Queenswww.QCBA.org Bar Bulletin County Bar Association | 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 | (718) 291-4500 May 2015 | Vol. 78 No. 3

“29 in ‘64”- Kitty Genovese and the case The Queens Veterans that transformed America Robert E. Sparrow by Queens District Attorney Richard A. Brown I intend to bring you all back to 1964 - consider - 50 years have just flashed by and it is now a time - probably when you were all too young to The wounds of war are not always visible. Veterans 18 years of age or older who have served remember… It was a time of major and social and Many of our returning veterans witnessed horrific in any branch of the military and have demonstrable political upheaval - a time violence and unimaginable devastation in war torn clinical needs are eligible to participate in the that was dramatic, heroic, areas. Some veterans returned with program. Nearly 60 veterans have been tragic, and utterly chaotic - a serious emotional and psychological aided by our Veterans Court and to date, truly unforgettable era. scars that can result in their 76 percent of these participants have March, 1964 - the nation becoming involved in the criminal successfully completed the program. was still reeling from justice system. In 2010, to assist our These graduates have previously served the assassination of a returning troops, the Queens District in Vietnam, the first Gulf War and conflicts charismatic young president Attorney’s office in collaboration with in both Iraq and Afghanistan. and the end of the brief the Unified Court System established “Camelot” era in which we all fleetingly basked; it the Queens Veterans Court. We are extremely proud of this program, was the year in which our leaders found an excuse which along with our many other to go to war with a far off land called Vietnam; One of the first such courts in the alternative to incarceration programs, in 1964 Nelson Mandela was sentenced to life State, the Queens Veterans Court was recognizes and addresses the treatment in prison in South Africa - but also the year that designed to provide an alternative to incarceration needs of certain offenders charged with non-violent LBJ literally pushed the Civil Rights Act through for returning veterans charged with non-violent offenses and transforms these offenders into law Congress; it was the year that Martin Luther King crimes whose criminal behavior may have been abiding and productive citizens. Jr. was awarded the Nobel Peace Prize - and, motivated by substance abuse or mental health indeed, it was the year when the Beatles burst, issues related to their military service. Modeled on One of the challenges in providing diversion services blazingly, upon the scene. Clearly, it was a year our very successful Treatment Court, the Queens to veterans is in identifying individuals entering the of such momentous events that the world would Veterans Court offers veterans an opportunity to get criminal justice system who have previously served never thereafter be quite the same! the help they need – whether it is treatment for drug in the military. In our experience, many veterans Well, 1964 was also the year that a vivacious, 28 or alcohol abuse, post-traumatic stress disorder or who have been arrested do not identify themselves year old girl, named Catherine “Kitty” Genovese, brain injury – under the supervision and monitoring as veterans either because they are unaware that met a horrible, brutal demise - but, because of of the Court. If the individual successfully completes there are services available in the court designed a unique set of circumstances, her name and the required one year treatment program, he or she to address their special needs or because they feel the legal proceedings which ensued, have been will receive a favorable disposition of their case. embarrassed about their current situation. Defense perpetuated in the newsrooms, in the classrooms attorneys who believe that their clients would which teach sociology, psychology and law - and In addition to treatment, a host of supportive benefit from the programs and services offered it resonates in the social consciousness of a city, services are available to veterans who participate by the veterans court are encouraged to reach and of the nation and beyond. in the program. These include the assistance of out to either Doug Knight, our full time Director of “29 in ‘64” a peer mentor who acts as both a role model and Alternative Sentencing, or to the assigned Assistant It was March of 1964, and I had just turned 29... an advocate, as well as vocational, educational and District Attorney to discuss whether veterans court It was March of 1964, and one Winston Moseley housing assistance as needed. is an appropriate option in the particular case. Mr. had just turned 29... Knight can be reached at 718-286-6130. Kitty Genovese continued... It was March of 1964, and the lovely Kitty Genovese, expecting to turn 29 that July, tragically never got there! Continued on page 6

Table of Contents The Queens Veterans & Kitty Genovese ...... 1 Docket, QCBA Board, New Members, Necrology ...... 2 President's Message & Md Year Meeting Wrap up ...... 3 Marital Quiz ...... 4 Editor's Note & Notice from Judge Zayas ...... 5 Tax Cap Protection for Coops/Condos ...... 6 The Queen's Cartoonists...... 7, 8, 10 Animal Abuse and Medical Treatment ...... 9, 10, 18 Looking Back at the Year 2014-2015 Picture Gallery...... 12, 13 Searches Incident to Arrest in New York...... 14, 15 Classified Advertisements...... 19 2

2014-2015 Officers and Board of Managers The Docket of the Queens County Bar Association Being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar Association Building, 90- President - Joseph Carola, III 35 148th Street, Jamaica, NY. Due to unforeseen events, please note President-Elect - Paul E. Kerson that dates listed in this schedule are subject to change. More information Vice President - Jennifer M. Gilroy-Ruiz Secretary - Gregory J. Newman and changes will be made available to members via written notice and Treasurer - Gregory J. Brown brochures. Questions? Please call 718-291-4500. CLE Seminar & Event Listing Class of 2015 Class of 2016 Class of 2017 June 2015 Karina E. Alomar Michael D. Abneri Joseph F. DeFelice Wednesday, June 10 QVLP Foreclosure Training Richard Michael Gutierrez Frank Bruno, Jr. Adam M. Orlow Wednesday, June 17 CLE: Juvenile Justice Committee & Seminar Richard Harris Lazarus Marie-Eleana First Paula Pavlides Gary Francis Miret Hilary Gingold Lourdes M. Ventura September 2015 James R. Pieret Joseph Risi Clifford M. Welden Monday, September 7 Labor Day – Office Closed Monday, September 21 Golf & Tennis Outing - Garden City Country Club

Arthur N. Terranova . . . Executive Director Queens Bar Bulletin EDITOR New Members PAUL E. KERSON Associate Editors Melanie Abrams Alexander Goldman Malvina Mardirosyan Kyce Siddiqi Gary C. Di Leonardo, Stephen D. Fink, Laura L. Bahmanzad Michael H. Goldman Edwin Maria Michael Siegel Richard N. Golden, Ilene J. Reichman Julian Balrup Maricel Gonzalez Yuriy Mavashev Samantha Snyder Dana C. Barretta Steven A. Grant Gia C. McArdle Rebecca Rene Sodhi

Jessica L. Bettencourt Jesseka Green-Gooden Edward Robert McNamara Roman A. Solonyy Thomas Austin Brown Chrissy Grigoropoulos Philip Salvatore Milone Jason A. Speights

Bryan C. Bryks Mark Anthony Hamburger Kamilla Mishiyeva Herbert Noel Steinberg Ashley Marie Castro Assen D. Harizanov Catherine M. Montiel Renee J. Storey Dineen Cato Yue He Robert W. Napoles Marc Alan Strauss Xue Chang Gurhan Heinert Antonio J. Otero Mitchell Studley Meagan P Chen Jonathan Herman Christopher Oxx Eric Subin Sarrah Cherizard Pamela Hirschhorn Nicholas Pagano Sun Eloise Suh Shantelee N. Christie Noah Hussain Cynthia Parache-Brito Jan Tamoor Trent Clarke Michael Iakovou Eric Bryan Perlmutter Subhan Tariq Martha J. de Jesus Latoya S. Jeffers Jonelle Phelps Nathaniel R. Torres George Despotopoulos Janine Kapp Justin Piccione Wilber Trivino Za'Kiya Juanita Dorch Janet Keller Mishael Minnie Pine Vita V Trujillo Steven B. Drelich JoAnna C. Kelly Ariel Poltielov Danielle Waldeis

Scott Andrew Edley Rafeena Khairullah Sean Reidy James Joseph Walsh, III Ethan Michael Felder Sumaiya Khalique Anthony C. Rezzonico Youli Wang Keith Felsenfeld Maya Khodos Stephanie C. Robayo Eileen Padraigin Ward Solomon Aryeh Frager Andrew Klaben-Finegold Adriana Rodriguez Brent G. Weitzberg Benjamin J. Frenkel Seth I. Koslow Brandon S. Ross Leo T. White Michael A. Fritz Rick J. Lasher Jeffrey Roth Yulianna Yagoudaeva Konstantinos Gaisidis Elan Layliev Joseph H. Rotkowitz Peter Zhang Maria F. Galante Janelle M. Lewis Tamanna Rubya

Alina Gavrilov Arthur Orson Louissaint William A. Sarro

Evaggelia Giannopoulos Stephanie Lugaro Ankesh Sharma Ian Glick Solmaz Mahalli Sean Shekib

Necrology

Hon. Allen Beldock Alexander J. Lapinski Raymond P. Cash Alan M. Rosenfeld Jerry M. Decker John F. Scheich Douglas H. Krieger William M. Spanakos 3 PRESIDENT'S MESSAGE

As this is our last Bar Bulletin best describes our Board of Managers “personal interaction.” In speaking with on assisting veterans with discharge of the year, this is the last “message this year. These men and women take our attendees, they acknowledged that upgrades. from the President.” This is the time time away from their personal and every job they have ever had, whether Not stopping there, the Board when the president gets all melancholy professional lives in order to work for the a summer job they had as a teenager and Mark Hoorwitz, Lisa Baldi and remembering the past year. Not this betterment of the lawyers or a job they had while Dietz Reporting, combined to make a guy. While it was my privilege and honor and judges of this County putting themselves through night out with the Islanders a smash. to serve as the president of the QCBA, and their accomplishments college or law school or Over 130 tickets were sold and, the I have to tell you, it was a blast and I need to be acknowledged. their current employment, best part, we raised $1,300 for The am just as excited now as when I took I am so proud of what they they got through a personal Wounded Warriors Project. Wait, it gets office. have achieved. connection that they made better, Mark and Dietz matched what we Before we get too deep into Most Boards are in their life. Whether it raised! A great job for a great cause by this, first let me congratulate our new lucky if they accomplish be a friend, a friend of a all involved. president, Paul Kerson and his new one or two things during the friend, a friend of a family The Board also created the incoming Board of Managers and his course of a year. This board, member, these jobs were Queens County Bar Appreciation Award, Executive Board. Paul is an incredibly however, was phenomenal. obtained because someone an annual award which will be given bright and thoughtful guy and he is Their accomplishments got to know them as an to a member of the court system, in going to do a great job. I hope to see included the formation of an LGBT individual on a personal basis. It is this acknowledgement and appreciation of everyone at his installation at The committee, a Professional Development opportunity for personal interaction that their career. Our inaugural award was Terrace on the Park on May 7, 2015. Committee and Animal Law Committee. membership in the Queens County Bar given to Patty Krisman. Good luck, Paul! From what I have seen, the devotion, Association affords our members by Because there was still some time left I would also like to thank commitment and excitement generated way of committee involvement, social in the year, the Board also organized an Arthur Terranova, our wonderful by the members of these committees events and CLE seminars. inaugural outing to Citifield. executive director who, at times, had ensures that these committees will The Board, in partnership with There were so many members to be the Tom Hagen to my Michael continue to grow, thrive and provide Mark Weliky, the Executive Director of who helped this Association and me Corleone and the Jiminy Cricket to my valuable resources for our members. the Queens Volunteer Lawyers Project throughout this year and I would like Pinocchio. Arthur, you are the best and Speaking of the Professional and Councilman Rory Lancman, also them to know that I am extremely thank you for the support and guidance Development Committee, Kristen oversaw a hugely successful coat thankful for the help and support, throughout, not just my term, but my Dubowski, Charles Giudice and Emilie drive, in a short period of time, which especially George Nicholas…yes, THAT entire tenure with the QCBA. Simone hosted the first ever “speed benefitted The Jamaica Armory Shelter George Nicholas. I also would be remiss if I networking event.” The event, in which for Women. The coats were timely On behalf of the Board of did not thank Sasha Khan, Janice Ruiz 20-30 younger attorneys had a chance donated right in the middle of February! Managers I would like thank you, our and Shakema Oakley for their support to sit down and speak with 20 or so One of the planks in our members, sponsors and corporate all year. They are the backbone of this seasoned attorneys from various fields platform for this year was recognizing sponsors, for your support this year and Association. of practice was extremely well received the efforts of the women and men of look forward to your continued support As a child, I learned a lesson by all who participated. A common theme our armed forces. In this regard, I would for this Association. ‘Nuff said. from a long time Forest Hills resident, that I found when speaking with our like to acknowledge the efforts of Mark the late Ben Parker, who imparted younger attorneys served to reinforce Weliky and the QVLP for their work with to me this lesson, “with great power my belief in the importance of belonging The Veterans Advocacy Project at the comes great responsibility.” This phrase to a bar association. That theme was Urban Justice Center which focuses Joseph Carola, III

2015 American Bar Association Mid-Year Meeting

By Catherine Lomuscio

The American Bar Association (ABA) a diverse mixture of race and gender. As a matter of the House agenda and to hear from ABA leaders convened for its mid-year meeting in Houston on of fact, the next Chair of the House of Delegates, and candidates for office. February 4-9, 2015. The conference had over starting in 2016, will be an African-American woman One of the important resolutions the ABA 3,000 registrants. Lawyers from across the from New York, Deborah Enix-Ross, who is senior House of Delegates took a strong stand on was country participated in hundreds of committee, task advisor to the international dispute resolution group opposing the controversial “stand your ground” force and state bar leadership meetings, providing at Debevoise & Plimpton in . The formal laws and urged repeal or substantial amendment information and discussion on many important issues election of the candidates is still a year away, but to existing ones. For more information on issues facing our profession and the system of justice. the Nominating Committee did formalize its selection impacting your practice and the profession visit the There were also many networking opportunities for of Linda Klein from Atlanta as the ABA’s President- ABA Home Page, www.americanbar.org. There you all association members, law students and state and Elect. At the House meeting itself, A. Vincent Buzard will be able to access ABA programs, as well as other local bar leaders. of Rochester, New York, a long-time member of the member benefits. The ABA’s Nominating committee meeting NY delegation and former President of the NYS Bar The ABA will hold its next Annual meeting in took place on Sunday, February 8, 2015. The ABA’s Association, was elected to the Board of Governors Chicago from July 30 to August 4, 2015. Details on commitment to bringing diversity to its leadership – the ABA’s top executive body. how to register for the meeting is currently available ranks was on dramatic display at the meeting. At The House of Delegates met on February 9, on the ABA website. the “coffee with the candidates” session, the six 2015. New York’s delegation held a caucus on the current or soon to be officers of the association were morning before the House convened for a final review 4

We have represented the Real Estate industry throughout the New York metropolitan area for nearly four decades. We look forward to continuing to represent the property owners and management companies of Queens during this exciting time of growth.

Our attorneys focus on the following areas: Cooperatives and Condominiums Collections Landlord—Tenant Summary Proceedings Bankruptcy DHCR Closings Transfer Agents Real Estate Litigation Mortgage & Refinances Land Use & Zoning Foreclosures Tax Certiorari

Firm Principals: Robert D. Goldstein Myron I. Altschuler Todd I. Nahins Eric M. Goidel Stephen C. Shulman David B. Rosenbaum David R. Brody Harriet M. Polinsky

For more information, contact any of our Firm Principals at (212) 431-1300, or Partner Adam Cooper at Ext. 767 or at [email protected]

MANHATTAN OFFICE QUEENS OFFICE 377 BROADWAY 108-18 QUEENS Boulevard NEW YORK, N.Y. 10013-3993 FOREST HILLS, N.Y. 11375 Tel: (212) 431-1300 │Fax: (212) 965-2612 Tel: (718) 263-6611│Fax: (718) 263-8272

Visit us at www.borahgoldstein.com

Question #1 - Is it always required to Questions #8 - In calculating child support, subtract maintenance payments from in accordance with the CSSA guidelines, do payer spouse’s income for the purpose of MARITAL you deduct from the payer spouse’s income calculating his child support obligation? the amount of maintenance he or she is Your answer - paying to the payee spouse? Quiz Your answer - By George J. Nashak Jr.*

Question #2 - In calculating child support, Question # 5 - Is a marriage between a half- in accordance with the CSSA guidelines, do uncle and a half- niece void as incestuous? you add maintenance to the payee spouse’s Your Answer - income? Question #9 - Does the existence of a non- Your answer - waiver clause in an agreement preclude the court from finding waiver? Your answer -

Question #6 - Can trial court deviate from the Temporary Maintenance Guidelines? Question #3 - Does an appeal lie from Your answer - an order that is entered on default of the appealing party? Question #10 - Does a motion to vacate Your answer - a judgment of divorce on the grounds of excusable default have to be made within one year after service of a copy of the Question #7 - Does an appeal lie from judgment? Question #4 - May the Appellate Division an order entered on the consent of the Your answer - dismiss an appeal where the party seeking appealing party? relief is a fugitive while the matter is pending? Your answer - Your answer -

* Editor’s Note: Mr. Nashak is a Past President of our Association and has now retired from the practice of law. Answers Appear on Page 17 He was a former partner of the firm of Ramo, Nashak, Brown & Garibaldi LLP. 5 Editor’s Note CIA v. Facebook, Google, Microsoft & Apple

By Paul E. Kerson

This past month, the U.S. And after that, surgically implanted? the Tech Wizards of Silicon Valley and iPhone programmed to harm the United Senate released its report on the So why the “black sites” with Seattle to foil them. We should not States. Central Intelligence Agency’s use torture? be physically hurting However, the CIA has shown of torture in “black sites,” prisons it If the people or killing them itself to be a rogue government established around the world with our real governing with drones, we should agency, relying on Justice Department tax dollars in fully one-quarter of the bodies of world are be reprogramming their “memos” rather than our Constitution world’s countries. The cooperating in the corporate iPads, iPhones and PCs and decisional law from our State and nations were blacked out of the report. offices in California so they cannot be used Federal Courts. Simultaneously, the New York and Washington to harm us. Before reprogramming Times reports that Apple sells more State, perhaps In doing this, a potential enemy’s computer, the iPhones and iPads in Shanghai, China the tax-supported we would return to CIA should be compelled to obtain and St. Petersburg, Russia than it does Government in the our most cherished a warrant from that most important in San Diego, CA. The same report District of Columbia principles: Due Process of all Government officials, a U.S. goes on to tell us that more than 80% of should get on the and Equal Protection. Magistrate Judge in a non-secret court. Facebook’s 1.3 billion users live outside plane at Dulles (after The Government in the The record can always be sealed in the the , many in Brazil and being “searched” of District of Columbia is event of an imminent threat to national India. Google and Microsoft lead the on- course), and take a still our Government security. Instead of acting within their line search market world wide. trip to the True American Capitals on even if California and Washington State warped culture, the CIA must be able Bill Gates, Steve Jobs, Sergei the West Coast. There they might learn carry more clout. If our technology has to make their case for reprogramming Brin and Mark Zuckerberg appear to that torturing the bodies of possible extended the American Way of Life to a neutral Magistrate from the Judicial have conquered the world in a way that “enemies” is not only immoral, it is worldwide, so our Government must Branch. no Government or Empire ever did or unnecessary. follow Technology’s head start and American Exceptionalism could. What “terrorist” today Govern in the new environment of the has propelled us to a place not even Contrary to world history to operates without the computerized wired and wireless world. imagined ten years ago. We must take date, Governments in capital cities no world? The defense question is not We should use our Technology steps to keep it all within the legal longer govern the world as we have torture or death, it is this: How to bend Sector’s lead to bring our basic bounds that created this Exceptionalism come to know it on the computer the minds of would-be “terrorists” with principles to the World, not trash them. to begin with. Otherwise, we will face screen Bill Gates promised would be on the technology they themselves use. Our most basic legal principles should the self-destruction of prior leading every desk, and Steve Jobs moved to go where our technology has led. nations. every hand. It is only a matter of time Instead of brute force, the CIA The torture and killing must stop; the before these computer screens are in ought to be finding out what technology reprogramming must begin. There is no every pair of eyeglasses and earpieces. is used by each suspect, and enlist constitutional right to have your iPad or

Notice from the Honorable Joseph A. Zayas

Administrative Judge, Criminal Term, Queens County

The Mayor’s Office met with the QDAO, and representatives from the be temporarily transferred from the Parts in which of Criminal Justice (MOCJ), LAS, QLA and the 18B Panel. the case is pending, and the attorneys will appear formerly known as the Criminal The Administrative Judges have been without the defendant. Our Chief Clerk Maureen Justice Coordinator’s Office, asked to implement the plan by calendaring the D’Aquila and Senior Court Clerk Shevket Murad will and OCA (in consultation with cases on the list. Accordingly, over the next five be implementing and overseeing the calendaring of the Administrative Judges of weeks, commencing on April 13, 2015, I will be the conferences, as well as following up with the Criminal Term), have adopted calendaring and conferencing all of the remaining Parts and attorneys if necessary. a plan, called Justice Reboot, cases on the list in a new Part (K-11C), attempting Should you have any questions about the to attempt to move to trial to resolve the matter (in which case I will keep the implementation of this new effort, please feel free to or resolve all cases in which case for plea and sentence in my Part), or set a reach out to my chambers at (718) 298-1418. the defendant has been firm trial date by reconciling and prioritizing the incarcerated for over one year. The cases identified attorneys’ conflicting schedules (in which case I will by MOCJ have been placed on a list. MOCJ and OCA adjourn the matter back to the respective parts with have had various meetings with DOC, the defense my endorsements on an endorsement sheet). When bar and the District Attorneys’ Offices. I have also the cases are initially conferenced, the court file will 6 TAX CAP PROTECTION FOR COOPS/CONDOS-THE TIME IS NOW By: Geoffrey Mazel, Esq.

In the last few years introduced in the New York State legislature this proposal Coops would then be assessed Coop shareholders bears bill number S4371 in the Senate and according to market value, which is the manner throughout New York A608 in the Assembly. This legislative initiative in which one, two and three family properties City were embroiled is designed to reclassify Coops and Condos are currently assessed. Therefore, the valuation in a battle with from their current classification as Class 2 of a Coop unit would then be based on sales the Department of properties to a new classification consisting prices and not be compared to rental properties Finance regarding solely of properties held in cooperative or for valuation purposes. This legislation passed the flawed valuations condominium form. This legislation would in the State Senate in last year’s session, but in the Real Estate amend the current Class 2 classification to was not passed in the Assembly. Tax Assessments. consist only of cooperatives or condominiums Finally, a resolution is being introduced Many of these flawed and add a new property tax Class 5 to consist in the New York City Council calling upon the assessments occurred in Northeast Queens, of all residential property that is not classified as New York State Legislature to pass, and the a Coop rich area. In 2011, several Coops in Class 1 or Class 2. Furthermore, the legislation Governor to sign proposals S4371 and A608, Queens experienced valuation increases of would extend the assessment caps of 8% in which is described above. The passage of this over 100% increases from the prior year. If any one year and 30 % in any five years to all resolution would provide an impetus for this left alone these increased valuations would Class 2 properties, including cooperatives and legislation to pass at the State level. have had devastating financial impacts on these condominiums with 11 or more units. Obviously, the imposition of this tax Cooperative Corporations. Currently, residential one, two and three family cap has resulted in cost certainty and great tax In 2011, the Coop shareholders of homes are classified as Class 1 properties savings to the Owners of one, two and three Queens protested in the form of Town Hall under New York State law. The big advantage family homes in New York City. The design of meetings attended by thousands of Coop of being classified as Class 1 is that these these legislative initiatives is simply extends shareholders and in public hearings before the properties enjoy tax cap protection from real these tax cap protections to Coop and Condo New York City Council Finance Committee. As estate tax increases. Section 1802 of the Real unit owners. These proposals are designed a result, the Commissioner of Finance placed a Property Tax Law states in pertinent part that to create a new residential property class for temporary cap on these valuation increases as “the assessor of any special assessing unit shall Coops and Condos in the City of New York to a short term solution. The long term solution is not increase the assessment of any individual bring these properties more in line with the way still being debated by members of the New York parcel in Class 1…by more than six percent and in which residential one, two and three family City Council and the New York State Legislature. shall not increase such assessment by more homes are assessed. The theory being that As a result of the unconscionable than twenty percent in any five year period.” Coops and Condos represent a valuable housing valuation increases posted for tax year Under this bill, the Coops would still be stock in the City of New York and deserve the 2011/12 by the New York City Department compared to rental properties for valuation same consideration and protections as one, of Finance a flurry of legislative proposals purposes. Therefore, the only thing that would two and three family residential buildings. have been introduced in the New York State change under this proposal would be that At this point, the merits of these Legislature and several are currently pending. Coops and Condos would be afforded tax cap proposals are being debated on the State and The purpose of these legislative efforts is to protections similar to residential one, two and City level by elected officials and Coop advocate protect Coop owners from these types of wild three family homes. groups. One point is clear - it is time that Coop increases in real estate tax increases. The In addition, another proposal in the New Owners be afforded tax cap protection and New York State legislature is responsible to set York State legislature bears bill number S893 cost certainty currently enjoyed by one, two real estate classifications and parameters for in the Senate and A4224A in the Assembly. and three family residential homes in this City. valuations, while the New York City Council sets This bill would simply classify properties held The crisis brought on by the New York City the tax rate. Therefore, the State legislature in Cooperative form for assessment purposes Department of Finance in the Coop community, needs to enact new laws in order to re-classify as Class 1 properties. The result would be with their unconscionable tax increases, must Coops and to provide the necessary tax cap that Cooperative’s would be afforded the exact be curbed in order to protect the Coop housing protections needed. same tax cap protections as one, two and three stock, an invaluable asset in the City of New One of the significant proposals family residential buildings. However, under York.

Kitty Genovese continued... Kitty, our contemporary, was, fatefully, destined to be a victim of that demonic urge - and, ironically, to become a symbol and a catalyst in our perception of Thus, I present to you the intersection of these 3 lives - a juxtaposition which communal responsibility. occurred, for a brief time, 50 years ago - and which, ironically, recurs here, today. I remember Kitty. She had come to our office in 1962, seeking representation My birthday was February 26. I was an ambitious, enthusiastic young lawyer, a for herself and a friend, Dolores Guarnieri, regarding a minor gambling offense. junior partner in the criminal defense firm of my father, Sidney G. Sparrow. He was Kitty was pretty, dark-haired, petite, and had a friendly, quiet nature. We ultimately a brilliant, charismatic, trial lawyer, generally considered to be the “dean” of the resolved the gambling charges with a $50 fine. criminal defense bar in Queens. Thus, we three were all born in 1935. Our paths were somehow fated to intersect Marcia and I had just become parents of our new son David, who thus joined his that year of 1964. And now, 50 years later, I find myself to be, apparently, the four-year-old sister Laurie. only survivor of those participants in the courtroom drama which ensued (with the Winston Moseley’s 29th birthday was four days after mine. When I first met him, possible exception of that monster who languishes, confined in an upstate New in the prison psych ward at Kings County Hospital, I confronted a slightly built man York prison - and he is not likely to add anything to this narrative). of average appearance. Although possessed of a 135 IQ, he was also apparently I shall now endeavor to encapsulate those events. possessed by an unspeakably evil demon! When Winston Moseley was arrested - quite by chance, as he was placing the Mosely was married to Betty, a pretty nurse, whom I well recall, in her striking fruits of one of his many burglaries in his car - upon questioning by the police he white uniform. They were parents of two young sons. He had a job, a home, two readily admitted his involvement in the murder of Kitty Genovese. This all occurred cars, four German shepherds, and an ant farm which he tended assiduously - and shortly before the “Miranda Decision,” in which the US Supreme Court imposed he also had a periodic uncontrollable urge to prey upon women! the now well known restrictions on police interrogations, and stressing the right Continued on page 11 7 THE CULTURE CORNER THE QUEENS’ CARTOONISTS by HOWARD L. WIEDER

O n CARTOONISTS say that they are movements are: Nuages ("Clouds"), Robertson conducted the SLSO in February 28, on a musical mission consisting of Fêtes ("Festivals"), and Sirènes Carnegie Hall again in November 2005, 2015, I walked equal parts music preservation, music ("Sirens"). March and April 2006, and March into the Skyline education, and live performance. The DR. MEREDITH JANE 2007. Center mall heyday of swing music has passed, but MONK, age 72, (born November 20, Robertson is generally in downtown this music survives in the memories of 1942), is an American composer, regarded as having restored the SLSO's Flushing, just anyone who grew up watching classic performer, director, vocalist, filmmaker, artistic prominence after the sudden to browse, but cartoons or listening to classical and choreographer. Since the 1960s, resignation of the prior music director, made a great music. The group says on its website Monk has created multi disciplinary Hans Vonk, and the orchestra's labor unexpected in language that I cannot paraphrase: works which combine music, theater, dispute in the winter of 2005. New discovery. A “From the Big Apple to Hollywood, and dance, recording extensively for concert series begun during his tenure six-man jazz/ brunos and sweet patooties alike can’t ECM Records. Her music has been include a group of contemporary music swing band named THE QUEEN’S get enough of this clam bake! So featured in several films including The concerts with The Pulitzer Foundation CARTOONISTS were performing a leave your Chicago typewriter at home Coen Brother’s legendary “The Big for the Arts and a series of "Fusion free concert. I found an available front and join us Okies at the gin mill for an Lebowski.” The performance of her Concerts" at the Touhill Performing Arts row seat and had a memorable time. evening of leg shakin’, hooch swiggin’ new work was brilliant and creative. Center of the University of Missouri– THE QUEEN’S CARTOONISTS is a good times!” I may not understand the PETER TCHAIKOVSKY St. Louis. In September 2006, the high energy swing/jazz band. Its music- foregoing word-for-word, but I get the [1840-1893]was the first conductor SLSO announced the extension of playing was perfect, and its enthusiastic drift of the message, and, after listening when Carnegie Hall opened its doors on Robertson's contract through 2010, renditions were so infectious that they to this superb and extraordinary May 5, 1891. ANDREW CARNEGIE with a clause to allow for yearly brought instant smiles on the faces of talented band, I thunderously shout paid Tchaikovsky $2,500 for the renewal. As of November 2009, his the listeners. I was in such rapture out “Amen!” Check the group’s web engagement [today the equivalent SLSO contract was through the 2011 listening to them that I had tears of joy. site, www.thequeenscartoonists.com, of $70,000]. Maestro Robertson’s 2012 season. Following a subsequent THE QUEEN’S regularly for its next “gig.” This group conducting of the Tchaikovsky 4 was contract renewal through 2014, his CARTOONISTS offer a tour de force is fantastic. ferocious, fierce, and exhilarating, SLSO contract was extended, in of the Swing Era’s zaniest and most CARNEGIE HALL: MAESTRO balancing this wonderful symphony’s January 2013, through the 2015 2016 creative music, much of which was DAVID ROBERTSON CONDUCTS intense tension of moods of hope and season. In March 2014, the orchestra written for or adapted for classic THE ST. LOUIS SYMPHONY IN despair and celebration. From the and Robertson announced a further cartoons. The band’s repertoire DEBUSSY’S NOCTURNES, A NEW commanding "fate" motif first intoned extension of his SLSO contract through includes the wacky pieces of Raymond WORK BY MEREDITH MONK, by the brasses at the very beginning of the 2017 2018 season. Scott, John Kirby’s swing arrangements AND TCHAIKOVSKY SYMPHONY the symphony to the nearly hysterical From the start of his tenure in of classical compositions, and both NUMBER 4 triumph of the finale, this is a piece that St. Louis, speculation had been intense original and rejigged music used by On March 20, 2015, grabs you by the lapels and doesn't let that both the Chicago Symphony Carl Stalling for Warner Brothers classic MAESTRO DAVID ROBERTSON, go until the end. Maestro Robertson, Orchestra (“CSO”) and the New York Looney Tunes & Merry Melodies. the Music Director and Conductor of who may be the future choice to Philharmonic (“NYP”) were both trying to The six musicians of The the ST. LOUIS SYMPHONY gave an conduct the New York Philharmonic, sign Robertson as their music director. Queen’s Cartoonists are: excellent performance of: and the famous St. Louis Orchestra The 2006 SLSO action momentarily MARK PHILLIPS clarinet and soprano DEBUSSY Nocturnes were pretty near flawless with excellent ended the discussion relating to the sax; MEREDITH MONK Weave (NY Premiere) use of tempo and dynamic contrasts. Chicago position, at least through DREW PITCHER tenor sax; TCHAIKOVSKY Symphony No. 4 MAESTRO DAVID 2010, although there was renewed GREG HAMMONTREE trumpet; Nocturnes, sometimes Trois ROBERTSON's relationship with the Chicago press speculation in 2007 that JOEL PIERSON keyboard; Nocturnes or Three Nocturnes, is ST. LOUIS SYMPHONY ORCHESTRA the CSO restored Robertson to its list ANDREW GRAU double bass; and an orchestral composition in three (“SLSO”), one of the leading of candidates. This speculation ended ROSSEN NEDELCHEV drums and movements by the French composer American orchestras, began in with the naming of Riccardo Muti as percussion. Claude Debussy. It was completed January 1999 when he made his the CSO's next music director in April THE QUEEN’S on 15 December 1899. The three first conducting appearance with 2008. In 2007, press reports said that the orchestra. Robertson's second the New York Philharmonic was still appearance with the SLSO occurred in considering signing Robertson as its February 2002 at Carnegie Hall after the next music director, which ended with SLSO's then music director Hans Vonk the July 2007 naming of Alan Gilbert to withdrew a few days before the concert that post. due to health problems. Robertson With the SLSO, Robertson has agreed to substitute, and he and the conducted a commercial recording of orchestra had only one rehearsal before music of John Adams for the Nonesuch the concert, which received a favorable label, featuring Guide to Strange Places review from . He and the revised version of the Doctor later appeared with the SLSO in March Atomic Symphony. The Maestro makes 2003, and the SLSO named Robertson his home in New York City. its next Music Director in December Now permit a tangent on 2003, effective with the 2005 2006 Tchaikovsky Symphony Number 4. season. The Tchaikovsky Symphony Number In April 2005, Robertson 4, from its opening chords with blasts led the SLSO for the second time in of the horns, is one of the greatest a Carnegie Hall concert, after a labor works in classical music. I have dispute at the SLSO was resolved. twenty (20) versions of it in my music Continued on page 8 8 The Queens' Cartoonists continued... David Fincher (born 1962), and Martin Scorsese (born cut out a lot of the verbosity and repetition that 1942). Director Lloyd Bacon (1889-1955) was noted detracted from the original very long script, molding sudden resignation of the prior music director, Hans for destroying his very expensive hats on set when Vonk, and the orchestra's labor dispute in the winter an actor, in filming a take of a scene, did not give of 2005. New concert series begun during his tenure a performance in a take that Bacon expected and include a group of contemporary music concerts demanded. At any rate, the work of these men stand with The Pulitzer Foundation for the Arts and a series out. of "Fusion Concerts" at the Touhill Performing Arts PRIVATE FILM SCREENING OF Center of the University of Missouri–St. Louis. In “ACCORDING TO HER” A private film screening for September 2006, the SLSO announced the extension actors and crew was held n of director of Robertson's contract through 2010, with a clause Estelle Artus’s forthcoming feature “ACCORDING TO to allow for yearly renewal. As of November 2009, HER.” ESTELLE ARTUS is a French born director his SLSO contract was through the 2011 2012 living in New York. She earned a PhD in visual arts at season. Following a subsequent contract renewal Sorbonne University where she taught before moving through 2014, his SLSO contract was extended, in to the United States in 2007. Her short films have January 2013, through the 2015 2016 season. In been screened worldwide at festivals and art venues. March 2014, the orchestra and Robertson announced “ACCORDING TO HER” is ESTELLE ARTUS’s debut a further extension of his SLSO contract through the feature. 2017 2018 season. ESTELLE ARTUS’s filmography consists From the start of his tenure in St. Louis, of: According to Her (feature 2015), and the following this production to a manageable and entertaining two speculation had been intense that both the short movies: hours. Chicago Symphony Orchestra (“CSO”) and the New My City (2010) The original costume and lighting design York Philharmonic (“NYP”) were both trying to sign Where It clicks (2006) by STEPHANIE BARTON-FRACAS and her choice Robertson as their music director. The 2006 SLSO Ring Road (2005) of contemporary music, including Pharrell Williams’s action momentarily ended the discussion relating to Domestic Underground (2004) “Happy,” and an occasional panorama of thought- the Chicago position, at least through 2010, although Play Again (2003) provoking quotations [e.g. “We all die. The goal isn’t there was renewed Chicago press speculation in I love Korea and Korea loves me (2002) to live forever, the goal is to create something that 2007 that the CSO restored Robertson to its list of will.”] displayed on a screen in the back of center candidates. This speculation ended with the naming More info on talented film director ESTELLE ARTUS stage added to the show’s cleverness. of Riccardo Muti as the CSO's next music director can be found at www.artusestelle.com. Red Noses is the story of a Catholic monk, in April 2008. In 2007, press reports said that the Marcel Flote, wonderfully played by JAMES HARTER, New York Philharmonic was still considering signing PETER BARNES’s “RED NOSES” BY who seeks a heavenly sign to show him the way to Robertson as its next music director, which ended NICU’s SPOON serve God’s will and ease man’s suffering in the face with the July 2007 naming of Alan Gilbert to that post. Set in mid 14th century France at the height of the of the Black Death, the Great Plague that has taken With the SLSO, Robertson has conducted a Great Plague, RED NOSES is a hilarious and thought the lives of more than a third of the people in Europe. commercial recording of music of John Adams for the provoking play that blends humor a la Monty Python, When Flote accidentally makes people laugh, he hears Nonesuch label, featuring Guide to Strange Places and song and dance, naughty and bawdy banter, biting the sign he has so long awaited. He decides that he the revised version of the Doctor Atomic Symphony. satire, and deep and moving theatrical moments. must spread laughter and joy, and recruits a band of The Maestro makes his home in New York City. Written in 1978 by British playwright Peter Barnes and misfit performers he calls the Red Noses to spread Now permit a tangent on Tchaikovsky first produced in 1985, Red Noses is perhaps even happiness and hope. Ms. Fracas has engaged in Symphony Number 4. The Tchaikovsky Symphony more topical today than when it was written. wonderful casting to play the zanies, and the ensemble Number 4, from its opening chords with blasts of the The play received the Olivier Award, the cast is great. horns, is one of the greatest works in classical music. equivalent of Broadway’s Tony Award, for Best Play DIANA BENIGNO was memorable as I have twenty (20) versions of it in my music library. in London in 1985. For the Nicu’s Spoon production Marguerite, giving a multi-faceted, thoughtful, and Legendary Russian conductor Evgeny Mravinsky’s company, the Off-Off Broadway show that just closed funny performance. MARGARET H. BAKER was conducting of the passionate, exuberant performance on April 19, 2015, at the Secret Theater in Long Island brilliant as Sonnerie, communicating by bells, and not of Tchaikovsky Symphony Number 4 by the Leningrad City, Queens, was sprightly directed by STEPHANIE words. Philharmonic Orchestra [available on the Deutsche BARTON-FRACAS. Ms. Fracas commendably Granted the status of a religious order by Grammophon label], is the gold mark standard. Pope Clement VI, played deliciously by the riveting Permit me a tangent on Mravinsky: Mravinsky, one of and accomplished FENTON LI, the Red Noses must my favorite conductors, was an incredible, obsessed navigate the treacherous landscape of plague ridden perfectionist. In a filmed rehearsal of Schubert’s France. FENTON LI, whose papal character, was Unfinished Symphony, he had the orchestra repeat rolled around in a tilted chair on wheels, made his ex the same bar of music 12 consecutive times till they cathedra statements pronouncements absorbing, in played it to the Maestro’s satisfaction. On another character, while not losing the pace set by director occasion, another famed conductor went backstage STEPHANIE BARTON-FRACAS to her well-paced to visit Mravinsky minutes before the curtains were production. raised to give him “good luck” greetings and found BUTTERFLY HOUR - the Maestro weeping. When asked why he was crying, The play “BUTTERFLY HOUR,” written by CLAUDE Mravinsky stated that he was not certain whether the SOLNICK and directed by DANIEL HIGGINS, was horn section would come in on the right moment of performed last December at THE THEATER FOR the piece. Finally, revealing unchecked perfectionism, THE NEW CITY in Manhattan. The play is about a while in Japan, on a sold-out international tour, group of American army veterans who after returning Mravinsky did an afternoon dress rehearsal that he home from Iraq become involved in a life of crime and said was so sublime and perfect that he cancelled violence. the evening performance, explaining he could never The play invokes a major issue. No one top that rehearsal’s execution of the piece. A 99.9% knows how many veterans are incarcerated, but percent effort to this driven, obsessed, perfectionist, according to one survey, compiled by the Department was unsatisfactory. I am sure the producers of the Queens Cartoonists continued... concert, forced to refund sales of the sold-out event, of Justice’s Bureau of Justice Statistics in 2004, were fit to be tied. found that nearly one in 10 inmates in U.S. jails had Among film directors, there are a number prior military service. Extrapolated to the total prison of past and present giants of the industry who are population, this means that approximately 200,000 reported to be control-obsessed, detailed-oriented veterans were behind bars. It would likely take years perfectionists, including Stanley Kubrick (1928-1999), for these numbers to reflect the toll on veterans of Iraq and Afghanistan. About one third of servicemen and Continued on page 10 9 ANIMAL ABUSE AND MEDICAL TREATMENT by HON. GEORGE M. HEYMANN

During the last N.Y.C. mayoral aware of his dog’s condition, he stated defendant-owner was also summoned. campaign and subsequent thereto, a With respect to the few published in his defense that he was morally In response to a query by great deal of press and media attention decisions that address this issue, opposed to medical treatment, that the court at trial, a doctor/veterinarian has been generated regarding Mayor there is no uniformity regarding the he did not have the financial means testified that, after careful examination de Blasio’s determination to remove interpretation of some of the words and to pay for it, and that the language of the horse in question, the limping by hansom cabs from the city streets, phrases incorporated of the statute did not the horse evidenced pain and that it especially in and around Central Park, therein, specifically require it, wherefore, the was, in fact, experiencing pain. where they have been a staple for the term “sustenance” information should be In its decision, the court tourists and residents alike for more and whether or not dismissed. posited three questions that it needed than a century. it includes medical to decide in order to conclude that Among the many issues treatment to an injured MEDICAL CARE the defendants were in violation of being argued by both proponents and animal or whether Addressing the the statute: “Are omission and neglect opponents on this subject is the alleged it simply means wording of the statute, the punishable under section 353 of cruelty and/or mistreatment to the providing sufficient court noted that phrases the Agriculture and Markets Law, as horses by their owners and/or drivers. food and drink; or such as “necessary are incidents of active cruelty? Does While this article takes no position in this what constitutes an sustenance food or driving a lame horse constitute torture ongoing debate, which will ultimately be “unjustifiable” act. drink;” “such sustenance under that section? Is the element of a voted on by the N.Y.C. Council, it brings The only definitions or drink” or “be deprived culpable state of mind necessary for to the fore an open dialogue of what is provided by the of necessary food or conviction, and if so, have the people considered cruel treatment of animals. Legislature are found drink” were added to the demonstrated sufficiently that such For the past 40 years, a key in section 350 of the AG&M Law which current statute in 1881 without further state of mind existed here?” question that has been debated by the provides: “1. ‘Animal,’ as used in this explanation as to whether “sustenance” Reading section 353 in courts and, to date, remains unresolved article, includes every living creature had any other intended meaning than conjunction with section 350 of the with respect to animal abuse, is whether except a human being; 2. ‘Torture’ or the general understanding that it refers AG&M Law, which, as set forth above, the failure to provide medical treatment ‘cruelty’ includes every act, omission, to providing the essential nutrients, defines “torture” and “cruelty,” the court to animals in need of such care is an or neglect, whereby unjustifiable etc., for a creature to survive. pondered whether the failure to provide omission or an act of cruelty and abuse physical pain, suffering or death is The issue before the court was whether medical care for the limping horse was in violation of the existing law subject to caused or permitted.” The use of the the owner of the pet in question could either an omission or neglect under the prosecution. word “unjustifiable,” without more, has be prosecuted criminally for not statute punishable as an act of cruelty. At the present time, the raised issues of vagueness as to what a providing medical care to his terminally Here, the court held that only N.Y. statute that pertains to the reasonable person may consider as an ill dog. Distinguishing this case from in order to convict under the statute treatment of animals is Section 353 of unjustifiable act. the decision in People v. O’Rourke, it was necessary to prove that the Agriculture and Marketing Law (AG&M As a result, in every instance written nearly three decades earlier, defendants acted with a culpable state Law) which reads in relevant part as of alleged mistreatment of an animal it and the only case to interpret the term of mind as there was no clear legislative follows: will be up to the trier of fact to decide “sustenance” to include medical care, intent to impose strict liability. Thus, A person who overdrives, whether the conduct proscribed in the Arroyo court declined to follow its the defendants did not have to act in overloads, tortures or cruelly beats or section 353 of the AG&M Law can be reasoning: a malicious manner to commit a wrong unjustifiably injures, maims, mutilates applied. The primary consideration in – their mere knowledge that the horse or kills any animal, whether wild or The court in People v. Arroyo interpreting a statute is to ‘ascertain was injured and that continuing to drive it tame, and whether belonging to himself held that the statute was not vague and give effect to the intention of the without proper medical attention would or to another, or deprives any animal because the test to be applied was Legislature’ and the plain meaning of cause it to suffer torture or pain was of necessary sustenance, food or “whether the language used ‘convey[ed] the statutory text is the best evidence sufficient to warrant their conviction. drink, or neglects or refuses to furnish sufficiently definite warning as to the of such intent. (Citation omitted) The Because the terms of proscription in it such sustenance or drink, or causes, proscribed conduct when measured by court finds that the plain meaning of the section 353 of the AG&M Law are open procures or permits any animal to common understanding and practices.’” term ‘sustenance’ in the statute does to interpretation, the moral standards be overdriven, overloaded, tortured, The defendant Arroyo was not include medical care. Therefore, of the community in which the charges cruelly beaten, or unjustifiably injured, charged pursuant to AG&M Law §353 the provision making it a violation of are brought enter into the equation in maimed, mutilated or killed, or to be for, inter alia, “overdriving, torturing the statute to fail to provide necessary assessing the conduct of an owner or deprived of necessary food or drink, and injuring animals and failure to sustenance does not afford notice to a others with respect to their treatment or who wilfully sets on foot, instigates, provide proper sustenance” to his person of ordinary intelligence that not of the abused animals. In other words, engages in, or in any way furthers any dog based on the observations of a providing medical care for an animal is it all boils down to common decency act of cruelty to any animal, or any special investigator of the ASPCA. The a violation of the statute. among the populace as to what is act tending to produce such cruelty, investigator noticed that the dog had a People v. O’Rourke involved a acceptable behavior towards animals. is guilty of a class A misdemeanor… large ulcerated tumor that leaked fluid limping horse pulling a hansom cab. On (Emphasis added) which caused pain to the animal. He three separate occasions, inspectors UNJUSTIFIABLE ACTS AND PAIN Although this statute has stated in the accusatory instrument that warned the driver of the cab about the What constitutes an roots going back to 1866, there is no he had been informed by a doctor from horse’s condition and in each instance a unjustifiable act? Here, again, it is up to correlating statute in the New York’s the ASPCA that the dog’s condition was summons was issued to the defendant- the trier of fact to determine whether a Penal Law. terminal. Although the defendant was driver. On the third occasion, the person’s conduct is unjustifiable and Continued on page 10

1 Hon. George M. Heymann, a retired Judge of the NYC Housing Court, and Of Counsel to Finz & Finz, PC, is a member of the newly created Animal Law Committee of the Queens County Bar Association. 2 In 1999, in response to an increase in low level crimes, and studies showing a direct correlation between animal abusers and crimes among humans, the Legislature created a new sub-section to the statute known as “Buster’s Law,” named after a cat that was doused in kerosene and set on fire. Section 353-a of the AG&M Law provides for “Aggravated Cruelty to Animals:” 1. A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty. For purposes of this section, "aggravated cruelty" shall mean conduct which: (i) is intended to cause extreme physical pain; or (ii) is done or carried out in an especially depraved or sadistic manner. (Emphasis added) Aggravated cruelty to animals is a felony for which a definite term of imprisonment, not exceeding two years, can be imposed. It should be noted that the felony statute for aggravated cruelty statute is limited to “companion animals,” i.e.: dogs, cats and other domesticated animals defined in AG&M §350(5), as opposed to the all-encompassing classes of animals/creatures in the misdemeanor statute. 10

Animal Abuse in this case, a terminally ill the defendant’s admission continued... animal. The court opined that the dog was his. that “[i]f we, as a society, In Torres, the unacceptable behavior in have arrived at the point court noted that while the the specific circumstances where we feel that the defense was correct that in which it is alleged. provision of medical care the plain language of the After concluding to alleviate or avoid pain statute does not reference that the defendant in People and suffering is a duty medical neglect, there v. Arroyo did not violate the undertaken by pet owners has been a divergence of abuse statute by failing to toward their pets, and the opinions in this regard. provide medical treatment failure to fulfill this duty is a Over the years subsequent as sustenance, the court crime, it is incumbent upon to the holding in People focused on the intended our Legislature to enact a v. O’Rourke, many trial meaning of “unjustifiable provision that clearly sets and appellate courts physical pain” which is the standard for – and gives have held that failure to prohibited as “torture” notice of – the proscribed provide medical treatment or “cruelty,” juxtaposed conduct.” is actionable under the against the mere causing The most recent statute. On the other hand, of pain to an animal, which case on the subject, some courts have opted is not prohibited and does People v. Torres , involved not to follow the court’s not rise to the level of the torturing, neglect and reasoning in O’Rourke, proscribed conduct. Is the failure to provide medical relying on the rules of failure to provide medical care to the defendant’s statutory construction, that treatment an unjustifiable dog which required it to the plain meaning of the act of omission or neglect? be euthanized. Defendant term “sustenance” does not Here, again, the moved for dismissal of include medical care, most court declined to impose a the information on the notably People v. Arroyo. duty upon the defendant that ground that it was facially Based on the was not clearly enunciated insufficient and defective. police officer’s direct by the Legislature. It He argued that the alleged observations that the questioned the legislative failure to provide veterinary animal-victim was in logic of adding the word care for the dog’s open unjustifiable pain and “unjustifiable” before the wounds and not keeping suffering due to its open words “physical pain” it in a clean environment wound, and the omission in order to turn a lawful (floors covered with feces of medical care, as well act into a criminal one. and urine) and not providing as ongoing neglect, the Expressing its “trouble” by sufficient food and drink court found the information the imposition of such a which caused the animal against Torres facially duty by a statute that is “so to become emaciated, did sufficient and that the general in its terms” Animal not constitute a violation alleged cruelty proscribed Abuse continued... within the plain meaning of by the statute was clearly the court concluded the section 353 of the AG&M established. The court statute did not (and does Law. The signed accusatory distinguished its case from not) give notice to a person instrument was based on the Arroyo on three grounds: of ordinary intelligence that complaints, observations 1) Arroyo was decided on they are required to provide and conversations with an the issue of constitutional medical care to an ill, or, animal control officer and vagueness as opposed to Continued on page 18

The Queens' Cartoonists continued...

women experience some sort of social psychological problem as they struggle clumsy. The writing had a lack of character development that would make any to integrate back into society from these wars. As a result, court systems of the protagonists seem engaging or likable. The direction was very flawed. across the nation are seeing more combat veterans in trouble for alcohol related For some unknown reason, huge gaps of time were lost for interminable scene crimes and violence that in many cases stem from their post traumatic stress changes of long duration that basically consisted of dragging a clunky sofa on disorders. and off set. The play’s rhythm thus suffered. Also, video clips shown throughout A mercurial job market has made it difficult for many vets to find steady the [p]lay had little to do with the story line. employment. The employment rate for veterans remains stubbornly lower than Despite the deeply troubled writing and direction, the four members the rate for nonveterans. of the cast were excellent given the material. They each gave outstanding In the United States, Americans embrace veterans. That is not the performances, including TOM ASHTON, in a superb, masterful performance way other countries view their soldiers. Putting aside the terrible amount of as Matt, CHRISTINA GERMAINE as Bethany, SCOTT MCINTYRE as Rick, and maimed individuals who have survived Iraq and Afghanistan, the writer and PAUL WALLACE as Oats. director of “BUTTERFLY HOUR,” CLAUDE SOLNICK and DANIEL HIGGINS, respectively, are to be congratulated for dramatizing the plight of emotionally * * * * * * * * * * * * * * * * * * * * * * * * HOWARD and mentally afflicted veterans of these wars. L. WIEDER is the Principal Law Clerk to Justice Martin E. Ritholtz in Supreme BUTTERFLY HOUR’s concept is good, but its execution is flawed and Court, Queens County, in Jamaica, New York.

3 See, People v. Voelker, 172 Misc2d 564, 569 (Crim Ct, Kings Co [1997]) “Whether or not the People can prove that defendant ‘unjustifiably’ committed these acts is a matter best left to the trier of fact.” 4 3 Misc3d 668 (Crim Ct, Kings Co [2004]) 5 83 Misc2d 175 (Crim Ct, NY Co[1975]) 6 The court provided a few examples where driving a sick, lame or disabled horse is not, per se, torture – such as driving a horse directly to the stable after it becomes sick or disabled while on the road. 7 In People v. Bunt, 118Misc2d 904 (Just Ct, Duchess Co [1983]), the defendant was charged with brutally beating a dog with a baseball bat. His defense was that the term “unjustifiable” was too vague. The court disagreed and applied a common sense approach and held that defendant had enough notice that his conduct would not be acceptable when judged by the average person who understands the meaning of cruelty and, thus, was “unjustifiable.” 8 AG&M Law §353 specifically excepts “properly conducted scientific tests, experiments or investigations, involving live animals, performed or conducted in laboratories of institutions, which are approved for these purposes by the state commissioner of health.” 9 2015 NY Slip Op 50253 (U) (City Ct, Albany Co [decided 2/26/15]) 11 Kitty Genovese continued... established his would at the same time be even in that “enlightened” era, apartment. He later told police credibility, how bolstering our insanity defense homosexuality was frowned he “didn’t want to get involved.” to counsel. Moseley later told could they continue with for Moseley in the Genovese upon by both society and Moseley told the police that he me that there had been “some” the ongoing prosecution of trial. Thus, at Mitchell’s trial, the law - the “closet door” saw the man, and was certain physical abuse by the cops, 18-year-old Alvin Mitchell, who we allowed Mitchell’s attorney, remained shut in 1964. he posed no threat. but nothing extreme, and had confessed to the killing of Herbert Lyon (a top criminal On that fateful Friday the 13th, Moseley attempted to he was quite forthcoming in his Barbara Kralik - a confession trial lawyer) to call our client in March of 1964, Kitty left the have sex with the ravaged, multiple confessions. which conflicted with Moseley’s to testify - as he did, under Jamaica Avenue bar, of which barely alive victim - he was After detailing his ghastly own confession. a waiver of immunity. He she had become the manager. unsuccessful - and he finally actions of that night when he 14-year-old Barbara Kralik, admitted to details of the event, It was 3 AM. Meanwhile, urged left, carrying some mementos had killed Kitty, detectives asleep in her own bed and consistent with his confession. on by his demons which told of his conquest. Ross finally had asked him, “Winston, did with her parents in an adjacent Mitchell’s trial jury ended up him he had to find a girl to told another neighbor what you kill anyone else?,” and he, room - was viciously stabbed to hung - and I was later told they kill, Winston Moseley left the he had seen, and she called almost offhandedly, told them death by an intruder who had, were 11 to 1 for acquittal! sleeping children in the care of the police. She then rushed to that he had murdered a lady somehow, invaded the house However, at Mitchell’s retrial, the four German Shepherds - Kitty’s side, cradling the dying named Annie Mae Johnson in the early AM. Alvin Mitchell for reasons known only to him, and of his busy, tunneling ants. girl until the ambulance arrived the previous month - and he was a young thug and gang Moseley refused to testify - (Betty worked the night shift - Kitty died in that ambulance, also confessed to having killed member, who knew Barbara. and Mitchell was convicted of at Elmhurst Hospital). He went en route to the hospital. 14-year-old Barbara Kralik, He told his attorney that his manslaughter. I understand he out into the night in search of When arrested, Moseley also in her own bed, that previous confession was the result of served 12 years, and that he prey! admitted to having committed summer. police brutality. He was already could have succeeded in being Quite by chance, as he drove dozens of burglaries - many When asked, “How did you indicted when Moseley arrived paroled much earlier, had he along a deserted Jamaica of them in daylight - generally kill Annie Mae?,” he said he’d on the scene, and gave details admitted guilt - guilt which he Avenue, he saw this slim white stealing TV sets, which he come up behind her as she was of his own which had not denies to this day, at age 69. girl getting into her car - he brought to his father’s TV opening the door to her home been published in the papers, Many years later, Charlie decided to follow her, and he repair shop (Daddy was also in south Queens, at dusk, and and could be known only Skoller wrote his book, did - right to Austin Street in arrested for receiving stolen he shot her in the torso six to the perp. These “twisted “Twisted Confessions.” It is an Kew Gardens. Kitty exited goods). Ironically, the man who times with a .22 caliber rifle. He confessions” (the name of interesting read. Marcia and her vehicle and started down got away with murder in front then dragged her body inside prosecutor Charlie Skoller’s I had dinner with Charlie and Austin towards the corner, of dozens of witnesses (most and proceeded to ransack the recently published book) threw Myrna Skoller several years around which was home. She of whom had seen parts, but house (despite hearing people the whole scenario into a ago - shortly after we both heard running footsteps behind not all, of what had occurred and activity upstairs - confident confused, conflicted uproar! participated in the filming of her, and she began to run - in the street below) - was he would not be disturbed). He Of course, Moseley’s veracity a documentary film in which but Moseley was faster. As he arrested through the efforts sexually abused the corpse had already been established Kitty’s younger brother Bill is caught up to her, he stabbed of two good Samaritans. One (he was later diagnosed as a - by physical evidence the focal figure. I am told this her twice in the back. Her neighbor saw him come out necrophiliac). He set fire to confirming his having murdered film will be coming out by the anguished screams of pain and of a home carrying a TV set. the body and the house, and Kitty Genovese (certain items, end of the year! Interestingly, terror - “Help me - he stabbed He asked Winston what he calmly left. When asked what including one of her falsies, it was filmed in the very me - I’m dying!” - caused lights was doing, and Moseley said happened to the rifle he told which he had taken with him courtroom in which Moseley’s to go on and shades to go up he was “helping them move”. them that he had thrown it into perhaps as “mementoes” of his trial was held almost 50 years in dozens of windows on both He put the set in his trunk, the wet concrete foundation of crime, were found by police, prior. Charlie, unfortunately, sides of the street. Some and went back in to retrieve the Cross Bronx Expressway where he told them to look, died 2 years ago. windows opened, and one his screwdriver. Neighbor 1 which was then under near his place of employment Ultimately, then - although man actually yelled out “leave then verified from neighbor construction. Upon hearing in Westchester County) - and he had confessed to three that girl alone!” - a momentarily 2 that “those people aren’t this chilling narrative the police assuredly by the Annie Mae murders, Moseley was tried spooked Moseley ran around moving!” This good gentleman said, “Winston, you’re full of Johnson exhumation which only for the Kitty Genovese the corner to his car - but he then proceeded to disable crap,” - for the coroner’s report verified that, as he claimed, he crime. Although indicted for the returned minutes later, now Moseley’s car by detaching the had clearly stated poor Annie had shot this poor lady rather Annie Mae Johnson atrocity, he wearing a different hat - and distributor - and then he called Mae’s cause of death as being than stabbed he as per the was never tried for it - largely confident, as he later told the police (incidentally, 911 “six stab wounds”, probably coroner’s report. because of the finality of the the police, that no one would had not yet been developed caused by an ice pick or screw The DA was now faced with verdict in Kitty’s case…. actually intercede. - it was instituted about two driver. I well recall our meeting a dilemma. The elected DA in Well, let me now tell you By then, the seriously - but years later, largely as a result in the office of Phil Chetta, the Queens, for many years, was about Kitty Genovese. She was not mortally wounded girl had of this case!) Such a call a investigating ADA, Frank D. O’Connor, an ethical raised in a large, nurturing, staggered around the corner. week before, might have saved and discussing Moseley’s and incorruptible prosecutor, religious Italian American Unable to make it to her own poor Kitty’s life. A frustrated bizarre confession which who at first seriouslyfamily. She was the eldest doorway, she entered the Moseley, unable to start his totally contradicted the ME’s considered dismissing the of five siblings. When the door just before her own, and car, walked down the block, conclusion. It was determined murder charges against Alvin Genovese clan relocated from collapsed at the bottom of and was apprehended minutes to exhume Annie Mae’s body Mitchell. to Connecticut - the stairs. Dozens of people later. to make sure. Chetta, I recall, The assistant DA, who was basically to avoid the crowds watched the monster, trying Moseley’s trial for Kitty’s was delighted at the prospect assigned to try Mitchell, was - and the crime door after door - until he , too, murder was presided over by of a free trip - even if it was a young, eager prosecutor went out of sight around the Judge J. Irwin Shapiro, perhaps only to Moncks Corner, South named Charlie Skoller. Skoller Kitty elected to spread her corner - where he ultimately the most brilliant jurist I ever Carolina. Indeed, he, my Dad, ultimately convinced his boss wings and remain in New York, found the cringing, bleeding encountered in my 53 years Sidney Sparrow, and the to proceed with the prosecution which she found to be electric, Kitty - and was now free at the bar. He was a strict deputy Medical Examiner, flew - fully aware of Moseley’s own and full of life and excitement. to complete his grotesque disciplinarian, and prevented down, where the body was confession, details of which About a year before the mission. She screamed - he the trial from becoming a exhumed and X-rayed. To the we had shared with the DAs - murder, she moved into a small stabbed her in the throat media circus. He had great utter amazement of all, in each for we felt morally obligated apartment in a walkup in the to silence her. Carl Ross, a respect for my father, and thus of the fatal “stab wounds” was to help prevent a miscarriage upper middle class community “friend” of Kitty’s, lived at the the appointment as assigned found a .22 caliber rifle bullet! of justice. We were convinced of Kew Gardens, Queens. She top of those stairs. Alerted defense counsel in this highly The Coroner resigned shortly of Moseley’s guilt in the Kralik shared this apartment with by her screams, he opened sensitive and publicized case. after, and the DA’s office now murder, and felt that our Mary Ann, an attractive young his door, clearly saw what Parenthetically, I had tried my faced a significant dilemma strategy would both be the woman whom all the neighbors was occurring below - and he first jury trial, as a neophyte - for, since Moseley had now ethical approach, but that we assumed to be a “friend” - for, silently retreated back into his attorney, before Judge Continued on page 16 12

At NY Families for Autistic Children Foundation 17th Ann Din with Andrew Baumann and Michael Brothers Attendees of Holiday Party 12-2014

Karina Alomar-Pres, LLAQC, Joseph Carola-Pres, QCBA, Janet Keller-Pres, Brandeis Assn, Tom Principe- NYSBA President-Elect David Miranda Guest Speaker for the evening Former Pres, St. John's Alum, Zenith Taylor-Pres, QCWBA

Hon. Jeremy Weinstein, Special Presentation Award Winner Patricia Krisman and President Joseph Carola Winner Jeff Kuhlman of Refer A Colleage Contest with Arthur Terranova, Exec Dir, QCBA

J. Gardiner Pieper, Pres of Pieper Bar Review, NY Ct of Appeals Associate Judge Jenny Rivera, Spiros Past Presidents Tsimbinos, QCBA President Joseph Carola 13

Attendees to Bar at the Bar Networking Meeting Past President Joseph DeFelice being presented with his Presidents Scroll by President Joseph Carola Looking Back at the 2014-2015 Year Pictures by Walter Karling

Pres Joseph Carola with Golden Jubilarians Bernard Vishnick, Robert Lucas and Samuel Freed

Dean Hon. Ritholtz giving the Academy of Law Award to George Nashak Hurricane Grill facing off against The Jurassic Pucks in the game after the game at QCBA Night with the Islanders.

Joseph Carola-Pres, QCBA, David Cohen-Chair, Golf Outing, Art Terranova-Exec Dir, QCBA QCBAs 1st Coat Drive with Councilman Rory Lancman 14 SEARCHES INCIDENT TO ARREST IN NEW YORK

By: STEPHEN R. MAHLER, ESQ.

Any discussion of this area of arrest, it having extended But a different analysis Under the State Constitution, an the law must begin by referencing the beyond boundaries thought was required for searches individual’s right of privacy in his or her seminal case of Chimel v. California, permissible. of closed containers effects dictates that a warrantless 395 U.S. 752, 762-763 (1969), in which Nevertheless, the incident to arrest where search incident to arrest be deemed it was established that an arresting end result was the same at the time of arrest the unreasonable unless justified by the officer may search an arrestee’s person as the search was upheld arrestee was situated in presence of exigent circumstances. in order to remove any possible weapon under the “automobile an automobile. Therefore, When an individual subject to arrest he may be carrying and/or seize any exception” to the search in People v. Langen, 60 has a privacy interest in property concealed evidence to prevent its warrant requirement, a N.Y. 2d 170 (1983) it was within his or her immediate control destruction. theory not relied upon by held that when police have or ‘grabbable area,’ this court has Also deemed permissible in the Supreme Court. probable cause to arrest identified two interests that may justify this regard was a search of the area The court’s position a driver or passenger the warrantless search of that property into which an arrestee might reach in was summed up as follows: in an automobile amidst incident to a lawful arrest: the safety order to grab a weapon or evidentiary “….where the police have validly circumstances that support the belief of the public and the arresting officer; item. arrested an occupant of an automobile that the vehicle contains contraband and the protection of evidence from That permissible search “area” and they have reason to believe that related to the crime for which the destruction or concealment (emphasis was defined as that within the arrestee’s the car may contain evidence related arrest is made, they may search any supplied and citations omitted). “immediate control,” meaning the area to the crime for which the occupant container, locked or otherwise found The reasonableness of a police within which he might gain possession was arrested or that a weapon may in that automobile within a reasonable officer’s assertion of the presence of a weapon or destructible evidence, be discovered or a means of escape time after the arrest. of either or both of these predicates often later referred to as the arrestee’s thwarted, they may contemporaneously Just a few weeks after Langen, to justify a warrantless search is “grabbable area.” But it was made search the passenger compartment, the court decided People v. Gokey, 60 measured at the time of the arrest. clear that in making their arrest the including any containers found therein.” N.Y.2d 309 (1983), wherein the police Moreover, the search must have been police could not routinely search any The inclination of the Court received a tip from an informant that conducted contemporaneously with room other than that in which the arrest of Appeals to depart on appropriate the defendant was traveling on a bus the arrest.” Six years later, in People occurred or, for that matter, search occasion from a ruling of the Supreme from New Jersey to Watertown, New v. Torres, 74 N.Y. 2d 234 (1989), the through the desk drawers or concealed Court in search and seizure cases was York with marijuana and hashish in his court once again parted company with areas in that room itself in the absence explained in People v. Smith, 59 N.Y.2d possession. the Supreme Court, disagreeing with its of a search warrant. 454, 457), wherein the court took Armed with an arrest warrant for rationale for upholding the search of the Subsequently, in New York v. Belton, note of the fact that” [A]lthough both Gokey on an unrelated larceny charge, vehicle that was conducted in Michigan 453 N.Y. 454 (1981), the court went Federal and State warrant requirements five police officers waited at the bus v. Long, 463 U.S. 1932 (19), to wit, that beyond Chimel in upholding the search derive from the common law…..they terminal in Watertown accompanied a suspect that had been stopped and of an arrestee’s jacket (resulting in the are measured differently. The Supreme by a dog specially trained to detect questioned without incident and was seizure of cocaine for which he was Court has interpreted the United States marijuana. about to be released and permitted to indicted and convicted) found inside the Constitution to permit if not require the When the defendant disembarked from proceed on his way could conceivably, passenger compartment of the vehicle drawing of a bright line for reasons the bus carrying a duffel bag, one of the upon reentry into his vehicle, reach for in which he had been an occupant, after of efficiency between permissible officers approached and informed him a concealed weapon and threaten the he was made to exit that vehicle and had and impermissible searches, even that he was under arrest, and he was departing police officer’s safety. Under already been placed under arrest for though the result is occasionally to ordered to place his hands against the this theory Torres’ motion to suppress the unlawful possession of marijuana, forbid a reasonable search or permit wall and spread his feet so he could be would have failed. the court concluding that the search an unreasonable one…..We have frisked. Again invoking the State of the jacket was incident to a lawful interpreted the New York Constitution The duffel bag lay on the ground Constitution in finding the Torres arrest and that the jacket was within the to require that the reasonableness of between defendant’s feet and the dog search to be impermissible, the court arrestee’s immediate control within the each search or seizure be determined on reacted in a way as to indicate that it recounted that at the time of the vehicle meaning of Chimel. the basis of the facts and circumstances contained marijuana, which resulted in search the suspects had already The court also decided that not of the particular case….” the defendant being handcuffed, the been removed from the car and been only was the search of the passenger Smith goes on to point out that bag being searched and eleven ounces patted down without incident and” compartment justified under these facts under pertinent federal cases like Belton of marijuana found inside of the bag. [A]t that point, there was nothing to but that the police were also justified in and United States v. Robinson, 414 In reversing the denial in the courts prevent these two armed detectives examining the contents of any container U.S. 218 [1973], the court approved below of the defendant’s motion to from questioning the two suspects found in the passenger compartment, “the search of any closed container suppress the marijuana in the bag, the with complete safety to themselves, whether open or closed, the lawful taken from the person of, or within court expounded as follows on the state since the suspects had been isolated custodial arrest of Belton justifying the the ‘grabbable area’ accessible to, the of the law in New York in this regard: from the interior of the car, where the infringement of any privacy interest he person arrested, even though the police “In New York v. Belton….the nylon bag that supposedly contained may have had. had no reason to fear for their safety or Supreme Court set forth a general rule the gun was located. Any residual fear But on the Belton remand back to the to suspect that evidence of the crime under the Fourth Amendment of the that the detectives might have had New York Court of Appeals [People v. for which the arrest is made will be United States Constitution that a about the suspects’ ability to break Belton, 55 N.Y. 2d 49 (1982)] we were found in the container. However, under custodial arrest will always provide away and retrieve the bag could have reminded that, despite the Supreme the State Constitution such a search of sufficient justification for police to been eliminated by taking the far less Court’s validation of the search under a closed container can only be justified search any container within the intrusive step of asking the suspects the Federal Constitution and the identity “[F]or compelling reasons, such as the ‘immediate control’ of the arrestee. to move away from the vicinity of the of wording of the pertinent section of safety of the officers or the public or Under this standard, it is clear that car……” the State Constitution (art.1, sec.12) to protect the person arrested from defendant’s Federal constitutional rights Summing up, the court with the Fourth Amendment, a State embarrassment,” and ‘if not significantly were not violated. concluded “that the detective’s conduct tribunal was not prevented from divorced in time or place from the This court has declined to interpret in reaching into the defendant’s car construing its State Constitution more arrest’ may be conducted even though the State constitutional protection and removing his bag, conduct which strictly. Accordingly, it held the search the arrested person has been subdued against unreasonable searches and revealed the presence of a gun, was to be unconstitutional under the State and his closed container is within the seizures so narrowly (citing Smith and not reasonably related to protect Constitution as a search incident to exclusive control of the police…..” Langen). the officers’ safety in this street Continued on page 15 15 encounter. The detective’s actions officers approached. For a third time to be found in the car and thus uphold arresting officer. were thus improper under article I, the officers continued after the vehicle, the legitimacy of that search. b) The protection of evidence from sec. 12 of our State Constitution, and this time observing defendant, in the Most recently decided was destruction or concealment. the resulting evidence should have rear seat of the vehicle, turn to face the People v. Jimenez, 22 N.Y.3d 717 4. Exigency must be affirmatively been suppressed.*** The rule we pursuing officers and make an ‘unusual’ (2014), dealing once more with the demonstrated, therefore even a fashion asks only that once the officers movement. This ‘chase’ spanned issue of warrantless searches of closed bag within the immediate control or have taken steps to secure their own approximately one-half of a city block, containers incident to arrest as the grabbable area of a suspect at the time physical safety, they limit their intrusion with an estimated top speed of 10 mph. result of a street encounter rather than of his arrest may not be subject to a to the inquiry permitted by CPL 140.50 The Nissan finally came to a halt, and an automobile stop. Here, the police warrantless search incident to arrest [Temporary questioning of persons in this time the officers approached with responded to a radio run of a burglary in unless the circumstances leading to the public places; search for weapons].” their weapons drawn. progress in an apartment building, with arrest support a reasonable belief that This area of the law was revisited again The officers advised the three a description of the suspects provided the suspect in People v. Carvey, 89 N.Y.2d 707 occupants to exit the vehicle. The by the 911 caller, and may gain possession of a weapon or be (1997), wherein, as the result of a lawful officers safely isolated the individuals able to destroy evidence located in the traffic stop, a police officer noticed that on their knees and away from the car, apprehended a man and woman inside bag. the defendant, in the rear passenger frisked them and found nothing further to of the premises who were questioned 5. The crime for which there is probable seat, while bending down to place arouse their suspicions. Nevertheless, and determined to be trespassers and cause to make the arrest may provide something under his seat, was wearing one of the officers proceeded to search placed under arrest for trespassing. the requisite exigency but it may also a bullet proof vest under his sweat shirt. the vehicle’s backseat. He pulled down In the course of processing the derive from circumstances other than At this point all four passengers were the armrest revealing an opening to the Searches, continued... the nature of the offense (e.g., bullet removed from the car, the defendant trunk. There he saw a small package woman - the defendant Jimenez - a large proof vest). was patted down with no result and and smelled the distinct odor of a purse was removed from her shoulder, 6. While an officer does not have to handed over to one of the officers on chemical used in processing cocaine. which appeared to be heavy, and when affirmatively testify as to his safety the scene, and the officer who had He then exited the car and opened the opened was found to contain a loaded concerns to establish exigency, such made the observations of the trunk to retrieve the package which handgun. apprehension must be objectively defendant, reached into the car, under contained approximately one kilogram The trial court, in denying her reasonable. the rear passenger seat, and removed of cocaine.” motion to suppress, ruled that the 7. The information on the radio run does a gun from where the defendant had Based upon these facts, the search was justified for safety reasons not necessarily translate to exigency been seated. majority concluded that the “evidence as the purse was not within the exclusive absent other appropriately supporting Relying on language in Torres in the record clearly supports the control of the police and that a facial circumstances on the scene. (at p. 231, n.4.) that ‘…there may well Appellate Division’s conclusion that gesture made by the superintendent of In conclusion, as a result of be circumstances where, following the officers could reasonably have the building at the scene and her point the Gant and Jimenez decisions, the a lawful stop, facts revealed during concluded that ‘a weapon located out of the eventual arrestees suggested law in New York as to searches incident a proper inquiry or other information within the vehicle present[ed] an actual in some way that they were connected to arrest seems reasonably settled, at gathered during the course of the and specific danger’ to their safety’ to a burglary. least until future interpretations of them encounter lead to the conclusion that and affirmed the denial of defendant’s On appeal, the Appellate Division by the intermediate appellate courts a weapon within the vehicle presents motion to suppress. found the search to be proper because come into play. an actual and specific danger to the Then, somewhat surprisingly the bag was large enough to contain a Subsequently. the Appellate officer’s safety notwithstanding the after this history of intricate appellate weapon and was within the defendant’s Division, Second Department, followed suspect’s inability to gain access to that analysis, the Supreme Court, in 2009, grabbable area at the time of her arrest. these Gokey guidelines in cases such weapon’ and “that a further intrusion decided Arizona v. Gant, 556 U.S. 332, It further agreed with the trial court that as People v. Hernandez, 40 A.D. 3d might be justified even in the absence a rather straight forward opinion that the police lacked exclusive control 777 (2007) and People v.Warner, 94 of probable cause (albeit recognizing set forth some clear guideline principles over the bag and that “the surrounding A.D.3d 916 (2012). that a reasonable suspicion alone will regarding automobile searches incident circumstances….support a reasonable But just as this area of the law not suffice) and that” the likelihood of a to arrest that requires a reexamination belief in the existence of an exigency seemed to have become settled, the weapon in the car must be substantial of the reasoning of the Court of Appeals justifying a search of the bag, even Second Department decided People v. and the danger to the officers safety in Carvey and Mundo in its wake. though the officers did not explicitly Thompson, 2014 NY Slip Op. 04524 ‘actual and specific,’ the court upheld In the first place, Gant stands testify at the suppression hearing that (6-18-2014), wherein, although the the search based on the presence of for the proposition that the police may they feared for their safety.” court upheld the suppression ruling the bullet proof vest. search the passenger compartment of In reversing her conviction and in the court below, relying on Gokey Later, in People v. Mundo, 99 a vehicle incident to a recent occupant’s granting her motion to suppress the and its own prior holdings stemming N.Y.2d 55 (2002), the court seemed arrest only if it is reasonable to believe gun, Chief Judge Lippman, writing for from Gokey, it implied that it might to stretch the boundary of the Torres that the arrestee might access the the court, comprehensively reviewed have seriously considered the People’s reasoning to give the police much vehicle at the time of the search or that the guiding legal principles that alternative argument that “the search greater latitude in conducting their the vehicle contains evidence of the should be employed in evaluating the was justified because the detective rather wide ranging vehicle search upon offense of arrest. circumstances arising in these type of had probable cause to believe that the the strength of a somewhat skimpy The holding also makes clear, that cases: backpack contained a weapon….” had fact pattern, which Judge Ciparick, in if there is no possibility of the arrestee 1. All warrantless searches that argument been properly preserved, her dissent, reviewed in great detail: gaining access to the vehicle after presumptively are unreasonable per but citing no supporting case law for “During a routine afternoon patrol, two his arrest, a search of his automobile se and the People have the burden this seemingly contrary theory. New York City police officers observed based upon the automobile exception of overcoming the presumption of Furthermore, where the People a white Nissan with Florida license is not permissible, thus narrowing the unreasonableness; offer alternate theories for suppression Plates, carrying three occupants, make reach of Belton and restricting that of 2. Under the State Constitution, to on appeal that were not raised before an illegal right turn through a red light. Chimel but, jn significant part, goes on justify a warrantless search incident the hearing court, or even advanced Defendant was riding in the rear seat of to confirm that the search would still be to arrest the People must satisfy two those theories after the suppression the vehicle. After observing the traffic justified if there was reason to believe separate requirements: hearing has been concluded and infraction, the officers activated their that evidence relevant to the crime of a) The first imposes spatial and defendant’s motion to suppress has high intensity lights and attempted to arrest might be found in the vehicle. temporal limitations to ensure that the been granted, they are not entitled to stop the vehicle. The vehicle stopped Consequently, there would appear search is not significantly divorced in a new or continued hearing at which and the officers casually approached. to be insufficient factual support time or place from the arrest. to develop those contentions unless As the officers neared the vehicle justifying the search of the vehicle in b) The second requires the People to some valid argument could be made it slowly pulled away. The officers Mundo under the Gant criterion, while demonstrate the presence of exigent that they were denied a full opportunity returned to their vehicle, activated the observation in Carvey of the bullet circumstances. to develop those arguments in the first their lights and siren and followed the proof vest prior to the search would 3. Two interests underlie the exigent instance. See, People v.Havelka, 45 Nissan. The vehicle stopped again and seem to be sufficient to create the circumstances requirement: N.Y.2d 636, 643 (1978); People v. then proceeded to drive away as the reasonable belief that there was a gun a) The safety of the public and the Knapp, 57 N.Y.2d 161, 175 (1982). 16 Kitty Genovese continued... sentencing phase, and sent the case sinking Costa Concordia - and Windows opened, back for re-sentencing to life in prison. these drive home the recognition And then slammed shut Shapiro. I remember his marshalling of We know that Judge Shapiro was much that cowardice and selfishness are Leaving her victim the evidence and the applicable law, and too smart to unknowingly commit still prevalent in society - as it also Of this gruesome nut delivering a brilliant charge to the jury, reversible error - but quite smart enough was on that fateful night of March while pacing behind the bench and never indeed to intentionally build in such error. 13, 1964, when Kitty’s “friend,” Karl Finally arrested- referring to a single note! We are thus certain that by his rulings, he Ross, opened his door at the top Some good police work, I had met Moseley, bearing a reel to satisfied the public outcry for Moseley’s of those stairs, and saw his friend He readily admitted reel tape recorder - both alone and later blood, while fulfilling his own moral being stabbed to death - and he With a sardonic smirk with my father. Moseley was cooperative, objection to the death penalty. In effect, closed his door and retreated inside! intelligent - and displayed absolutely no that sly rascal had his cake and ate it, too! I believe it is up to each of us To a spree of crime emotion - and no remorse! The affect was Well, Moseley continues, 50 years later, - individually and collectively - to That boggles the mind flat and startling - his relating of events so as the longest serving inmate in the NY recognize our membership in, and Murders and burglaries evil, so depraved - in that flat, emotionless State prison system! obligation to, a greater society. And rapes of a kind tone and manner. We realized immediately Moseley’s continuing saga involved a I. personally, always feel compelled That reflect the ways that a defense of insanity was both successful jailbreak from Attica - a few to go to the aid of those in need. I Of a necrophiliac- appropriate and necessary - and, indeed, years later. That rascal severely injured recall in my past, pulling a couple Now how to defend our only option in our desperate effort to his own anus, requiring hospitalization - out of an overturned car; aiding a This homicidal maniac? avoid the death penalty. and he overpowered a corrections officer fellow scuba diver who was out of At the trial, we had engaged Dr. en route back to jail. While free over the air; helping a woman who was being A psychiatric approach, Oscar Diamond, chief psychiatrist at course of a week he carjacked a family abused on the street; carrying my “Nature and quality of act” Manhattan State Hospital. In attesting at gunpoint, committed a rape, and held own two young children out of a A vigorous defense to Moseley’s depraved mental state - another family hostage in their home on burning motel; and donating one He never lacked. lack of understanding of “the nature and Grand Isle in the Niagara River. Ultimately of my own kidneys to our daughter quality of his actions, and knowing that he surrendered to an FBI hostage when she was in kidney failure. I The jury spoke- those actions were wrong” - the ancient negotiator, having successfully terrorized mention these personal acts as You will sit in the chair McNaughton Rule, derived from English the entire city of Buffalo. He later became a reminder that there is a lesson The Judge said he only common law. Frankly, in retrospect, I feel a “model” prisoner, and even obtained a which resonates here. We are all Wished he could be there he was a weak witness, whom ADA Frank college degree at taxpayers’ expense. part of a greater humanity. We Cacciatore made to look inadequate! I About 20 years ago, Moseley brought owe that humanity, and by our own To pull the switch was unimpressed! suit in Federal Court, seeking a new behavior we can repay that debt. And watch him fry, What really sealed Moseley’s fate - trial based upon a claim of “ineffective One hero to whom I shall allude But the Court of Appeals besides the overwhelming evidence assistance of counsel.” This was based is Bill Genovese - Kitty’s brother - Said “you won’t die- of guilt - was the testimony of the upon the following: younger than she by 12 years – who, “you will spend prosecution’s competing psychiatrist. 2 years after her death (which totally Your life in jail-” He refuted Moseley’s claim of legal In 1962, when Kitty had been arrested devastated the family) enlisted, But then the system insanity, and, astoundingly, stated that on that gambling charge (apparently went to Vietnam, and lost both legs Tends to fail- his conclusion was based upon merely a she had taken horse racing bets as an to an exploding land mine. This reading of the psychiatric reports (Kings accommodation to bar patrons, which unique gentleman went on to earn From Attica County Hospital, etc.), and observing the she forwarded to a bookmaker) - who advanced degrees, and become a He does escape subject on the witness stand (for Moseley did she come to for legal representation? husband, father, grandfather and a Once again had testified in his own behalf) - he never Sparrow and Sparrow! I do remember successful businessman. He and his Free to rape! came face to face with the defendant! Kitty - and I am undoubtedly the only lovely wife live here in Washington, We were, and are, certain that the jury living person who knew both Kitty and CT. Marcia and I have dined with Caught again, rejected all psychiatric testimony out Winston. In any event, the gambling them - they are great people and he He tries to avail of hand, concluding that all shrinks are charge resulted in a mere $50 fine. Our is a true American hero. Of ways to limit worthless - and anyhow, how could we let prior representation of Kitty was made In final summary - after Moseley’s His confined travail… this serial killer go to a mental hospital? known to Judge Shapiro - and to Moseley unsuccessful effort in the Federal A verdict of guilt inevitably and quickly before his trial. Thus his claim of “conflict Court, I wrote the following Now, 31 years later, ensued. of interest” was dismissed out of hand. published poem, which pretty much He makes a motion In those days, New York still had the Since then Moseley’s petitions, every two summarizes my feelings… Questioning death penalty. Capital crimes involved a years, for release on parole, have been His lawyer’s devotion- bifurcated trial. In the second, penalty rejected. THE BALLAD OF KITTY AND phase of the trial, numerous victims of Well, I stand alone. The prosecutors WINSTON That record reviewed Moseley’s many burglaries, rapes and - fiery little bulldog Frank Cacciatore, Let’s put it to rest assaults testified for the People. Then, Charlie Skoller, Phil Chetta, and their His representation when it was our turn, we attempted boss, Frank O’Connor - are all gone He stalked the streets Was clearly the best! to introduce testimony, through (O’Connor had made his name initially In search of prey- psychiatrists, of mental incapacity (as a as a lawyer in the “Wrong Man” case - When darkness fell So stay where you are medical, rather than legal, proposition). later made into a Hitchcock film starring He knew his way And ruminate- Judge Shapiro, to our chagrin, refused Henry Fonda. O’Connor had also made This is justice to allow such testimony, claiming the an unsuccessful run for New York State Of confidence A killer’s fate! issue had already been resolved. The Governor, losing to Nelson Rockefeller He had no lack jury clearly got the message, and voted in 1966). Shapiro, the defense team, all That no one would oppose for the death penalty. Shapiro garnered gone except for yours truly. His vicious attack Rest peacefully, Kitty. national - even international - publicity I have stared evil incarnate in the face. I when, as he sentenced Moseley to die in am shocked, but not intimidated. On a helpless girl Robert E. Sparrow the electric chair, he said he was morally I have seen how the “Kitty Genovese Who tried to run opposed to the death penalty, but upon syndrome” - the “bystander syndrome” - He followed and stabbed “seeing this monster” he said he wished the “I don’t want to get involved syndrome” For his perverse fun that he “could pull the switch myself”. - have become a part of our folklore. As an interesting side note. The Court We have all witnessed acts of supreme Then, finally trapped of Appeals, New York’s highest court, courage and self denial - and conversely, In a stairway hall attributed reversible error to Shapiro considering the very recent action of She screamed for help- regarding his limitation of our offer that Korean ferryboat captain and his Her final call. of medical insanity testimony in the crew - and the cowardly captain of the 17

Marital Quiz Answers From page 4

Question #1 - Is it always required to subtract maintenance payments from Question #6 - Can trial court deviate from the Temporary Maintenance payer spouse’s income for the purpose of calculating his child support Guidelines? obligation? Answer: Yes, either upward or downward. Joseph M. V. Lauren J. 2014 NY Answer: No, DRL§ 240 [1-b] [b] [5] [vii] [C] provides that maintenance paid or Slip Op 51536(U) to be paid should be subtracted from the payers income only where “the order (Supreme Court, New York County) of agreement provides for a specific adjustment in the amount of child support payable upon the termination of alimony or maintenance.” Schmidt v. Schmidt Question #7 - Does an appeal lie from an order entered on the consent of the 107 A.D.3d 1529; 968 NYS2d 284 (4th Dept. 2013) cited in appealing party? Doctor v. Doctor 986 N.Y.S.2d 357 (2nd Dept. 2014) Answer: No, Matter of Stein v. Stein 2014 NY Slip Op 8446 (2nd Dept.)

Question #2 - In calculating child support, in accordance with the CSSA Questions #8 - In a motion to enforce a charging lien under Judiciary Law §475 guidelines, do you add maintenance to the payee spouse’s income? is a law firm entitled to a money judgment and interest on the amount owed Answer: Only to the extent that maintenance was or should have been included by the client? in the payee spouse’s last income tax returns. Tryon v. Tryon 37 AD3d 455; Answer: No, absent the commencement of a plenary action. Wasserman v. 830 NYS2d 233 (2nd Dept. 2007). Wasserman 2014 NY

Question #3 - Does an appeal lie from an order that is entered on default of Slip Op 5535 (2nd Dept.) the appealing party? Answer: No, Matter of Wong v. Liu 2014 NY Slip Op 6588 (2nd Dept.) Question #9 - Does the existence of a non-waiver clause in an agreement preclude the court from finding waiver? Question #4 - May the Appellate Division dismiss an appeal where the party Answer: No. Stassa v. Stassa 2014 NY Slip Op 8629 (2nd Dept.) seeking relief is a fugitive while the matter is pending? Answer: Yes, under the fugitive disentitlement doctrine, provided there is a Question #10 - Does a motion to vacate a judgment of divorce on the grounds connection between a defendant’s fugitive status and the appellate process. of excusable default have to be made within one year after service of a copy Allain v, Oriola-Allain 2014 NY Slip Op of the judgment? 7151 (2nd Dept.) Answer: Generally yes, but the Supreme Court has the inherent authority to vacate the judgment in the interest of justice, even where the statutory one- Question # 5 - Is a marriage between a half-uncle and a half- niece void as year period has expired. Goldenberg v. incestuous? Goldenberg 2014 NY Slip Op 8601 (2nd Dept.) Answer: No, Nguyen v. Holder 2014 NY Slip Op 7290 (Court of Appeals) 18

Animal Abuse continued... the facial sufficiency; 2) the defendant Arroyo’s moral beliefs and 3) the fact that defendant Arroyo did not display a pattern of neglect to his pets as did the defendant Torres. CONCLUSION: It is apparent that the language of section 353 of the AG&M Law is open to a myriad of interpretations with no clear cut, unambiguous, guidance from the Legislature. While the debate about hansom cabs continues in the city, this would be an appropriate time for Albany to revisit this statute to clarify the various laundry list of terms that were lumped together to define and proscribe animal cruelty for which an individual can be prosecuted. This will not only assist the prosecutors in drafting their accusatory instruments where allegations of abuse have been raised, it will also assist the courts in rendering their decisions with greater understanding of the legislative intent of the statute, as well as providing due process to the accused by avoiding issues of vagueness and providing sufficient notice that alleged illegal conduct was based on explicit, objective, uniform application of the statute in order to prepare a defense. Perhaps this article will serve as a catalyst for such discussion and clarification of section 353 of the AG&M Law.

QUEENS COUNTY BAR ASSOCIATION SCHOLARSHIP FUND

Dear Member:

The Queens County Bar Association’s Scholarship Fund was created in 2005 to offer financial assistance to law students who are residents of Queens County or who attend law school in Queens County. The recipients of the QCBA Scholarship are carefully chosen based on academic achievement, community service and/or service to the Bar and financial need and is awarded at the Annual Dinner in May. I know that times are hard, but I would hope that you could donate to this worthwhile purpose and your tax deductible donation (of any amount) will help to support and recognize a deserving law student(s). The assistance we provide to the future lawyers, many of whom are struggling with enormous debt, also enhances the good name of our Association. As President of the Queens County Bar Association, I thank you for your support of this valuable community-based program. Tradition Title Agency Serving You with Knowledge, Experience & Trust

Sincerely, JOSEPH CAROLA III President

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10 See, People v. Mahoney, 9 Misc3d 101 (AT 9&10 [2005] which upheld the jury charge that the term “sustenance” was distinguishable from the term “food or drink” and under the statute “sustenance” meant the provision of “veterinary care and shelter adequate to maintain health and comfort.” See also, People v. Fritze, 2010 NY Slip Op 51413(U) (Dist Ct, Nas Co) Defendant’s intent may be established by his cognizance of his cat’s condition and his failure to obtain medical care. 11 See, People v. Curcio, 22 Misc3d 907 (Crim Ct, Kings Co [2009]) 12 See, Stephen Iannacone, Felony Animal Cruelty Laws in New York, 31 Pace L Rev 748, 760 (2011) “One way to solve this apparent flaw in New York’s law is to explicitly include failure to provide medical care as neglect in the statute.” Should the Legislature consider such a change, it must be as specific as possible to address new issues that will arise such as the standard of medical care to avoid prosecution. What if the individual cannot afford such treatment or opposes it on moral grounds that it is invasive and may only lessen pain without curing the condition? Should an injured animal’s life be prolonged or should it be euthanized? (See, People v. Arroyo, supra, n.4) There are no easy answers to these questions and, no doubt, there will be many opinions expressed by various organizations and associations throughout the state that deal with these issues on a regular basis, if any action on this matter is taken up by the Legislature. 19 Classified Advertisements

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