAL0228 echniques You Didn’t Learn General Powerful Writing Techniques to Persuade Judges & Win Cases 1.0 1.0 35 /50 50 /70 1WRITE0122 What the Bench Wants! 0.5 0.5 1.0 35 /50 50 /70 1BENCH0123 In Law School Your "First" Article 81 Proceeding 1.0 1.0 35 /50 50 /70 DH011011 Personal Injury The ABC's of Depositions 1.5 0.5 2.0 70/100 85/120 1DEP0123 learn how jurors make decisions Real Estate A "Gallimaufry" of Real Estate Practice Points 1.5 0.5 2.0 70/100 85/120 1REQ0122 retain information use human biases to evaluate cases CD/DVD Order Total (Shipping & Handling Included) learn voir dire strategies ADD SALES TAX: 8.625% trial strategies case narrative development CD/DVD ORDER TOTAL: PROVE YOUR SUCCESS RATE WITH JURIES TOTAL y Futterman, PhD. Name: ENCLOSED ychologist & Trial Strategy Consultant Address: OAR Litigation Consulting City/State/Zip: Phone: Email: ECIAL EFFECTS: DEMONSTRATIVE EVIDENCE FOR

E 21st. CENTURY Credit Card Acct. #: ______learn visual strategies as another tool of persuasion Security Code: ______Exp. Date:______For Financial Aid Guidelines or m attorney and author, Use of Demonstrative Arrangements: 516-747-4464 dence in the Twenty First Century Signature: learn the obstacles to using visual evidence learn how to develop a visual presentation that will YOU MAY ALSO ORDER ONLINE: www.nassaubar.org. rsuade jurors NDERSTAND THE BASIC TOOLS IN POWERPOINT Call to reserve: PRESENT YOUR CASE 2010 Florida Bar CDs ssell Corker, Esq., Shayne Dachs Corker Sauer 516-747-4464 chs, LLP, Mineola Available Membersonly! 14 ■ February 2011 ■ Nassau Lawyer

– Part Two – VIEWfrom the BENCH A Comparison of the Rules of Evidence and Trial Procedures In Federal and State Courts

By Hon. Arthur D. Spatt The Role of the Judge that Daubert applies to all expert testimony in Federal courts. Then, in 2000, Rule 702 was amend- Editor’s note: this is the second of a two-part arti- As for the judge’s role during a Federal trial, it ed to codify Daubert in a three-pronged test. Under cle; last month’s piece focused on the hearsay rule. can be an active one. For example, Rule 614 pro- the Rule’s current approach, the proponent must The differences between the Federal and State vides that the judge may call witnesses on his or now show that (1) the expert relied on sufficient rules of evidence and trial procedures are hardly her own motion or at the suggestion of a party and facts or data; (2) the expert utilized reliable princi- confined to the hearsay rule. Below, I will discuss may question a witness called by a party. Of par- ples or methods; and (3) the expert reliably applied rules on unfairly prejudicial evidence, ticular interest is the provision that those principles or methods to the facts of the case. the role of the judge and expert testi- allows a party to object to the court’s There is no requirement that the expert have a par- mony before giving an overview of questions or calling of a witness “at ticular degree, license or certification. some differences between Federal and the time or the next available oppor- In New York State, Frye is still the rule, at least State practice. tunity when the jury is not present. in theory. In 1994, the New York Court of Appeals Rule 403 Rule 614(c). stated that Daubert is inapplicable in State courts There is no comparable rule in the A major Rule impacting practice in because the case’s reasoning was based on the State courts, although at one time Federal Rules of Evidence. People v. Wesley, 83 N.Y. the Federal court is FRE 403, entitled State Supreme Court Justices has the “Exclusion of Relevant Evidence on 2d 417(1994). The Court of Appeals contrasted State right to call impartial medical witness- law with the “liberal trend” and inclusionary thrust Grounds of Prejudice, Confusion or es to resolve certain witnesses. Even Waste of Time.” There is no comparable of the FRE’s. Yet, notwithstanding the Wesley case, that past rule did not allow the use of State courts increasingly use the multiple term formal rule in the State courts. the testimony at trial. Rule 403 reads as follows: “Al - Frye/Daubert. Some decisions refer to trial judges though relevant, evidence may be ex- Expert Evidence – Frye or as “gatekeepers” for expert testimony and, very cluded if its probative value is sub- Daubert? interestingly, some State courts apply solely a Daubert analysis. stantially outweighed by the danger of unfair prej- Since 1923, New York’s State courts have gov- udice, confusion of the issues, or misleading he jury, One of the aspects of Daubert that supposedly erned the admissibility of expert testimony by the made it so significant was its recasting of the or by considerations of undue delay, waste of time, standard established in Frye v. United States, 293 F. or needless presentation of cumulative evidence.” Federal judge’s role as gatekeeper of the types of 2d 1013 (D.C. Cir. 1923). The Frye case involved the expert evidence admitted, as opposed to relying on The most important aspect to understand regard- exclusion of expert testimony with regard to a prim- ing Rule 403 is that it only bars evidence when its the principles’ acceptance by the scientific commu- itive lie detector. The D.C. Circuit held that expert nity, as originally articulated in Frye. In my view, probative value is “substantially outweighed by the testimony was admissible only after the scientific danger of unfair prejudice.” Emphasis is placed on however, the judge was always the gatekeeper, even principles upon which the testimony was based had pre-Daubert. It has been my observation that, con- the word “unfair” because all adverse evidence is gained general acceptance as reliable in its field. “prejudicial.” “Unfair prejudice” exists only when trary to some other learned opinions, the Daubert After the FRE’s were adopted in 1975, Federal doctrine, which emphasizes judicial gatekeeping, the evidence creates the probability of an improper courts determined the admissibility of expert testi- or irrational basis for the jury’s decision. The court actually may be the more restrictive approach. mony under Rule 702. The Rule’s language was not Application of the five Daubert factors gives judges will look at whether the evidence tends to elevate very different from the standard enunciated in Frye. emotion over intellect, arousing extremes of horror more grounds for precluding expert testimony. By In 1993, a unanimous United States Supreme the same token, the Frye approach may allow expert or an impetus to punish. court held in Daubert v. Merrill Dow, 509 U.S. 597 Some examples of how the Rule works are found testimony even when some Daubert factors are not (1993), that Frye no longer applied in Federal present. in United States v. Chandler, 996 F.2d 1073 (11th court. Admissibility of scientific evidence – now Cir. 1993) (in a drug conspiracy prosecution, evi- Personally, I generally take an inclusive ap- expanded to all expert testimony in all fields – does proach, only rejecting expert testimony when it is dence that the defendant had made threats against not depend on general acceptance in the field of two people he suspected of stealing his drugs was contrived to fit certain situations without any scien- expertise. Rather, the judge acts at gatekeeper and tific reliability, or if it delves into factual matters not unfairly prejudicial) and United States v. has to be assured that the evidence is reliable Harvey, 991 F.2d 981 (2d Cir. 1993)(when the charge that are within the jury’s province. In other words, if based on five factors, none of which is dispositive or a party presents a witness who appears to have was purchasing child pornography through the exclusive. The Daubert factors require the judge to mail, evidence of graphic adult pornography found been more motivated by expert fees than scientific consider (1) whether the technique or theory can be reliability, I will draw the line. at the defendant’s home was unfairly prejudicial or has been tested; (2) whether the theory or tech- because it was not a crime charged and would have nique has been subject to peer review and publica- WHAT ARE SOME OF THE MAJOR DIFFERENCES inflamed the jury). tion; (3) the known or potential rate of error; (4) the IN TRYING A CASE IN THE FEDERAL COURT AS The most inflammatory and sometimes shocking existence and maintenance of standards and con- OPPOSED TO THE STATE COURT? evidence to be found in any court are photographs of trols; and (5) the degree to which the theory or • Federal courts employ a “pure” individual injuries or death. Notwithstanding the emotion the technique has been generally accepted in the sci- calendar system. One judge is assigned the case depictions may evoke, however, such photographs entific community. from the filing of the complaint through post- are generally admitted and not deemed to be unfair- Later, the United States Supreme Court ruled in ly prejudicial if they are relevant to proof of the Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), See VIEW FROM THE BENCH, Page 19 crime or tort at issue.

Edwin J. Mulhern, Esq. Court Bond Specialists COUNSEL TO THE PROFESSION BONDS • BONDS • BONDS • BONDS • Administration • Appeal AV RATED LAW FIRM ESTABLISHED IN 1954 • Executor • Guardianship • Injunction • Conservator Representing Clients In The Areas Of: • Lost Instrument • Stay • Mechanics Lien GRIEVANCE COMPLAINTS • Plaintiff & Defendant’s Bonds GRIEVANCE PROCEEDINGS Serving Attorneys since 1975 Complete Bonding Facilities Edwin J. Mulhern, Esq. 1-800-841-8879 Former Chairman of Nassau County Bar Assn. Grievance Committee FAX: 516-741-6311 Former Member of the Grievance Committee For The 10th Judicial District Immediate Service! Past President Criminal Courts Bar Assn. of Nassau County 1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts) One Old Country Rd. • Carle Place • New York 11514 • 516-294-8000 NYC Location: 108 Greenwich Street • New York, New York 10006 www.duffybonds.com Nassau Lawyer ■ February 2011 ■ 15

law matters. She is also general counsel been approved, while other judges may IN BRIEF ... to the Long Island Gasoline Retailers SIJS ... be willing to terminate or administra- Association, a nationally recognized tively close the case once the attorney Continued From Page 8 non-profit trade association with over Continued From Page 11 has filed the I-360, or received an I-360 litigation. He is a former Bronx 600 members, and serves as counsel to unaware of this law until after turning filing receipt. Assistant District Attorney and is the Village of Kensington Board of 18 simply missed out on their sole oppor- If the child placed in removal proceed- presently Chairman of the Queens Trustees, Zoning Board of Appeals and tunity to legalize their status and nor- ings fails to appear at a hearing, he may County Bar Association’s Banking Law Architectural Review Board. malize their life. In these cases, the only have an outstanding order for removal/ Committee. Mr. Ricca has been recog- Christine M. LaPlace and Bonnie mechanism by which they could be deportation issued against him, meaning nized by the Neighborhood Housing L. Gorham have been named partners brought under Family Court jurisdiction deportation can occur at any time. A Development Corporation for pro bono of Guercio & Guercio, LLP. would through a guardianship petition of motion to reopen the proceeding is nec- services, has served as a volunteer Leslie Bennett was recently a relative or family friend who stepped essary if the child has a final outstand- mentor with the Big Brothers/Big appointed as Counsel to Rigano LLC. forward to care for them. ing removal order from the immigration Sisters Organization and also a Mr. Bennett concentrates his practice in A recent amendment to Section 661 of court. USCIS cannot adjudicate an appli- Trustee on the Board of Jamaica civil and commercial litigation, environ- the Family Court Act resolves the ques- cation for legal relief (such as SIJS) Hospital. mental and toxic torts, employment law tion of whether youths over the age of unless the case is reopened by an Thomas F. Liotti was recently and appellate advocacy. Mr. Bennett is a eighteen are eligible to have a guardian Immigration Judge. appointed by Professor Bruce Green, former Assistant United States appointed for them. Both Surrogate’s While the scope of this article doesn't Chair of the American Bar Association’s Attorney in the Southern District of Courts and Family Courts now have allow for an analysis of other forms of Criminal Justice Section, to a Special New York and former Law Clerk to the jurisdiction to appoint guardians for relief available to minors under immi- ABA Task Force on The Collateral Honorable Harry E. Kalodner in the youths up to age 21. gration laws, the practitioner is advised Consequences of Pleas. The establish- Third Circuit. He earned his Juris When the child has a criminal record, to be particularly aware of, and weigh, ment of the Task Force was brought Doctor at New York University Law looking at the nature of the offense and possibility of assistance under various about following the United States School. its adjudication is essential for weighing Visa forms and statutes. 4 Supreme Court decision in Padilla v. Vishnick McGovern Milizio LLP the impact on the child’s eligibility for There are legal consequences to con- Kentucky which involved the issue of announced that Michael J. Stacchini relief. While most juvenile delinquency sider when opting for SIJS relief since counsel’s obligation to inform a client has been promoted to partner. Mr. and youthful offender adjudications are this remedy may be more or less favor- that he was facing deportation as a col- Stacchini, a former Bronx County not considered convictions for purposes able, depending on the specific circum- lateral consequence of pleading guilty. Assistant District Attorney, concen- of immigration law, such adjudications stances of each case. A child granted Mr. Liotti is also a Village Justice in trates his practice in the areas of com- still could be used in a discretionary SIJS cannot later petition for his or her Westbury. mercial, matrimonial and Surrogate waiver phase of SIJS approval. Hence, biological or prior adoptive parents. Patricia C. Marcin, a trusts and Court litigation. He earned his Juris juvenile delinquency determinations are SIJS creates an immediate path to LPR estates attorney at Farrell Fritz, P.C., Doctor, magna cum laude, from Boston negative factors which must be mitigat- status, in contrast to asylum, U or T was appointed to the Caumsett University School of Law where he was ed by positive equities. visas. Undocumented children who are Foundation’s Board of Directors. Ms. honored as the G. Joseph Tauro Some juvenile adjudications do bar being adopted may also apply for SIJS Marcin, who earned her Juris Doctor Distinguished Scholar and the Paul J. the child from relief, such as for con- as a faster track to legal status since from the Jacob D. Fuchsberg Law Liacos Scholar, and was a recipient of trolled substance and firearms offenses. acquisition of legal status by adoption Center at Touro College, is also a mem- the American Jurisprudence Award in Since some discretionary waivers are has become complicated with the accept- ber of the board of directors of The Long Criminal Law and the American available for such issues, it would be very ance of Hague Convention guidelines for Island Community Foundation and a Jurisprudence Award in Criminal advisable to have the cases reviewed by adoptions. SIJS applications must be member of the professional advisory Procedure. an Immigration attorney. Special adjudicated within six months by committee for the North Shore/LIJ Heather L. Winters has been Immigrant Juvenile Status applicants USCIS, but other processing times may Foundation. She is also co-vice president named a partner in the firm of Jay may be inadmissible if they are tried be much longer and uncertain. SIJS is of the Cold Spring Harbor Special Davis & Associates, PLLC and the firm and/ or convicted as an adult. an efficient and predictable process Education Parent Teacher Association. has changed its name to Davis & The child, a caseworker or an attor- (going by USCIS standards) as com- Joel M. Greenberg, a senior Winters, PLLC. Ms. Winters, who con- ney can complete the application for pared to other discretionary immigra- partner at Abrams, Fensterman, centrates her practice in Matrimonial SIJS for submission to USCIS, including tion relief. Fensterman, Eisman, Greenberg, and Family Law, earned her Juris proof of age, custody, and an order from Finally, it is very important to note Formato, & Einiger, LLP and Co- Doctor from Hofstra University School a dependency court that the child is that by failing to make a timely and Chairman of the firm’s Health Law of Law. eligible for foster care due to abuse, neg- appropriate application for SIJS, a child practice, has been accepted onto the Desiree Lovell Fusco was named a lect or abandonment. Along with the is exposed to deportation and this, in three (3) legal services panels main- partner at Bondi & Iovino and the SIJS Form I-360 (Petition for Special turn, may prohibit the juvenile from tained by the New York State Dental Garden City-based firm has changed its Immigrant), additional applications being able to establish legal residency in Association. The panels focus on man- name to Bondi Iovino & Fusco. Ms. must be filed in order to adjust status the future. aged care issues, professional discipline Fusco heads the Wills, Trusts & Estates and obtain authorization to work while and Medicaid issues for dentists. Miriam Chocron an immigration practitioner area of the practice. the petitioner await the interview for serves as Vice-Chair of the NCBA Immigration Heather P. Harrison, an associate changing status to lawful permanent Law Committee. in the commercial litigation department New Firms And Locations residence. This process includes a crimi- 1. The Immigration And Nationality Act (INA), at Farrell Fritz, P.C., has been selected Bracken & Margolin, LLP and nal check by fingerprinting and a med- §101(a)(27)(J), codified at 8 USC 1101(a)(27)(J). as a “Rising Star” award recipient by the Harvey B. Besunder, P.C. have merged ical exam. 2. William Wilberforce Trafficking Victims Queens Courier for her leadership in firms. The new firm will be known as If the child was apprehended by Protection Reauthorization Act of 2008 (VPRA), the legal and business community. Ms. Bracken Margolin Besunder LLP with P.L. 110-457. immigration while entering the U.S. s/he 3. See INA §101(a)(27)(J), and TVPRA §235(d)(1). Harrison and the other recipients were offices located at 1050 Old Nichols is placed in removal proceedings. If the 4. The U Visa (for crime victims), INA honored at a ceremony at Citi Field. Ms. Road, Suite 200, Islandia. minor appears eligible for SIJS, that §101(a)(15)(U); T Visa (for trafficking victims), Harrison concentrates her practice in Jay Davis & Associates has changed petition should be filed as soon as possi- INA § 101(a)(15)(T); protection under the labor and employment law and serves its name to Davis & Winters, PLLC, Violence Against Women Act (VAWA); asylum ble. Many judges will not terminate or (with special provisions for unaccompanied alien on the Legislative Advocacy Committee located at 600 Old Country Road, Suite administratively close the case until the children), INA §208(b)(2)(E); and family-based of the Queens Chamber of Commerce. 535, Garden City. I-360 Petition for Special Immigrant has immigration petitions. Last year she was elected to the board of Herman Katz Cangemi & Clyne, LLP Flushing Council on Culture and the has relocated its offices to 538 Arts. In addition, Ms. Harrison, who Broadhollow Road, Suite 307, Melville. earned her Juris Doctor from St. John’s A.J. Temsamani has established The University School of Law, lectures on Law Firm of A.J. Temsamani, located at EZRATTY EZRATTY & LEVINE, LLP various topics relating to employment 666 Old Country Road, Suite 303, law and performs pro bono services for Garden City. Mr. Temsamani concen- not-for-profit clients. trates his practice in the areas of matri- “The Landlord Tenant Law Firm” Several attorneys and staff members monial and family law and was recently of Mineola-based Kelly, Rode & Kelly, recognized by Ten Leaders as one (1) of Covering Nassau, Suffolk and all Boroughs LLP recently distributed food donations the top ten (10) leaders of matrimonial to assist families who are clients of and family law on Long Island under Family & Children’s Association, a local, the age of 45. non-profit organization devoted to help- The new firm of Leslie R. Bennett ing Long Islanders in need. LLC has opened at 425 Broad Hollow New Partners, Of Counsel And Road, Suite 217, Melville. Associates The In Brief section is compiled by the Honorable Stephen L. Ukeiley, Suffolk County Andrea Tsoukalas has been named District Court Judge. Judge Ukeiley is also an a partner at Uniondale-based Forchelli, adjunct professor at the New York Institute of Curto, Deegan, Schwartz, Mineo, Cohn Technology and an Officer of the Suffolk Jaime Ezratty Donna Levine & Terrana, LLP. Ms. Tsoukalas joined County Bar Association’s Academy of Law. [email protected] [email protected] the firm in January of 2005 and concen- PLEASE E-MAIL YOUR SUBMISSIONS TO 516-747-5566 x305 516-747-5566 x304 trates her practice in zoning, land use, Nassau Lawyer: [email protected] environmental, litigation and municipal with subject line: IN BRIEF 16 ■ February 2011 ■ Nassau Lawyer

Despite the shortcomings of the DREAM ... DREAM Act, hundreds of thousands of young people would have benefitted from Continued From Page 5 its provisions and the opportunity to be deficit-reducing economic gains as enact- on a path toward citizenship. The propo- ment would, over the long term, lead to nents of the bill have vowed to continue higher earning power for its participants the fight for its passage and, someday, the and more tax revenue for the govern- dream that they dare to dream really ment. Some agencies, such as the may come true. Department of Labor and the Social Handicapping the youth who are our Security Administration, are looking future, by giving them second-class citi- toward immigration to balance the zenship or no opportunity to become law- declining birth rate of U.S. citizens. This ful residents of the country where they would seem to be an argument in favor of live, may have dire consequences in the birthright citizenship as well as legal sta- long term, and should be carefully tus for youth raised in this country. weighed as the debate on immigration A significant feature of the DREAM continues. Act is the requirement that initial condi- Linda G. Nanos a practicing immigration tional status can be made permanent by attorney serves as a Co-Chair of the “Bridge completing either two years of college or Over Language Divides” NCBA (BOLD) Task two years in the military. Force. The Department of Defense’s Fiscal 1. The DREAM Act, acronym for Development, Year 2010-2012 Strategic Plan states Relief and Education for Alien Minors Act, has that the DREAM Act is a smart way to been introduced repeatedly since 2001 in expand its recruitment pool.4 In Congress and has yet to pass. 2. The Supreme Court has upheld the refusal by September 2010, the DREAM Act was the Immigration and Naturalization Service actually attached to a defense-spending (INS) or Immigration and Customs bill because of the close connection to the enter without inspection overland, as filing fees of over $2,500 provide a short Enforcement (ICE) to stay the deportation of needs of the military, but the Senate opposed to overstaying a visa, would be term economic gain for the government, illegal immigrants merely on the grounds that they have U.S.-citizen minor children, e.g., failed to act on it in that format. Despite ineligible for benefits under the DREAM but may be unrealistic for young people “anchor babies.” Immigration and support from diverse sectors, the Act has Act because they often immigrate after who are students and may not have Naturalization Service v. Jong Ha Wang, 450 been vehemently opposed by anti-immi- age 16 when they can cope with the rig- parental support. If participants fail to U.S. 139 (U.S. Supreme Court, March 2, 1981); gration factions who are against legisla- ors of the journey. Even those who are comply with the Act’s requirements, they Immigration and Nationality Act of 1965 brought here at a younger age from the can be referred for removal from the U.S. (“Hart-Celler Act”) (INA), Pub.L. 89-236, tion that proposes to give amnesty to 3. In Plyler the Court reviewed a revision to the immigration law-breakers. less developed agrarian countries have to a country they barely know. Texas education laws in 1975 that allowed the There are basically two ways that a limited education in their native lands If the DREAM Act had passed, it could state to withhold from local school districts state person in the U.S. can be undocumented: and may drop out of school before gradu- have postponed further consideration of a funds for educating children of illegal aliens. entry without inspection at a place other ating because they cannot keep up with more comprehensive approach to immi- 4. FY 2009 Annual Report Joint Strategic Plan (September 30, 2009), VA/ DoD, Joint Executive than an official designated point, or entry the academics. gration reform that could benefit wider Council. with a visa and then overstaying its It can be anticipated that a good num- segments of the foreign national popula- 5.Terms that are used for undocumented individu- authorized time allowance.5 ber of those who might initially qualify tion. There is danger that the DREAM als include undocumented immigrant, illegal It is far easier for a foreign national to for conditional status could have difficul- Act can be offered in Congress as a trade- immigrant, undocumented alien, unauthorized migrant, illegal migrant, illegal alien, migrant, or obtain a visa coming from an industrial- ty complying with the requirement to off in the future for harsher enforcement undocumented worker. Illegal Immigration, U.S. ized country than from a poorer country. complete college or military service to measures that are considered by immi- Immigration Support (2010), www.usimmigration A large percentage of immigrants who gain permanent residence. The proposed grant advocates as already draconian. support.org/illegal-immigration.html.

counsel in maintaining eligibility for CROSS-CURRENTS ... relief from removal for their clients. There may be little that even the Continued From Page 3 most accomplished criminal or For example, is the defendant a immigration attorney can do to pre- permanent resident? How long has he vent a client from being deemed or she been a permanent resident? “deportable.” What prior convictions, if any, are The Padilla decision clearly there and, most particularly, what are requires that counsel recognize that the specifics of said prior convictions? there is a potentially devastating Does the defendant have family or confluence between Criminal and other compelling roots here? Is the Immigration Laws, and that such criminal statute in question divisible recognition must be addressed in a and, if so, could taking a plea under proper manner. At a minimum, even a different subsection divert the Padilla requires counsel to instruct outcome more favorably? Is there an criminal defendants to seek the “amount of loss” mentioned? When advice of competent immigration was the crime committed? How much counsel. Providing wrong advice or marijuana was involved? The list of providing no advice, and remaining such potential highly probative but silent on the issue, is explicitly pro- crucial questions can go on and on hibited.4 and on. The effect of Padilla thus far in It must be noted that these opening the lines of communication queries are used by immigration between the Criminal and counsel not only to determine a per- Immigration barshas been positive son’s deportability, i.e., whether a and hopefully, long-lasting. particular predicate conviction ren- Mr. Kohler serves as Chair of the ders a criminal defendant removable Immigration Law Committee and prac- from the United States. But, more tices immigration and customs law in importantly, once found removable, Syosset. these queries will assist immigration 1. Noeleen G. Walder, “Courts Differ About counsel to determine whether such a Retroactive Effect of High Court Counsel defendant will actually be removed, Ruling,” www.law.com, July 27, 2010. or whether there is relief available in 2. See e.g., People v. Garcia, 4050-06, 2010 NY Slip Op 20349 (Aug. 26, 2010); People v. removal proceedings that will allow Ortega, 29 Misc.3d 1203(A)(Sept. 28, the individual to remain in the 2010)(unreported decision)(“Because this United States. Court finds that Padilla merely applied the In other words, even when a con- old rule described in Strickland to a specific viction appears reasonably inevitable set of facts, Defendant’s Padilla claim applies on collateral review.”) and, most especially if the client is an 3. 29 Misc.3d 1201(A), (Sept. 17, 2010)(unre- “illegal [undocumented] alien,” such ported decision), analysis will assist immigration 4. Padilla, at 1484. Nassau Lawyer ■ February 2011 ■ 17

Nassau Academy of Law He shoots! Nassau Academy of Law Special 2010 CD/DVD Order Form He scores!! 15% OFF 1.Circle name/number of program and applicable price 2.Complete the Total, Discount, Tax and Mailing/Payment Information By Dede Unger All Orders! 3. Mail entire form to NAL, 15th & West Streets, Mineola, NY 11501 or FAX 516.747.4147 “Let’s do it again!” 4. Or order online at www.nassaubar.org “We had so much fun.” CLE Credits “Perfect day after a big snow storm...” “Looking forward to the next one.” TOTAL CD/DVD CD/DVD “Count me in next time around.” Area of Law Seminar Name P E Credits Member Non-Member Order Code On Thursday night, January 13th, the State, Local Tax Consequences of Buying & Selling a Business 1.0 1.0 35/50 50/70 DH22310 Nassau County Bar Association stormed The Forensic Accountant and Investigative Attorney… 1.0 1.0 35/50 50/70 DH52510 the Nassau Coliseum. Okay, not really Business/Corp Annual Securities Arbitration Update 1.0 1.0 35/50 50/70 DH112210 stormed per se, but 110 members, PCs, LLCs, LLPs, Etc, the Alphabet Soup of Business 1.0 1.0 35/50 50/70 0BIZ0124 guests and Annual CPLR Update-w/ Profs. Alexander & Simons 2.5 0.5 3.0 105/140 120/160 0CPLR118 family got Preparing for Trial: An Expert's Point of View 2.5 0.5 3.0 105/140 120/160 OPREP1215 together for Your "First" Car Accident Case 1.0 1.0 35/50 50/70 DH101210 a fabulous Creating A Winning Record for Appeal 2.0 2.0 70/100 85/120 0RECRDO123 event; one Civil Litigation we are sure e-discovery: What the Litigator Needs to Know 2.0 1.0 3.0 105/140 120/160 0edis0607 to do again. Evidence Update - 18B 2.5 2.5 105/140 120/160 0EVUP0510 Starting Hot Topics in Torts from both Plaintiff & Defendant Perspectives 2.5 0.5 3.0 105/140 120/160 0TORT0524 out at the Long Island Marriott, Insurance Law Update 2.5 0.5 3.0 105/140 120/160 0INSR0510 we ate our fill of a wonder- Depraved Indifference in a Post-Feingold World 2.5 0.5 3.0 105/140 120/160 0DEPRAV0527 ful smorgasbord, including barbequed Misconceptions in Criminal Law Practice 2.0 2.0 70/100 85/120 H72110 ribs, buffalo wings, chicken fingers, Criminal Law Annual Criminal Law Update 18B 2.5 0.5 3.0 105/140 120/160 0CLU1029 onion rings, mac-n-cheese, freshly carved roast beef, mashed potatoes, veg- Animal Cruelty Law & Enforcement 1.0 1.0 35/50 50/70 DH101310 etables, corn on the cob and desserts. To Plead or Not To Plead: How To Prepare, How To Advise 1.0 1.0 35/50 50/70 0PLEADo123 Stuffed, we left the warmth of the 2006 Pension Protection Act 1.0 1.0 35/50 50/70 DH111010 Marriott to head across the parking lot Practice Tips for the Civil Litigator in Surrogate's Court 1.0 1.0 35/50 50/70 DH61010 in the frigid weather, many wearing the Estate/Elder Law t-shirts provided by the Islanders, to the Health Care Decision Making 2.5 0.5 3.0 105/140 120/160 0ADV1006 Coliseum for the big game. Bill Hodges Elder Law: Advice for your Grandparents 1.0 1.0 35/50 50/70 0ELDER0124 noted, “Parking was a pleasure, the buf- Building Green on LI: Development & Transactional Issues 1.0 1.0 35/50 50/70 DH111210 Environmental fet was sumptuous...the seats were ter- 2010 Brownfields Conference 2.5 0.5 3.0 105/140 120/160 0BROWN0315 rific...” and what he failed to mention Estate Planning Malpractice 1.0 1.0 35/50 50/70 DH93010 was the price, which at $50 per person Ethics was incredible! Sandbox Etiquette and Other Applications of the Golden Rule 2.0 2.0 70/100 85/120 0ETH0124 Maybe it was the price, or just that it Basic Matrimonial: "Untying The Knot" 1.5 0.5 2.0 70/100 85/120 0KNOTOTO123 was a totally different event than usual, Forensic E valuations & Mental Health in Family Court Matters 2.5 0.5 3.0 105/140 120/160 0BNKTBL1115 but it was great to see members who are not generally active in the Association. "New" Matrimonial Rules - It's Happening in NY! 2.0 2.0 70/100 85/120 0NEWMAT1004 Indeed, one member stated that it was Family Law/ Representing Parents & Children in Article 10 Proceedings 1.0 1.0 35/50 50/70 DH120110 “the first bar association outing that I Matrimonial Divorce and the Military Client 1.0 1.0 35/50 50/70 DH011811 participated in and I would gladly do it again!” So while success is measured in The Role of the Attorney for the Child 1.0 1.0 35/50 50/70 DH41010 different ways for different events, and Mat Rules & Fee Disputes 1.0 1.0 35/50 50/70 DH0310 the night was definitely a sell-out (we Business Valuation: "A Moving Target" 2.5 0.5 3.0 105/140 120/160 0BIZVAL0303 had originally committed to only 20 tickets!), the fact that members were An Article 81 Guardianship Primer 3.5 0.5 4.0 140/160 200/220 0ART810222 able to socialize and network with oth- The Changing Business of Healthcare for Physicians 2.5 0.5 3.0 105/140 120/160 0HLTH0519 ers they had never met before was the Drafting Agreements That Make a Difference 2.0 2.0 70/100 85/120 0DRAFT0123 ultimate success! E-Filing in NYS Courts 2.0 70/100 85/120 0EFILE0518 Perhaps it was David M. Gross who 2.0 may have summed it up best, “It was a Landlord/Tenant: The Lease Has Been Breached, Now What? 1.0 1.0 35/50 50/70 0L/T0123 nice ‘perk’ event for Bar members, and it Law Office Management: Taking Charge! 1.0 1.0 35/50 50/70 0LOMO123 was nice to do something a little differ- Letters of Engagement & Retainer Agreements 1.5 0.5 2.0 70/100 85/120 0RETAIN0316 ent that wasn’t all about law or continu- General Practice 2.0 70/100 85/120 0MIL0503 ing legal education....” And while the Protecting Veterans & Active Duty Service Members 1.5 0.5 Islanders did not come through with a Your "First" Landlord/Tenant Case 1.0 1.0 35/50 50/70 DH110410 win, it was the perfect way to spend an Guardian Ad Litem 2.5 0.5 3.0 105/140 120/160 0GAL0920 evening with friends, family and col- Improving The Performance Of Your Law Firm 2.0 2.0 70/100 85/120 0FIRM0927 leagues. Practicing Law in a Fragile Economy 2.5 0.5 3.0 105/140 120/160 0FRAG1028 Receiverships in New York - Part 36 Certified Training 2.5 0.5 3.0 105/140 120/160 0REC0614 ADVERTISE IN THE The Write Stuff: Tips for Effective Writing in the Real World 1.0 1.0 35/50 50/70 0WRUITE0124 Immigration Immigration Interview - Domestic Issues 2.5 0.5 3.0 105/140 120/160 0IMMINT0318 Labor & Empl. Annual Supreme Court Review (Labor & Employment) 1.0 1.0 35/50 50/70 DH6810

CDs/DVDs Total: ______NASSAU ACADEMY Name Less 15% discount: ______OF LAW Call Subtotal: ______

Address ADD Sales Tax (631) NASSAU COUNTY BAR ASSOCIATION 15th & West Streets (8.625%): ______

737-1700 Mineola, NY 11501 Phone Email TOTAL: $ ______516.747.4464 Method of Visa MasterCard American Express 516.747.4147 fax Payment www.nassaubar.org Check payable to NAL (enclosed)

Credit Card # Allow 2-4 weeks for delivery * P = Professional Practice / Exp. date Security Code Practice Management E = Ethics & Professionalism

[email protected] Signature 18 ■ February 2011 ■ Nassau Lawyer WE CARE We Acknowledge, with Thanks, LICC Receives Grant Money from WE CARE Contributions to the WE CARE Fund The Nassau County Bar Association’s tious food they need.” charitable arm, the WE CARE Fund, Freeport Food Center manager Walter awarded the Long Island Council of Merna added, “We are profoundly grate- Donors In Honor Of Churches (LICC) a $10,000 grant to help ful for the Nassau County Bar Associ- Hon. Denise Sher Cleona Spano being honored by Columbian Lawyers’ the LICC feed individuals and families ation’s WE CARE Fund’s continued loy- Donors Speedy Recovery in crisis and provide other essential alty and compassion for the hungry social services for poverty-stricken resi- Nassau residents we feed. These grants Aaron Britvan Alan Snowe dents in Nassau County. The LICC, our help us to feed more than 13,500 guests Deena Ehrlich Aaron Golden region’s largest ecumenical and inter- every year.” Eugene & Estelle Ginsberg Lawrence Solotoff faith organization, operates an emer- The LICC unites diverse Christians gency food center located at 450 North to work together to serve people in Donors In Memory Of Main Street in Freeport, and provides need on Long Island and promotes Hon. Andrea Phoenix Armand D’Amato, father of Hon. Alfonse D’Amato other social services from its Hempstead understanding between Christians and Hon. Andrea Phoenix James Rice facility located at 1644 Denton Green on non-Christians. Through partnerships Hon. Andrea Phoenix Ruth Porter the corner of Fulton Avenue and with nearly 800 congregations and Hon. Andrea Phoenix Beulah Hagans Washington Street in Hempstead. more than 40 public and private health Ellen M. Rosen Mary Stilwell “We greatly appreciate WE CARE’s and social service agencies the LICC Ellen M. Rosen John Joseph Kostal generous donation,” said Rev. Tom provides emergency food, housing, Hon. Denise Sher Grace Adler Goodhue, the LICC’s Executive Director. medical assistance, transportation Hon. Denise Sher Frances Fortunato Freeman, mother of Simone Freeman “We fed 10 percent more hungry Nassau assistance, chaplaincy services in the Hon. Peter B. Skelos Hilda Lieberman, mother of Mark Lieberman residents in 2010 than we did the year jails, disaster relief, advocacy and edu- before, and 2009 was a record high as cation for a wide range of social issues In Memory Of Michael C. Axelrod well. This gift is extremely helpful in including affordable housing, adequate enabling us to keep up with the demand. health care, the environment, social, Hon. Ruth C. Balkin Patrick McCormack Thanks to folks like the Nassau County racial and gender equality, anti-pover- Hon. Stephen & Beth Bucaria Hon. Peter B. Skelos Bar Association, we can provide emer- ty and anti-bias programs, prison gency food to people more often, and reform, substance abuse and domestic In Honor Of Mary P. Giodano’s Installation As President we’ve been able to give them the nutri- violence programs. Of The Columbian Lawyers’ Association Of Nassau County

Genoa & Associates Hon. Denise Sher Susan Katz Richman Joan Robert It’s Heartfelt to support WE CARE

Best Wishes On Your Retirement, Nancy Fennell NCBA’s 23rd Annual Children’s Festival Kenneth L. Marten Staff of NCBA Hon. Claire Weinberg hosted by the WE CARE Fund and the Hon. Pauline Balkin Congratulates the following Being Recognized Community Relations & Public Education Committee as Honorees at the 112th Annual Dinner Dance

Hon. Aaron B. Cohen Stanley Friedenberg Salvatore Spano Hon. Dorothy D.T. Eisenberg Lawrence E. Elovich Hon. Marilyn R. Friedenberg Hon. Raymond Harrington Wednesday, February 23, 2011 Contributions may be sent to: NCBA, Attn: WE CARE, 15th & West Streets, Mineola, NY 11501 or at: www.nassaubar.org at Domus • 12:30 - 2 p.m.

This spectacular event, made possible by your contributions to WE CARE treats deserving and e! challenged youngsters to a fun- at filled afternoon including hot dogs, e D popcorn, ice-cream, clowns, gifts ve th and other entertainment! Sa Please open your hearts and wallets for WE CARE:

Gold Heart - $200 Silver Heart - $100 Caring Heart - $50 (suggested minimum donation)

WE CARE Hearts • Mail to: NCBA, Att: Elaine Leventhal 15th & West Streets, Mineola, NY 11501

August 1, 2011 Name NNassauassau County Bar Association’sAssociation’s StephenStephen WW.. SSchlisselchlissel Address WWEE CACAREARE GGolfolf & TTeTennisennis OOutinguting City, State, Zip

WE CARE Phone Amount of Donation $ Fund

L MiddleMiddle Bay CountryCountry ClubClub Oceanside, New YYorkYoork Contributions are tax deductible. Make check payable to WE CARE Fund. Nassau Lawyer ■ February 2011 ■ 19

conduct jury selection. There are no violence is not present, there may be no to Federal court. When I was practicing VIEW FROM THE BENCH ... alternate jurors; every juror will delib- uniformed officers present during the law more than 30 years ago, I sometimes erate. I usually use 10 jurors or 12 if I trial, only a U.S. Marshall outside the viewed some Federal judges as being Continued From Page 14 expect a longer trial. The minimum jury room during deliberations. inflexible. Those days are over. I predict judgment proceedings, giving the judge number of jurors in a civil case is six. If • Federal courts encourage the use that you will enjoy the experience, great flexibility and knowledge of the appropriate, I may request a stipula- of modern technology. All district court whether in a diversity case or one involv- case. With the fast track, a trial may be tion that 5 jurors sit. The goal is to and appellate attorney filings and court ing a Federal question. In my view, my scheduled within a month. Each judge achieve a fair and impartial jury. There notifications are performed electroni- colleagues in the Eastern District of New has individual procedural rules. For are 3 peremptory challenges per side, cally. Most documents are available on- York are among the finest trial judges in example, I ask attorneys to file briefs with discretion to increase that number line to anyone with a PACER account. the nation as measured by their scholar- no longer than 25 pages and to use no In the courtroom, video depositions and ship, dedication and judicial tempera- footnotes. testimony are not uncommon, particu- ment. • In the Eastern District, all cases In civil cases, I have my law larly for expert witnesses and situa- One avenue to experience the are automatically referred to a magis- clerks conduct jury selection. tions involving distantly located rewards of Federal court work is to trate judge through the discovery, and inmates. In addition, exhibits are often take on pro bono cases. While working the District Judge does not become There are no alternate “published” to the jury through on a pro bono matter has its own directly involved until the case is ready advanced technology, particularly in unique benefits, financial rewards are for trial except for dispositive motions, jurors; every juror will the well-equipped courthouse at also possible. A few years ago, I had a such as one for summary judgment. Central Islip. Section 1983 case and the plaintiff • There are virtually no interlocuto- deliberate. I usually use 10 • The taking of notes by jurors dur- could not obtain an attorney after five ry appeals in Federal civil matters. ing trial is encouraged in Federal court, years of trying. I appointed pro bono State court is an entirely different jurors or 12 if I expect a especially in complex cases. The court counsel and the jury rendered a verdict story. even provides pads and pens. I do not of $680,000 for the plaintiff. I awarded • All civil matters in Federal court longer trial. The minimum allow the jurors to ask questions during attorneys’ fees of $220,000 to pro bono seeking less than $100,000 are trial. Many times, trial lawyers inten- counsel. In another case involving the required to undergo mandatory arbitra- number of jurors in a civil tionally decline to ask certain questions notice requirement to employees before tion. The threshold amount in State for tactical reasons and jurors should a plant closing, the jury rendered a ver- court is substantially less, and applies case is six. not intrude in that process, especially dict of $28,000 and I awarded $117,000 generally only in the lower courts. in a criminal case. in counsel fees. • The jury demand in Federal court if appropriate. In Federal court, the ver- • As for summations, in civil cases My final advice for those of you who must be made together with the first dict must be unanimous; in State court, the judge determines the order, usually plan to litigate cases in Federal court is pleading or within a short time after a 5/6th verdict is sufficient. allowing a brief rebuttal by the plain- that you learn the Federal Rules of removal from the State court. In criminal cases, the judge super- tiff. Evidence, come prepared and arrive on • In a Federal court, as opposed to vises voir dire, or the Magistrate Judge • During jury deliberations in time. If you can accomplish these rea- State court, jury selection is always will do so. Defendants are entitled to 10 Federal court, the written charge is sonable goals, you will find yourself conducted with judicial supervision, peremptory challenges and the govern- sent in with the jury. I always do that, most welcome in the Federal courts. and the attorneys do not address the ment has 6, plus more for each side to and encourage the jurors to have loose- prospective jurors directly. The attor- select alternates. leaf books containing the evidence at United States District Judge Arthur D. Spatt neys may submit question requests to • There are usually no court officers their disposal during the trial and formerly a New York State Supreme Court Justice, in the 10th Judicial District from the court. In the Eastern District, there or clerks in the courtroom during a deliberations. 1978 to 1982. Administrative Judge of is a district-wide jury pool that includes Federal trial, in contrast to State prac- My Final Advice: Nassau County, Associate Justice, the Brooklyn, Queens, Staten Island and tice. Attorneys must mark, handle and Come to Federal Court Appellate Division, from 1986 to 1989, and both Long Island counties. maintain their own exhibits. Even in since 1989, United States District Judge, In civil cases, I have my law clerks criminal cases, when the potential for I want to encourage all of you to come assuming senior status in 2004.

questioned under what authority could SAVE THE DATE JURISDICTION ... Arizona mandate that employers use of the E-Verify7 system when the federal Continued From Page 9 government has made participation in The Nassau and Suffolk County Chapters of the government. Justice Scalia questioned this program voluntary. Women’s Bar Association of the State of New York Mr. Phillips as to why this issue is not In apparent agreement with Justice and the Nassau and Suffolk County Bar Associations simply a licensing law that allows regu- Ginsberg’s question, Justice Kennedy lation by the State. In addition, in a opined that the Arizona law is a “classic Celebrate remark by Justice Scalia to the issue of example of a State doing something that enforcement, the Justice reasoned that is inconsistent with a Federal require- the States have undertaken to pass and ment.” Justice Breyer also questioned Women’s History Month enforce immigration related laws due to the enormous discrepancy in penalties the federal government’s failure to imposed under the federal law versus March 30, 2011• 6 -9 p.m. enforce said laws and restrictions. Arizona law. Ms. O’Grady’s response was Neal Kumar Katyal, Esq., Acting that the savings clause permitted the Melville Marriott Solicitor General of the United States, States to impose these penalties, and also argued the case on behalf of the fed- that there were no new obligations eral government, and in support of the being imposed on employers or individu- Petitioners. He reemphasized that any als by Arizona that were not already READY, SET, LEAD! state sanction is preempted and immi- imposed by the federal government. Empowering Women in the Political Process gration related work authorization is Employers, attorneys, judges, legal expressly under the jurisdiction of the scholars and foreign nationals are all Welcoming Remarks: federal government. Since Congress for- anxiously awaiting the Supreme Court’s mulated and passed IRCA, including fed- ruling because it will determine in Hon. Sandra Day O’Connor (via video) eral sanctions on individuals and/ or cor- whose court the ball falls, state or feder- First Woman United States Supreme Court Justice porations that employ unauthorized al, and consequently whose rules must workers, any employment-based law that be followed. This is one of the most high- Featuring: can lead to federal violations is under the ly charged issues in Immigration Law CNN Reporter Sandra Endo, Moderator sole and exclusive domain of the federal today. & Political Party Leaders government, argued Mr. Katyal. Howard R. Brill, Hempstead, N.Y. concentrates In response, Mary R. O’Grady, Esq., his nationwide practice in Immigration and Solicitor General of Arizona, represent- Naturalization Law. Mr. Brill is a former Chair of Distinguished Panelist: ing the Respondent, argued that States the NCBA Immigration Law Committee and, Marie Wilson have policing powers to regulate the con- currently, serves as Co-Chair of the NCBA duct of employers within a State’s juris- BOLD Task Force. Founder of The White House Project and author diction. Justice Ginsberg asked Ms. 1. Hines v. Davidowitz, 312 U.S. 52 (1941). of Closing The Leadership Gap: Add Women, Change Everything O’Grady to respond to the apparent con- 2. Toll v. Moreno, 458 U.S.1 (1982). tradiction, in that the States cannot 3. Chicanos v. Napolitano, 544 F.3d 976 (9th Cir. 2009). $80 per person. Make checks payable to SCWBA and mail to impose a fine under IRCA, but, according 4. U.S. v. Arizona, 703 F. Sup.2d 980 (D.Ariz., July 28, 2010). Lora Rosenthal, Executive Director, 128 Carleton Avenue to Ms. O’Grady, can revoke a business 5. Lorano v. Hazelton, 2010WL3504538 (3rd Cir., East Islip, NY 11730 or license entirely if there are immigration September 10, 2010). related unauthorized employees. Ms. 6. Chamber of Commerce v. Whiting, 130 S.Ct. 3498 email [email protected] O’Grady replied that there was no con- (2010). 7. E-VERIFY is a free, Internet based system oper- $720 for a table of ten. Register early. tradiction since the States have authori- ated jointly between the United States ty to impose sanctions pursuant to their Immigration and Citizenship Services (USCIS) Seating is limited. Sponsorship opportunities available. licensing laws. Justice Ginsberg also and the Social Security Administration (SSA). 20 ■ February 2011 ■ Nassau Lawyer

NLRA’s protections and remedies to purposes of Labor Law §§200, 240(1) and eligibility.”25 LOST WAGES ... undocumented workers in the same man- §241(6).15 Accordingly, the Court held that New ner as to other employees.12 The Court addressed the Supremacy York Labor Laws apply to all workers, Continued From Page 9 The Hoffman Court held that to allow Clause of the U.S. Constitution and dis- whether documented or undocumented. Control Act (IRCA).6 According to the “…the Board to award backpay to illegal cussed “express preemption,” “field pre- There has been a spirited debate over Balbuena Court, “[b]oth Congress and the aliens would unduly trench upon explicit emption” and “conflict preemption.” With the reach of Hoffman.26 It will be inter- President expressed the view that ‘[t]he statutory prohibitions critical to federal respect to “express preemption,” the Court esting to monitor cases in New York principal means of closing the back door, immigration policy. It would encourage found that IRCA does not contain an involving undocumented aliens, such as or curtailing future illegal immigration, the successful evasion of apprehension by express statement that it intended to pre- where an undocumented alien provides [wa]s through employer sanctions’… that immigration authorities, condone prior empt state laws regarding the permissible an employer with false documents. For were intended to ‘remove the incentive for violations of the immigration laws, and scope of recovery in personal injury example, what will be the exposure for an illegal immigration by eliminating the job encourage future violations.”13 actions predicated on state labor law employer who knew or should have opportunities which draw illegal aliens In the Balbuena case, the defendant claims.16 Instead, the Court reasoned that known that the documentation provided into the country…. To attain this goal, the argued that IRCA, as construed by Congress only preempted the imposition by the new employee was false? What is most important component of the IRCA of civil or criminal sanctions on employers very clear is that it is critical for employ- scheme was the creation of a new of undocumented aliens, stating that the ers to remain current about the require- ‘[e]mployment verification system’ plain language appears directed at a ment to be vigilant in verifying that all designed to deter the employment of penalty or coercive measure such as a fine employees have provided them with prop- aliens who are not lawfully present in the for hiring undocumented aliens.17 er documentation prior to working. United States and those who are lawfully The Court then addressed “field pre- David G. Gabor Mediator and partner at the 7 present, but not authorized to work. emption” and found that there was noth- Law Firm of Gabor & Gabor in Garden City Under this system, aliens legally ing in the legislative history of IRCA indi- concentrates in the areas of Labor & Em- present and approved to work cating that Congress intended to affect ployment Law and is a member of the NCBA are issued some form of docu- state regulation of occupational health Membership Committee and the BOLD Task mentation demonstrating and safety or to limit labor protections of Force. their eligibility status.8 The existing laws.18 goal was that the individual Finally, the Balbuena Court addressed 1. The Immigration Reform and Control Act of 1986 (8 USC §1324a). had to present documentation to “conflict preemption” and whether the 2. 8 USC §1324a[a][1][B][1]; §1324A[E], [F]; Coque the employer before the employer award for lost wages to an injured undoc- v. Wildflower Estates Developers, Inc., 58 A.D.3d could hire the individual. If the umented alien would conflict with or oth- 44, 49, 867 N.Y.S.2d 158, 163 (2d Dept. 2008). required documentation is not present- erwise erode the objectives of IRCA in a 3. Id.; 8 USC §1324c[a]; 18 USC § 1546[b]. 9 4. Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 845 ed, the alien cannot be hired. manner sufficient to surmount the strong N.E.2d 1246, 812 N.Y.S.2s 416 (2006). The Balbuena Court noted that “[i]t presumption against preemption.19 The 5. Id., at 351; U.S. Constitution, Article 1, §8[4]. was against this federal statutory back- Balbuena Court was concerned that 6. Balbuena, at 352; Pub. L. 99-603, 100 U.S. Stat. drop that the Supreme Court decided Hoffman, precludes an undocumented employers would have less incentive to 3359, as amended, 8 U.S.C. §1324a, et seq. 7. Balbuena, at 353. Hoffman Plastic Compounds, Inc. v. alien from recovering lost wages in a state comply with the Labor Law if the rights of 8. Id., 8 USC §1324a[b][1][B], [C]. 10 20 NLRB (citations omitted). In Hoffman, personal injury action. The defendant rea- undocumented aliens were to be limited, 9. 8 USC §1324a[a][1]. the Supreme Court was faced with an ille- soned that such an award would be a and that the “… absolute bar to recovery of 10. Hoffman Plastic Compounds v. NLRB, 535 US gal alien who presented an employer with penalty upon an employer that is express- lost wages by an undocumented worker 137 (2002). false documents in order to gain employ- ly preempted by IRCA. The defendant would lessen the unscrupulous employer’s 11. Id., citing Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ment. The employee was laid off after sup- also argued that permitting the illegal potential liability to its alien workers and 12. Id. porting a union-organizing campaign. The alien to recover lost wages would contra- make it more financially attractive to hire 13. Id. at 138. NLRB found that the layoffs violated the vene the purposes and objectives of IRCA undocumented aliens…”21 In addition, the 14. Balbuena, at 355. National Labor Relations Act and ordered in that it would condone past transgres- court was concerned that, because undocu- 15. Id. 16. Id. at 357. back pay. At a hearing before an sions of immigration laws and encourage mented aliens are willing to work in more 17. Id.; 8 USC §1324a[h][2]. Administrative Law Judge the employee future violations.14 dangerous, undesirable jobs and for less 18. Balbuena at 357. testified that he was born in Mexico, that The plaintiff in Balbuena argued that money that they would increase employ- 19. Id. at 358. he was never legally admitted to or he should be able to recover for earning ment levels of undocumented aliens.22 The 20. Balbuena at 359. 21. Balbuena at 359. authorized to work in the United States capacity as a result of defendant’s failure Supreme Court has recognized the broad 22. Id. at 360, citing Sure-Tan, Inc. v. NLRB, 467 and that he gained employment only after to adhere to workplace safety require- authority that states possess to regulate U.S. 883, 893-894 (1986). furnishing a birth certificate that ments established under the state Labor the employment relationship to protect 23. Id., De Canas v. Bica, 424 U.S. 351, 356 (1976). belonged to a friend born in Texas. The Law. According to the plaintiff, precluding workers in their states.23 Immigration 24. Continental PET Tech., Inc. v. Palacias, 269 Ga.App. 561, 562-563, 604 S.E.2d 627, 630 ALJ found that the individual was pre- a lost wage claim would make it more laws do not intrude into the area of what (2004), Cert Denied, 546 U.S. 825 (2005) 11 cluded from gaining any form of relief. financially attractive to hire illegal aliens, protections a State may afford these 25. Id. The Board reversed with respect to back thereby undercutting the central goal of aliens.24 26. Id., at 358, citing Rosa v. Partners in Progress pay finding that the most effective way to the federal act, and would further provide A sharp distinction noted by the Court Inc., 152 N.H.6, 868 A.2d 994 (2005); Correa v. advance the immigration policies embod- less of an incentive to comply with state was the fact that the Balbuena plaintiff, Waymouth Farms Inc., 664 N.W.2d 324 (Minn.2003); Farmers Bros. Coffee v. Workers’ ied in the IRCA was to provide the labor law requirements contrary to the unlike the undocumented alien in Compensation Appeals Bd., 133 Cal.App.4th Hoffman, did not commit a criminal act 533, 35 Cal.Rptr.3d 23 (Ct.App.2005); Crespo under IRCA. IRCA does not make it a v. Evergo Corp., 366 N.J.Super. 391, 841 A.2d LAW YOU SHOULD KNOW crime to work without documentation. 471 (App.Div.2004), certification denied 180 NCBA New Members N.J. 151, 849 A.2d 184 (2004); Tyson Foods, LAW YOU SHOULD KNOW “We see no reason to equate the criminal Inc. v. Guzman, 116 S.W.3d 233 (Tx.Ct.App. LAW YOU SHOULD KNOW misconduct of the employee in Hoffman to 2003); Cherokee Indus., Inc. v. Alvarez, 84 P.3d We welcome the following new members the conduct of the plaintiffs here since, in 798 (Okla.Ct.Civ.App.2003); Madeira v. celebrating 20 years! the context of defendants’ motions for par- Affordable Hous. Found., Inc., 315 F.Supp.2d Attorneys 504 (S.D.N.Y.2004); Veliz v. Rental Serv. Corp. on 90.3 FM WHPC or www.itunes.ncc.edu tial summary judgment, we must pre- USA, Inc., 313 F.Supp.2d 1317 (M.D.Fla2003); Michael J Alber sume that it was the employers who vio- Hernandez-Cortez v. Hernandez, 2003 WL Andrew S. Goodstadt Hosted by: Kenneth J. Landau, Esq. lated IRCA by failing to inquire into plain- 22519678, 2003 U.S. Dist LEXIS 19780 (U.S. tiffs’ immigration status or employment Dist. Ct. D.Kan., Marten, J., 01 Civ 1241). Eliezer Hecht Shayne, Dachs, Corker, Sauer & Robert E. Hornberger Jr. Dachs, Mineola Margaret Weld Korson David E. Mollon Romance in the DID YOU KNOW? Norman Robbins Danielle Seid Amanda Wolf Workplace NCBA Members can now place county wide legal notices in Mon., Feb. 14 • 4 p.m. the Nassau Lawyer. Students Tues., Feb. 15 • 12 noon Legal notices in Nassau Lawyer can only refer to: Danielle Becker Sun., Feb. 20• 7 a.m. LLCs G LLPs G Liquor Licenses G Private Foundations James J.C. Byrne ALL Daniel A. Glass March is Matrimonial Month. Programs notices including Bankruptcies & Foreclosures Alex Lo will cover divorce mediation and other can also be placed in Long Island Business News. Maria Miglino aspects of divorce law. To place an ad contact: Tillie S. Mirman on 90.3 FM radio or VOICESTREAM over the [email protected] Erik Seidel internet at or 631-737-1700 www.ncc.edu/whpc In Memoriam and hit listen now link Michael C. Axelrod below the Spencer Steele microphone box Nassau Lawyer ■ February 2011 ■ 21

ment credential, i.e., whether there is any basis for the of 9/11 continues to reverberate like some “Doppler” WORLD ... applicant’s motives to come here and propound hostility effect over all Americans’ lives in ways few could have against the U.S. imagined 20 years ago. And as the venerable historic Continued From Page 3 There are perhaps two remaining Visa types that so gatekeeper for our nation’s social and economic welfare argue that porous borders per se are not the core problem; far have not been affected as much by a pervasively reac- over the past 300 years, and the cradle of conscience for rather, it is the lack of fair play toward new immigrants tive post-9/11 mindset. One is the post-NAFTA TN Visa, humanitarian outreach to legions of “huddled masses” who, unable to “legalize” their status, are condemned to allowing a Canadian citizen to work here and file for per- pining for our teeming shores, Immigration Law today live a shadow existence lives, undermining our open soci- manent residence. The other involves dual citizenship, has assumed a new, rather raw posture in our body ety. Proponents of strong borders, however, argue that in procedure for “legalizing” foreign documents for the U.S. politic: to defend and protect our country not only from our post-9/11 world border insecurity has become the or, conversely, affixing an Apostille to official U.S. docu- terroristic foreign incursions, but also from internal cor- paramount threat to national security from organized ments for submission to Geneva Convention-signatory rosion by aliens in whose hearts we impute little sympa- and random terrorists alike, who would penetrate our countries. thy for preserving the best interests of our naturally tol- space to cause injury and destruction to our way of life, In the arena of international business as it intersects erant and patient fellow denizens. and to democracy in a land renowned for its Rule of Law. with Islamic (shari’ah) precepts, the post-9/11 environ- Andrij V.R. Szul, Ph.D., J.D., a 30 year practitioner in the area Consequently, the entire menu of U.S. visa categories ment already has caused a significant ripple effect across of business and international law serves as Chair of the has undergone not just refinement, but redefinition, as not only commercial enterprises, but even in the usually Consular Affairs Group of the NCBA BOLD Task Force. indexed to “national security” concerns at every levels. Of comfortable, insulated U.S. non-profit (NPO) corporate 1. With apologies to the soap serial As the World Turns, which aired on the two Visa categories (non-immigrant Visas for tempo- world. The transfer of funds abroad has become a partic- CBS-TV from 1956 to 2010, passed its 10,000th episode in 1995 and 50th rary stay, and immigrant Visas for permanent residen- ularly “hot button” issue. Homeland Security and anni versary in 2006, and was retired on September 17, 2010. cy).The granting of Visas in all categories, – B-1 Immigration authorities alike are pro-actively investi- 2. The reforms of decentralization and democratization that emerged dur- ing the era of “perestroika” (reconstruction) and “glasnost” (greater free- (Business) B-2 (Tourist), H-1B (Employ ment of creden- gating, preventing and punishing money laundering, doms) under Mikhail Gorbachev, General Secretary of the Central tialed professionals) and H-2B (skilled and unskilled fraud and other economic crimes where an outcome may Committee of the Communist Party of the U.S.S.R. (1985 until 1991), workers), C-1 (Transit for passing through to another be support of a terroristic entity or activity. In recent and as the last head of state (1988 until its collapse in 1991), President (1990-91). This perestroika began as a dissembling process of dysfunc- country), F-1 (Student) and J-1 (Exchange Visitor), – is years, several Muslim NPOs, in particular, have actually tion by the totalitarian government until 1991, when the first “domino” predicated on whether the applicant could become a lost their exempt status or were shuttered by criminal fell, and most of the fifteen former Soviet “Republics” and three “inde- threat to our economic and national secu- rity; rather than solely a presumptively valued contributor to our way of life. The one possible exception to this per- spective may be the Green Card Lottery (“Diversity Lottery”) program, where indi- viduals from around the world submit applications by email and, upon winning a green card by lottery chance, are permitted to emigrate with their families, irrespec- tive of their work skills, education or rea- sons for coming here.8 The program was created to provide additional opportunities for individuals from selected “listed” coun- tries (i.e., other than the countries that already are sending us large groups of immigrants). Yet given the Diversity Visa protocols, a considerable level of scrutiny is applied a priori before final admission approval. And practically in every case, even the slightest blemish on the appli- cant’s background, even from many years ago in the person’s youth back home, may summarily disqualify the entire family. Accordingly, in addition to the usual crimi- nal background and personal character checks, important question concerning the potential for lottery winners to harbor ter- roristic inclinations must now be disposi- tively addressed pre-emptively by counsel during the pre-admission screening, all to the full satisfaction of U.S. immigration authorities to a justice authorities. If ultimately proven unfounded, such pendent” Baltic states declared their independence and sovereignty, degree previously unheard of. Perhaps the applicant government actions philosophically contradict the tradi- eventually to be recognized as sovereign nation-states by the interna- tional community. While Lithuania, Latvia and Estonia had been illegal- should not be faulted that much for feeling “guilty” until tional view under IRC 501(c), where the legislative intent ly “incorporated” in 1940 into the U.S.S.R. under the notorious Molotov- proven innocent. for a NPO (whether U.S.-based or cross-border) to be Ribbentrop Pact of 1939, the fifteen Republics were simply opportunisti- Even garden variety family-based Visas have been accorded exempt status as a “public charity” hinges on cally overrun and occupied by communist forces during the war. 3. 9/11 was a series of four coordinated jihadist suicide attacks by nine- affected. For example, the processes for 1-R Visa for the fact that, historically, NPOs have provided valuable, teen al-Queda-based terrorists, all but one of them Saudis, who struck immediate relatives (limited to spouses, unmarried chil- lasting services and goods to America’s commonwealth in the United States. On October 29, 2004, as reported by CBS News, al- dren under age 1, adoptable or adopted orphans, and par- the realms of culture, education and social welfare. In the Queda leader Bin Laden claimed responsibility for 9/11, ents of U.S. citizens over age 21), a well as the more www.cbc.ca/world/story/2004/10/29/ binladen_message041029.html. past two years the IRS has begun weaving a black 4. The USA Patriot Act (commonly known as the “Patriot Act”) was extended “Family Preference” categories (for more dis- widow’s cobweb by reconstituting a formerly meek Form signed into law by President George W. Bush on October 26, 2001. The tant family members, but excluding a grandparent, aunt 990 into a severe front line compliance regime under title of the Act is based on an acronym which stands for: Uniting and or uncle, cousin or in-law) now entail colloquies specifi- color of the NPO’s annual tax return. Today an entity Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.L. 107-56; full text of cally meant to identify profiles of individuals who may must not only document a plethora of newly propounded enrolled bill H.R. 3162 at: www.GovTrack.us. pose even the slightest potential, if not actual past given (though still too abstract for comfort!) “good corporate 5. These two agencies, together with six others Customs and Border history, as a national security threat. While, historically, governance” practices to warrant continued exempt sta- Protection (CBP), Federal Emergency Management Agency (FEMA), Transportation Security Administration (TSA), U.S. Coast Guard, U.S. vetting of this kind is not new, today it is far more strin- tus. In addition, the 990 effectively must serve to “dispel” Secret Service, and Office of Inspector General (OIG) – were rejiggered gently enforced. any suggestion that the NPOs activities could support and nested into the new Department of Homeland Security, http://www. In the Visa premised on a valid marriage to a U.S. citi- illegal conduct, especially through foreign funds dhs.gov/index.shtm. All government immigration administrative operations were combined with enhanced counterpart law enforcement resources. zen, in the new K-type spousal adjustment process, just as exchanges or anything else that could foster some terror- 6. Such as the passage in 1986 of the Immigration Reform Act with the K Visa for a fiancé, the scrutiny of immigration istic outcome. Immigration Reform and Control Act (IRCA), also “Simpson-Mazzoli authorities is focused on disproving that the purported Similarly, the years-long metamorphosis of a typical Act,” Pub.L. 99-603, 100 Stat. 3359. marriage is a sham, and/ or whether any terroristic ties are DUI case involving no serious personal injury or property 7. The “Jackson-Vanik Amendment” (1974) was intended to pressure the U.S.S.R. into allowing Soviet “refusnick” Jew and other religious involved under color of the sham. Yet it is still difficult to injury, treated as a minor infraction with a desk ticket or minorities to migrate to the U.S. and Israel in the best spirit of Emma prove a “negative.” All this in the name of protecting us mild misdemeanor, today often is accorded far higher mis- Lazarus. Unfortunately, since then this law has become a particularly from undesirable criminal or terrorist elements stepping demeanor or felony treatment, resulting in severe denials odious anti-democratic relic of the Cold War, twisted to foment some of the most partisan of recent immigration controversies. The through our “back” doors by marital ruse. of liberties (i.e., loss of driving privileges, incarceration). Amendment is contained in Title IV of the 1974 Trade Act (following Likewise, the employment-based Form I-140 Green But because of the spreading plague of undocumented the Soviet American Trade Agreement of 1972). The 1974 Act was pass- Card process has become more arduous. The applicant aliens driving around without proper operators’ licenses ed unanimously by both houses, and signed by President Gerald R. for either the H-1 or L-1 Visa must prove, as usual, not Ford on January 3, 1975. H.R. 10710, esp. §402. or in unregistered or uninsured vehicles, suddenly the 8. “Diversity Lottery Program” (DLP) (1990), see: Im migration Act of 1990 only his or her unique work qualifications by advanced DUI bar has had to recalibrate its defense strategy (INA), below. The U.S. issues 55,000 Visas annually. The DLP, to be applied credentials or some other metric. But now, driven by post against huge new stakes by transcending criminal law, for under Form I-485, was created in response to the greatly increased 9/11 economic and labor conditions which have been but incorporating a sharpened awareness of DUI convic- number of worldwide H-1B Visa applicants. With over 65,000 such visas already issued each year, the demand far exceeds this quota in that some- drastically exacerbated since 9/11 with security fears tions as likely summary triggers for grave Immi gration times 65,000 people have applied on the same day. Immigration and being abated at confiscatory cost, the applicant not only Law consequences. Hence, in addition to felony charges, Nationality Act (INA) (1965), §203(c), et. seq. Immigration Act of 1990; must receive prior certification by the labor department the undocumented DUI defendant may face the two high- §131 (Pub. L. 101-649) amended INA §203. See also: http://www.dvlottery. state.gov, http://travel. state.gov/visa/ immigrants/ types/types_1318.html (i.e., that there is no one already living here with equiva- est penalties under current Im migration Law, deportation and http://travel.state.gov/visa/immigrants/types/ types_1322.html. For a lent skills and credentials), but the vetting process seeks and a long-term statutory future re-entry bar. list of countries by region whose natives qualify for the DLP, see: http:// to divine psychologically beyond fairly objective employ- So “As Our World Turns” today, the horrific cataclysm travel.state.gov/pdf/1318-DV2012 Instructions-ENGL.pdf. 22 ■ February 2011 ■ Nassau Lawyer JUDGES SWORN IN

President Gann at the January 11, 2011 induction ceremony of judges. L-R: Hon. David W. President Marc C. Gann at the January 10, 2011 induction ceremony of judges. L-R: McAndrews and Hon. Helen Voutsinas, District Court, Hon. Merik Aaron, Family Court. President Gann, Hon. Edward McCarty, Surrogate, Hon. Norman Janowitz and Hon. Daniel Palmieri, Supreme Court, Hon. Anthony Marano, Administrative Judge, Courts of Nassau County.

sular officer may assist in arranging for counsel and in court. The Supreme Court in Sanchez-Llamas v. NOTIFICATION ... the preparation of the defense, by, for example, locat- Oregon4 held that a violation of the Vienna ing interpreters, consultants, investigators and by Convention alone will not support suppression of post Continued From Page 11 obtaining information from the foreign country. The arrest statements. In De Los Santos Mora v. New treaties not only create obligations for the government officers may also provide information regarding for- York,5 the Second Circuit held that “Article 36's obli- to notify the consulate, they also create rights for con- eign laws and customs and verifying the authenticity gation to inform detained aliens of the prospect of con- sulates to contact their nationals. of documents from the home country. The consular sular notification and access cannot, when violated, be Consular officers are entitled to communicate with officer may also seek to ensure that the national vindicated by a private action for damages.” And the their nationals in detention. Even if the detainee does receive a fair trial by monitoring the trial; communi- Second Circuit in United States v. Bustos De La Pava6 not want it, treaty obligations may still entitle con- cating with defense counsel and the prosecutor. has also held that the Government's failure to comply sular officers to at least one face-to-face visit. A defense attorney should obtain his client’s con- with the consular-notification provision is not grounds Such communication is subject to the security pro- sent before requesting or accepting the consular offi- for dismissal of an indictment. Hence, failure to raise cedures of the place of detention. Such procedures may cer’s assistance, while under U.S. law the consular offi- a claim for a Vienna Convention violation will not sup- limit visiting hours and what materials may be cer has no duty to the foreign national. Since consular port a claim of ineffective assistance of counsel. brought into the visiting area. However, the security officials can, and frequently do, assist American pros- In United States v. Gomez7 then U.S. District Judge procedures may not be so restrictive as to defeat the ecutors and law enforcement officers, extreme care Denny Chin8 said that defense counsel’s failure to purpose of treaty to allow communication should be taken in what information is disclosed to the move to dismiss an indictment under Article 36 of the Consular officers may arrange for legal counsel or officers by the defense. While the consular officer may Vienna Convention does not constitute ineffective provide other services to detainees, such as facilitating have immunity concerning the exercise of its duties, assistance of counsel “[b]ecause a foreign national can- communication with family in the detainees home the officer may waive that immunity and divulge con- not seek dismissal of an indictment on the basis of an country. Of course, the consular officer may not act as fidences to American prosecutors and law enforcement alleged failure of the Government to notify him of his an attorney for the detainee. In an appropriate case, a officers. right to consular notification under the Vienna defense attorney should consider contacting the con- In a death penalty case, in particular, the consulate Convention.” And the burden is on government may provide substantially greater assistance. Most authorities, not the defendant's attorney, to contact foreign countries oppose the death penalty and will the defendant's home country.9 assist their nationals to avoid it. Procedures in feder- Counsel, nevertheless, may want to raise Vienna al death penalty cases permit defendants to offer a Convention violations especially in cases with demon- wide range of mitigating evidence, which consulates strable prejudice. Courts have left the door open for may assist in obtaining foreign records in support of remedies on this particular theory, if, in appropriate mitigation, i.e., a non-death sentence. Mitigation cases cases, it is not based on Article 36 issues.10 often rely on documents such as school records, birth As discussed, while consular notification is a mat- certificates, health and military records, as well as ter of foreign relations and not individual rights, a criminal history checks (which may all be negative.) practitioner should not ignore these treaty obligations Of course, competent counsel will not rely on promises because they may still bear some effect, whether neg- of political entities who may have competing interests. ative or positive, on the a foreign national’s case. The consular officer may seek to ensure that the Peter J. Tomao has a multi-jurisdictional practice in criminal national is treated properly in prison; for example, defense, tax and commercial litigation, is a member of the being allowed to engage in religious practices. The con- NCBA BOLD Task Force, past chair and directorof the Federal sular officer may also assist with the repatriation of Courts Committee. the national after the disposition of the case. At the same time, the practitioner should not ignore 1. 28 CFR § 50.5. the potential negative consequences of consular notifi- 2. U.S. Constitution, Article VI, clause 2 (“all cation. In some cases, consular notification may result Treaties… shall be the supreme law of the land.”) sulate to urge it to exercise its rights to contact the in additional penalties or persecution by the home 3. To establish a claim of ineffective assistance of detainee. The Consular Officer will decide whether, country. In other cases, the arrest may result in perse- counsel, a convicted defendant must show that: 1. when and how to respond to notification that a nation- cution of the client’s family members in the home Counsel’s performance fell below an objective stan- al has been detained, subject to its own laws, customs country. dard of reasonableness, and 2. but for the deficien- and resources. There are consequences in criminal proceedings While there are certain consequences in criminal when an arresting agency fails to notify a Foreign cy, there is a reasonable probability that the out- proceedings of notification of Foreign Consuls, con- Consul. The consequences however are a matter of for- come of the proceeding would have been different. sular notification should have no direct effect on the eign relations only, not individual rights. The purpose See Strickland v. Washington, 466 U.S. 668, 687-96 criminal proceeding as the foreign country has no of notification is merely to allow a foreign (“sending”) (1984); United States v. Bustos De La Pava, 268 standing to participate in the criminal case. While con- government to ensure that its national, temporarily F.3d 157, 163 (2d Cir., 2001) sular officers may not practice law in the United residing in the “host” country, are properly represent- 4. 548 U.S. 331, 350 (2006). States, in rare instances they may choose to partici- ed. Nevertheless, counsel, may want to raise Vienna 5. 524 F.3d 183, 188 (2d Cir.), cert. denied, __ U.S. __, pate in a friend of the court status, for example, to pro- Convention violations especially in cases with demon- 129 S. Ct. 397 (2008), vide information of their country’s law and customs. strable prejudice. 6. 268 F.3d 157, 165 (2d Cir. 2001) Consular notification obligations do not affect the Courts have routinely rejected challenges from for- 7. 644 F. Supp. 2d 362, 372 (S.D.N.Y. 2009) rights of the person arrested. If the person has a right eign nationals concerning their convictions and/or sen- 8. Judge Chin is now a member of the Second Circuit. to counsel, s/he would still be entitled to a court tences on the basis that the consulate was not notified, 9. Sandoval v. United States, 574 F.3d 847 (7th Cir. 2009) appointed attorney. While the consular official may even though such post-conviction relief strategies gen- assist the national in obtaining counsel, there is no erally are based on ineffective assistance of counsel 10. De Los Santos Mora v. New York, 524 F.3d 183, obligation to do so. As a result, courts should follow arguments. 209 (2d Cir. 2008) and cases cited therein. Also their usual procedures in appointing counsel. Courts have generally held that consular notifica- see: Jogi V. Voges, 480 F.3d 822, 835-836 (7th Cir. Consular notification, however, may have some tions obligations in the Vienna Convention may not 2007) (The Vienna Convention does not claim indirect effect on the criminal proceeding. The con- create individual rights which may be enforced in under 42 United States Code §1983). Nassau Lawyer ■ February 2011 ■ 23 LAWYER TO LAWYER

COMMERCIAL ARBITRATION ENVIRONMENTAL LAW PERSONAL INJURY AND MEDIATION AND LITIGATION

MICHAEL A. LEVY, J.D., LL.M. (Taxation) FREDERICK EISENBUD, ESQ. DAWN MUNRO, ESQ. Practicing Environmental and Municipal Law Since 1984 Experienced commercial arbitrator and mediator Co-Chair, Environmental Committee, HIA Per Diem Services Extensive background in transactional law and Ready to assist you or your client with: Experienced Personal Injury Attorney commercial/Surrogate’s Court litigation. Highly Civil • Criminal • Administrative • Municipal skilled complex commercial case arbitrator – domes- Hazardous Waste/Oil Spill Cost Recovery Litigation Available For Motions, Conferences, tic and international cases. Member, mediation panel, Environmental Issues In Commercial Real Estate Hearings, Depositions U.S. District Court, Eastern District of New York Law Office of Frederick Eisenbud THE ENVIRONMENTAL LAW FIRMSM Nassau Queens Brooklyn Commercial Arbitration and Mediation Services, Inc. 6165 Jericho Turnpike, Commack, NY 11725-2803 Bronx Westchester “Arbitration and mediation the way they were intended” Phone: (631) 493-9800 Fax: (631) 493-9806 [email protected] (516) 365-3000 WWW.LEVYSCHNEPS.COM E-Mail: [email protected] www.li-envirolaw.com 516-314-8559 LEGAL WRITING/ DEFENSE ATTORNEYS APPELLATE PRINTING TRADEMARK ATTORNEY

RAISER & KENNIFF, PC MITCHELL DRANOW, ESQ. ROBERT S. BRODER, P.C. NEW YORK’S CRIMINAL DEFENSE TEAM Legal Writing and Appellate Printing Experienced Trademark Attorney Former Assistant District Attorneys, U.S. Army Judge Advocates Serving the Nassau Community for 19 years Felonies Misdemeanors White Collar Federal $3250 Fee for Writing Briefs and Printing Availability/Clearance Searches Application Prosecution All Aspects of Litigation and Appeals Maintenance Filings TTAB Proceedings Due Diligence Records for Insurance Law § 5102 Appeals Licensing Assignments Security Interests Cease 1-888-504-CRIM (2746) and Desist Litigation CTM and International Suffolk Nassau Manhattan Applications Copyright Matters [email protected] (516) 286-2980 75 Main Avenue 24 HOUR SERVICE AVAILABLE www.raiserkenniff.com [email protected] Sea Cliff, New York, 11579 “Se Habla Español” 516-771-0349 www.broderlaw.net [email protected]

DIVORCE MEDIATION PER DIEM ATTORNEY WORKER’S COMPENSATION

KENNETH B. WILENSKY, ESQ. STEVEN C. NOVEMBER, P.C. THE LAW OFFICES OF LEE S. BRAUNSTEIN, P.C. Fellow, American Academy of Matrimonial Lawyers since 1992 1025 OLD COUNTRY ROAD Experienced Personal Injury Attorney Named to NY Times List of Family Law “Super Lawyers” SUITE 403 NO. 2007, 2008, 2009 and 2010 – 20 Years of Litigation Experience – WESTBURY, NY 11590 Author, Chapter on Alternative Dispute Resolution, Matthew Bender, New York Civil Procedure, Matrimonial Actions-1997 Available for Depositions, TELE 516-739-3441 FAX 516-739-3442 Chairperson (1993-1996) Nassau County Bar Association Motion Writing, Court Appearances “WORKERS’ COMPENSATION & SOCIAL SECURITY Committee on Alternative Dispute Resolution DISABILITY CLAIMS COUNSEL TO THE BAR” 27 years of mediation/collaborative law experience NYC Long Island Westchester Law Offices of Vessa & Wilensky P.C. (917) 327-7706 270 Main Street 215-48 Jamaica Avenue 626 RexCorp Plaza, Uniondale, N.Y. 11556 Sayville, NY 11782 Queens Village, NY 11428 (516) 248-8010 www.lawvw.com [email protected] 631-360-7750 718-465-3100

BUSINESS CARD DIRECTORY OFFICE SPACE GARDEN CITY HEMPSTEAD/ Fully furnished double windowed GARDEN CITY 13x10 office in newly renovated boutique law suite with elegant Professional Suite w/ 4 Offices & glass wall conference room. Private Bathroom $1500/month Telephone answering, fax, copy includes all 2 month rent machine, scanning services and concession for Feb 1st Lease high speed internet available. 4 Office Suite w/ Large Great parking and immediate Secretarial Area Located in beautifully renovated availability. 585 Stewart Avenue. Victorian on Hilton Ave. Near $1,000 per month all Courts/Reception service Please contact Mike at available. Call Steve Davis (516) 227-2121 or (516) 486-8500 GUY MAMMOLITI (516) 222-2722 Email [email protected] PRESIDENT

516 302-4744 MALVERNE MINEOLA fax 516 302-4745 Prime new office space in Furnished office in law suite, excellent location on telephone system, internet 2776 Long Beach Road Hempstead Avenue in access, parking, amenities, Malverne across from LIRR. Oceanside, NY 11572 walk to courts, LIRR. Perfect Please call for sole practitioner. [email protected] 516-825-1111 516-742-5995 Why Customers Really Buy

he motivations customers really act on how to use provocative questions, insightful Tare seldom logical, predictable, or even listening, and in-depth conversations to solve ADVERTISE IN THE conscious – they’re emotional. the mystery of how customer decisions are Traditional market research measures really made…and give you 12 real-world case rather than informs, and generates studies showing how emotional-trigger predictable answers that confirm precon- research can solve your most pressing sales ceived assumptions. This book will show you and marketing challenges.

DOLAN BUSINESS BOOKS Go to www.DolanBusinessBooks.com or call 1-800-451-9998 today! ● Call 631-737-1700 [email protected] H5Z307 236 24 ■ February 2011 ■ Nassau Lawyer

FEED YOUR BUSINESS, HELP THE HUNGRY.

Sign up for a subscription to Long Island Business News and we’ll donate $50 to local food programs – enough to buy 500 pounds of provisions in your name. You’ll get access to our award-winning paper, our full line of special publications – including the Book of Lists – plus the personal satisfaction of helping the needy get through the holidays.

Go to subscribe.libn.com & enter DONATE as offer code or call 1.800.451.9998