November 2009 an Analysis of the Immigration Questions Motion to Set BY: ALLEN E

Queenswww.qcba.org Bar Bulletin

Queens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500 Vol. 73 / No. 2 / November 2009 An Analysis of the Immigration Questions Motion to Set BY: ALLEN E. KAYE The Healthcare "Debate" and Immigration Reform Immigration Reform Would Boost US Unless you have had your head buried in the Aside the Verdict: Economy sand for the last thirty days, you are aware that The Center for Trade Policy Studies issued a America is having a national "Debate" on health- report which claims that an immigration reform care reform. That is if you call a "debate" yelling Subsection 21 program which included a legalization would save at each other, accusing the other side of the BY ANDREW J. SCHATKIN* literally billions of dollars over the current policy "debate" of being a Nazi, a socialist, a birther, or a Restriction or of enforcement only. In communist. Frankly, the only part of this debate This article will consider Legalization? Measuring the Economic Benefits of that is not surprising to me is how calm it is com- the ground set forth in sub- Immigration Reform, Peter B. Dixon and Maureen Allen E. Kaye pared to the national debate we have experienced section 2 of CPL Sec. T. Rimmer claim that using standard economic in the recent past on immigration enforcement and 330.30. That section con- analysis tools (most of which are too complicated for mere reform. tains and sets forth three mortals to understand), legalization is a huge net gain to the We, as advocates for immigrants, whether or not we agree grounds and bases to set U.S. economy over the alternative current policy of immigra- with whatever reform package has been introduced in aside a Criminal jury ver- tion restriction and deportation. To this finding I can only September by Senator Schumer, or what might ultimately be dict. Those three grounds say, No Duh! voted on by Congress, have to understand is that the vehe- are as follows: Andrew J. Schatkin We have known for more than a decade, since the passage mence, vituperation, passion, and outright hatred we are A ground appearing in of Illegal Immigration Reform and Immigrant Responsibility experiencing right now over the healthcare reform agendas the record, which if raised Act (IIRAIRA) that enforcement was going to cost the U.S. will PALE in comparison to what we will hear during the upon appeal from the Judgment of Conviction taxpayer billions of dollars. The alternative option of a work- immigration debate. would result in a reversal or modification of that able, immigration law, with a forward looking vision for U.S. Let's not kid ourselves. The groups that oppose immigrants Judgment by the Appeals Court; families, business and our economy would clearly be a better are as strong as ever. Heck, the Know Nothings over at the That during the trial there occurred, out of the alternative to the anti-immigration restrictionist model found Center for Immigration Studies even have a "press confer- presence of the Court, improper conduct by a juror in IIRAIRA. The question once again becomes, does ence" next week touting their newest anti-immigrant theory or another person in relation to a juror, which Congress have the courage to do what is right and pass com- about how the entire healthcare crisis in America is caused could have affected a substantial right of the prehensive immigration reform and put the vestiges of immi- and increased by immigrants, both legal and illegal. And this defendant; gration restrictionism behind us, or not? Or, will it cave under from what some in the media believe is a mainstream non- That new evidence has been discovered since the pressure of a vocal minority of those for him deportation partisan research group! Groups such as Numbers USA, the trial, which could not have been produced by ______is the only solution? Continued On Page 7 the defendant at the trial, even with due diligence on his part, and which is of such a character as to create a probability that if the evidence had been The Following Summary of Second Department Decisions in Medical received at trial, the verdict would be more favorable to the defendant.1 This article will consider, more specifically, the Malpractice Cases Decided Between January 1 to February 15, 2009 proper interpretation of the language in Subsection (2), which references, as a basis for setting aside Prepared by Brooklyn Bar Association Medical Malpractice Committee Chair John Bonina the verdict, conduct by a juror, of an improper Venue - Procedure and Timing of Motion: Baez v. tinuous treatment doctrine applied. The Court held that nei- character, which could have effected a substantial Marcus ther a 24 month gap between office visits, nor a consultation right of the defendant, during the trial, outside of Defendants moved to change venue from Kings County to with a different physician, rendered the continuous treat- the presence of the court. New York County, on the grounds that Kings County was ment doctrine inapplicable as a matter of law. There is a general rule that the trial court is invested, with discretion, with respect to this spe- an improper venue. The Court denied the motion noting 2 that a demand to change venue based on designation of an Statute of Limitations - Dental Malpractice - continu- cific matter and issue. People v. McMillan is improper county must be served with the answer or before ous treatment toll applied to dentists’ treatment of instructive. In McMillan, the Appellate Division the answer is served (CPLR 511(a)). Since the defendants some teeth, but not others: Zito v. Jastremski First Department ruled that the summary denial of failed to serve a timely demand for change of venue and Defendant’s motion for Summary Judgment on statute of a Motion to Set Aside a Verdict of guilty of failed to make a motion for that relief within the statutory limitations grounds was granted by the Trial Court. This Criminal Possession of a Controlled Substance in 15 day period, they were not entitled as of right to change Order was modified on appeal, with the Court holding that the Third Degree, on the ground of misconduct venue to New York County. Further, defendants failed to plaintiff raised a triable issue of fact as to whether the con- during jury deliberations, was an appropriate exer- meet their initial burden of demonstrating that none of the tinuous treatment doctrine operated to toll the statute of lim- cise of discretion. The Court stated that the parties resided in Kings County at the time of commence- itations as to some teeth. Motion papers contained only conclusory allega- ment of the action. The Second Department determined that plaintiff was not tions that the incident in question constituted entitled to the benefit of the continuous treatment doctrine improper influence on the jury verdict and the Statute of Limitations - Continuous Treatment with respect to the claims involving teeth 14 and 15, as dropping of the bag of candy could not reasonably Doctrine: Gomez v. Katz there was no treatment for these teeth after November 12, have been viewed as determinative of the ultimate Defendant’s motion for Summary Judgment seeking dis- 2001 (2 1/2x years prior to commencement of the action). issue in case, as to whether the defendant crimi- missal on statute of limitations grounds denied. The Court However as to teeth 3, 4 and 5, the dental records and nally possessed crack cocaine with the intent to sell it, and upon which issue the People offered held that there were questions of fact as to whether the con- ______Continued On Page 15 ______Continued On Page 13 INSIDE THIS ISSUE Analysis of the Motion to Set Aside Taking the Pain Out of Foreign the Verdict: Subsection 21...... 1 Language Documents ...... 3 Decisions in Medical Court Notes ...... 4 Legal Fees: Contractual & Illusory..5 Malpractice Cases ...... 1 Culture Corner...... 6 Immigration Questions...... 1 Books at the Bar ...... 9 President’s Message ...... 3 Photo Corner: Annual Golf Outing .10 Profile of Hon. Fernando Photo Corner: Significant Decisions M. Camacho...... 3 in Appellate Courts...... 11 2 THE QUEENS BAR BULLETIN – NOVEMBER 2009

THE DOCKET . . . NEW MEMBERS being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will be made available to members via written notice and brochures. Questions? Please call (718) 291-4500. Crystal Beaumont Wendy Pelle-Beer PLEASE NOTE: Eric Eason Michael J. Resko The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Legal Sean C. Guthrie Michael Schuster Education Provider in the State of New York. Denise Evita Johnson Robert L. Sharoff 2009 FALL CLE Seminar & Event Listing Christine Julien Hsu Adam Small November 2009 Dorothy Catherine Kaldi Mark A. Torres Tuesday, November 3 Election Day - Office Closed Lauren Debra Kantor Danielle Nikole Young Wednesday, November 4 Summary Jury Trials & Trial Preparation 4-Part Luncheon Series Gillian Taicia Ballentine Agnes A. Zawadzki Trial Preparation - The Plaintiff 1:00 - 2:00 p.m. Tuesday, November 10 Summary Jury Trials & Trial Preparation 4-Part Luncheon Series NECROLOGY Trial Preparation - The Defendant 1:00 - 2:00 p.m. Wednesday, November 11 Veteran’s Day - Office Closed Tuesday, November 17 Nuts & Bolts of Appellate Practice - Hon. Philip J. Chetta Appeal Tech 1:00 - 2:00 p.m. Tuesday, November 17 Ethics Seminar 6:00 - 9:00 p.m. Thursday, November 19 Landlord & Tenant Update 6:00 - 9:00 p.m. Thursday, November 26 Thanksgiving Day - Office Closed Friday, November 27 Thanksgiving Holiday - Office Closed 2009-2010 Monday, November 30 Stated Meeting - Screening Process for Appt to the Criminal & Matrimonial Bench - Mayor’s Advisory Officers and Board of Managers Committee 7:00 - 8:00 p.m. of the December 2009 Tuesday, December 1 Family Law Seminar 6:00 - 8:00 p.m. Queens County Bar Association Thursday, December 3 Labor Law Seminar 6:00 - 9:00 p.m. Monday, December 7 Article MHL 81/Guardianship Training Seminar 2:30 - 5:00 p.m. Thursday, December 10 Holiday Party at Floral Terrace 6:30 - 10:30 p.m. President - Guy R. Vitacco, Jr. Friday, December 25 Christmas Day, Office Closed President-Elect - Chanwoo Lee January 2010 Vice President - Richard Michael Gutierrez Friday, January 1 New Year’s Day, Office Closed Monday, January 18 Martin Luther King, Jr. Day, Office Closed Secretary - Joseph F. DeFelice February 2010 Treasurer - Joseph John Risi, Jr. Wednesday, February 3 Ethics & Real Estate Practice 1:00 - 2:00 p.m. Wednesday, February 10 Evidence Seminar 6:00 - 8:00 p.m. Friday, February 12 Lincoln’s Birthday, Office Closed Monday, February 15 President’s Day, Office Closed Class of 2010 Class of 2011 Class of 2012 March 2010 Gregory J. Brown David L. Cohen Jennifer M. Gilroy Monday, March 22 Past Presidents & Golden Jubilarians Night Joseph Carola, III Paul E. Kerson Richard Harris Lazarus 5:30 - 8:30 p.m. John Robert Dietz Zenith T. Taylor Gary Francis Miret April 2010 Mona Haas Timothy B. Rountree Steven S. Orlow Friday, April 2 Good Friday, Office Closed Wednesday, April 21 Equitable Distribution Update 6:00 - 8:00 p.m. Gregory J. Newman Clifford M. Welden James R. Pieret

May 2010 Thursday, May 6 Annual Dinner & Installation of Officers Terrace on the Park 6:00 - 10 p.m. Arthur N. Terranova . . . Executive Director Monday, May 31 Memorial Day, Office Closed QUEENS BAR BULLETIN CLE Dates to be Announced EDITOR - LESLIE S. NIZIN Elder Law Labor Law Real Property Law Insurance Law Taxation Law Associate Editors - Paul E. Kerson and Michael Goldsmith

Publisher: Send letters and editorial copy to: advertise Long Islander Newspapers, LLC. Queens Bar Bulletin, 90-35 148th Street, under the auspices of Jamaica, New York 11435 Queens County Bar Association. Editor’s Note: Articles appearing in the Queens Bar to 27000 lawyers Queens Bar Bulletin is published Bulletin represent the views of the respective authors monthly from October to May. and do not necessarily carry the endorsement of the in Queens, Kings, New York, All rights reserved. Association, the Board of Managers, or the Material in this publication may Editorial Board of the Queens Bar Bulletin. Nassau & Suffolk Counties not be stored or reproduced in any form without permission. “Queens Bar Bulletin” (USPS Number: 0048-6302) is published monthly except ©2009 June, July, August and September by Long Islander Newspapers, LLC., 149 Main Street, Huntington, NY 11743, under the auspices of the Queens County Bar Association. The Queens County Bar Entered as periodical postage paid at the Post Office at Jamaica, Association, Advertising Offices, New York and additional mailing offices under the Act of Congress. Postmaster send address changes to the Queens Long Islander Newspapers, County Bar Association, 90-35 148th Street, Jamaica, NY 866-867-9121 149 Main Street, Huntington, 11435. New York (631) 427-7000 THE QUEENS BAR BULLETIN – NOVEMBER 2009 3

PRESIDENT’S MESSAGE

One of my jobs as President of the Queens Presidents and Golden Jubilarian Night in Co-Chair and Vice Chair has a task to do and as County Bar Association is making committee March and Judiciary Night in April of each in the past, each one of them really perform a assignments. The backbone of our Association year. In addition, each committee is asked to very vital role in the Bar Association. So to all are its committees and those men and women have a CLE seminar each year on a current topic the Chairs, Co-Chairs and Vice Chairs, let’s who run the committees better known as the in their field. keep up the good work. Chair, Co-Chairs and Vice Chair. In addition, it is imperative to get each com- As always if you have any questions or con- These men and women have a big role in our mittee and their members to bring in one or cerns please contact me. I look forward to see- Association. It is the hope of the Association more new members to the Queens County Bar ing you at one of our many activities. that each committee conduct regular meetings, Association. This will make our Association attend stated meetings, especially Past grow and prosper into the future. The Chair, Guy R. Vitacco, Jr. HON. FERNANDO M. CAMACHO ADMINISTRATIVE JUDGE, CRIMINAL TERM, SUPREME COURT BY STEPHEN J. SINGER work on obtaining his own visa group focused on acts of extreme many murders of innocents, the Judge had in the meanwhile. Interestingly violence which shocked the pub- had enough. He left public office and At first blush, Judge Camacho appears enough, the younger version of lic conscience and brought the entered private law practice for a period of to be about thirty five years old. Blessed Judge Fernando Camacho was attention of law enforcement to two years. He handled all kinds of legal with a youthful look and boundless enthu- the President of the Young the gang which inspired it. matters including criminal defense cases. siasm, he has the energy that many of us Communist League at age nine, He successfully prosecuted He was tapped for a position as an appoint- wish we could enjoy. As the new just before leaving to live here. many high profile trials against ed Criminal Court Judge by Mayor Rudy Administrative Judge of the Criminal Without the ability to earn a the leaders of various violent Giuliani in 1997 and has been a member of Term, the Judge assumed that position living in the U.S. and speaking street gangs, most of his cases the Judiciary ever since. without preconditions, bringing with him a no English, the family bounced tried before Judge Leslie Crocker After four years in the Brooklyn willingness to listen, to learn and to make around from relative to relative Hon. Fernando Snyder who volunteered for that Criminal Court the Judge was transferred adjustments which were a long time in while trying to find a permanent M. Camacho dangerous assignment. As was to Queens and served as the Deputy coming. We asked him to consider location for themselves. well publicized, she eventually Supervising Judge of the Criminal Court. changes in court procedures which would Meanwhile, Dad simply refused to contin- had to receive around the clock protection He presided over the Domestic Violence benefit both the Bench and the Bar, and ue to work as a surgeon in Cuba, making because of threats from the associates of part and organized a special section of the unlike others, instead of a six month him considerably less “indispensable” to gang members who were convicted in her Court to deal with teenagers charged with “study period,” the changes were made in the people of that island, so that he was court. His path of investigation began with prostitution related offenses. This was an short order. It was quite amazing to those ultimately allowed to join his family here a planned attack on the “Gerry – Curls”, a opportunity for the Judge to intervene in of us who were used to being in America. Young Fernando was simply drug gang that controlled an area near the lives of 16 and 17 year old girls whose stalled, stonewalled and just simply thrown into a regular class in public school 157th Street and Broadway in Manhattan. lives had been on a fast track towards ignored. His personal charm, diplomacy … no ESL then … and sat next to a young The gang had shot and killed a neighbor- prison or other ruin. Taking a personal and genuine interest in implementing girl who, fortunately, was bilingual. His hood man who had made a practice of call- interest in these children, even having improvements to the system is quickly father did pass his medical examinations ing the police to complain about their drug them bring their report cards to Court, earning him the respect and acceptance on the first try and eventually became the activities. The D.A. task force rented an altered the lives of many. The Judge said that one would anticipate for an adminis- Chief of Obstetric Anesthesia at Winthrop apartment across the street from the gang’s that this was the most satisfying aspect of trator who had held his position for many Hospital in Nassau County. headquarters and filmed their drug activi- his judicial career to date. Not only turning years. His personal background is scintil- The Judge particularly enjoyed sports ties all day and all night. Eventually, they their lives around, but pairing them with latingly interesting and worth telling about activities as a younger man, and as with had identified all of the prominent gang agencies equipped to work with young as well. most Cubanos, was a serious baseball members and had film showing them par- teens, made the Judge feel that he had truly Born and raised in Castro’s Cuba made enthusiast. He attended a private high ticipating in drug sales. Undercover offi- accomplished something worthwhile. He for a difficult time for a family with more school and went on to Columbia, ironical- cers were sent in to infiltrate the gang fur- has had some incredible success stories moderate political leanings. His father was ly, at the same time as President Obama, ther and obtain additional direct evidence. and the part continues to be in operation a prominent surgeon and was eager to emi- although the two never met. He was a Over fifty gang members were arrested as today. grate to the U.S. Despite the fact that a first political science major in college, which a direct result of this effort. The Judge per- In 2008, he was appointed by Governor cousin was a high ranking member of the was the thing to do for all pre-law candi- sonally prosecuted the top five gang lead- Patterson to the New York Court of Communist Party, the family was denied dates of that era. His legal career began in ers, obtaining convictions in all of their Claims. He served in the Integrated permission again and again. The alleged earnest when he became an Assistant cases. The trial lasted almost six months. Domestic Violence Part, finding the cus- reason being that his father’s exceptional District Attorney with the Manhattan Next in turn, the A.D.A. utilized the tody matters the most difficult to reconcile. medical skills made him indispensable to District Attorney’s office. He was same methodology to investigate and suc- In May of this year, we were fortunate the “well being of the people of Cuba.” It assigned to the long term drug investiga- cessfully prosecute the “Super Kings”, the enough to have Judge Jonathan Lippman ultimately occurred to the family that all of tions task force, which literally meant “Wild Cowboys” and the “Young appoint Judge Camacho to serve as our them could leave as long as the Doctor investigations which lasted for six months Talented Children” (what an ironic choice Administrative Judge. We look forward to remained behind and that he would simply or more concerning major drug gangs. His of name) gangs. After dealing with one too a long and mutually satisfying relationship! Taking the Pain Out of Foreign Language Documents BY LILLIAN CLEMENTI using a professional; 3) setting up a realis- ing your foreign material while you focus faces. But “knowing some Spanish” does- tic budget; and 4) listening to your transla- on other priorities. n’t necessarily qualify a paralegal or even The attorney was frantic. With trial only tor – you can handle non-English material Planning is equally important for the an attorney to translate or review foreign- days away, she had just remembered that more effectively, avoid disaster, and get the back end of your case. If you are a litigator, language documents, says Thomas L. West she had to stipulate to the other side’s most for your translation dollar. think ahead to depositions. What docu- III, owner of Intermark Language Services translations of key French documents – and ments will need to be translated in and former president of the American the material filled several boxes. “I Plan ahead advance? Will you need to have an inter- Translators Association (ATA). "A lawyer [messed] up,” she said ruefully. “I simply The temptation to set non-English mate- preter present? Be sure that your team’s I know got a fax from his Latin American forgot about the French.” rial aside for later is perfectly natural, but pretrial checklist gives you plenty of time subsidiary and gave it to his Spanish- With non-English material increasingly – as in the real-life example above – yield- to stipulate to the other side’s translations, speaking secretary," he recalls. "Three prominent in US legal proceedings, this ing to it can be dangerous. prepare your own certified translations, and words stood out: celebración, asamblea, kind of scenario has become more and Solution: inventory foreign-language – if any of your witnesses are uncomfort- and social.” “Relax, they're just having a more common – and not because of incom- documents right away, especially if you able testifying in English – book a compe- party,” she said. It turned out to be an invi- petence or negligence. For many attorneys, don’t know what you have. Even if you tent interpreter well in advance. A small tation to a shareholders meeting." working with documents they cannot read and your team are too busy to deal with up-front investment in planning will save is a headache, and managing foreign-lan- them early in the case – and almost every- significant time, money and stress later. Go with a pro guage documents can be a challenge even one is – the right linguist can help. With a Bottom line: translation errors can be for a well-organized law firm. The good few background documents and a quick A little learning is a dangerous thing. costly – even disastrous – so it pays to news is that if you follow four common- briefing, an experienced translator can get It’s natural to turn to a bilingual col- work with a professional. But how do you sense guidelines – 1) planning ahead; 2) to work right away, reviewing and analyz- league when non-English material sur- ______Continued On Page 16 4 THE QUEENS BAR BULLETIN – NOVEMBER 2009

COURT NOTES

The Following Attorneys Were E felony of conspiracy to com- Grievance Committee for the client to improperly influence his inde- Disbarred By Order Of The Appellate mit money laundering in the Second, Eleventh and pendent professional judgment on behalf Division, Second Judicial Department: second degree, the Appellate Thirteenth Judicial Districts of the client; engaging in conduct prejudi- Division held that the respon- was investigating 60 com- cial to the administration of justice and/or Jose R. Mendez (May 19, 2009) dent was automatically dis- plaints of professional miscon- reflecting adversely on his fitness as a The respondent tendered a resignation barred as a result of his convic- duct against the respondent. lawyer by failing to timely appear at wherein he acknowledged that he could tion pursuant to Judiciary Law scheduled appearances on one or more not successfully defend himself on the § 90(4)(a). John P. Oliver, admitted as occasions in connection with client mat- merits against allegations that he neglected John Patrick Oliver, a sus- ters; engaging in conduct reflecting his clients’ interests in personal injury Marise Robergeau, a suspended attorney (June 30, adversely on his fitness as a lawyer by fail- actions and engaged in fraudulent conduct pended attorney (June 23, 2009) ing to comply with the requirements of 22 by making false representations to, and 2009) On May 1, 2008, the respon- NYCRR § 1400 et seq in connection with concealing relevant facts from, a court of The respondent was found Diana J. Szochet dent entered a plea of guilty in a custody and visitation matter; engaging law. guilty, on default, of failing to the County Court, Suffolk in conduct prejudicial to the administra- cooperate with the Grievance Committee County (Hinrichs, J.) to one count of grand tion of justice by failing to pay a money Mark E. Wolterbeek (May 19, 2009) for the Second, Eleventh and Thirteenth larceny in the second degree and one count judgment entered against him; engaging in By order and opinion of the Supreme Judicial Districts. of scheme to defraud in the first degree. conduct involving dishonesty, fraud, Court of New Hampshire dated October Pursuant to § 90(4)(a) of the Judiciary deceit or misrepresentation and/or conduct 31, 2005, the respondent was disbarred as Michael T. Savelli (June 23, 2009) Law, the respondent was automatically prejudicial to the administration of justice a result of his conduct in representing a On August 27, 2008, the respondent disbarred as a result of his New York by submitting misleading documents to a client in a divorce action in 1995. Upon pleaded guilty in Supreme Court, Nassau felony conviction(s). court; engaging in conduct adversely the Grievance Committee’s motion for County (Calabrese, J.) to one count of reflecting on his fitness as a lawyer by fail- reciprocal discipline, the respondent was attempted disseminating indecent materi- Alan Schuchman (June 30, 2009) ing to file a Retainer and/or Closing disbarred in New York. als to minors in the first degree, a class E By order filed March 6, 2007, the Statement with the Office of Court felony. Pursuant to § 90(4)(a) of the Supreme Court of the State of California Administration (OCA) as required by 22 Christopher Carnesi (June 23, 2009) Judiciary Law, the respondent was auto- accepted the respondent’s resignation. NYCRR § 691.20; engaging in conduct On May 4, 2007, the respondent pleaded matically disbarred as a result of his New Upon a motion for reciprocal discipline prejudicial to the administration of justice guilty in the United States District Court York felony conviction. pursuant to 22 NYCRR § 691.3, the by failing to timely re-register as an attor- for the Eastern District of New York to respondent was disbarred in New York. ney with OCA as required by Judiciary conspiracy to commit money laundering, a Pericles Tsapongas (June 23, 2009) Law § 468-a; engaging in conduct involv- federal class C felony. On February 8, The respondent tendered a resignation Robert L. Shepherd (July 21, 2009) ing dishonesty, fraud, deceit or misrepre- 2008, he was sentenced to a six-month wherein he acknowledged that he could On September 18, 2008, the respondent sentation by making false and misleading term of imprisonment, with credit for time not successfully defend himself on the pleaded guilty in the United States District statements on a background questionnaire already served; a special assessment of merits against allegations of grossly over- Court for the Southern District of Florida submitted to the Grievance Committee; $100; and two-years of supervised release. charging clients for legal services per- to conspiracy to commit an offense against engaging in the unauthorized practice of In finding that the federal felony of con- formed in relation to the reduction of tax the United States and making materially law by initiating a legal action at a time spiracy to commit money laundering is assessments on properties owned by the false statements in a matter within the when he knew or should have known that “essentially similar” to the New York class clients. Prior to his resignation, the jurisdiction of the judicial branch of the his license to practice law had been sus- government, both of which are federal pended; engaging in dishonesty, fraud, felonies. On December 1, 2008, the deceit and misrepresentation by holding respondent was sentenced to 18-months himself out as a licensed attorney to a bank EMPLOYMENT & LABOR LAW probation; a fine in the sum of $3,000; and official in order to open a bank account, at an assessment of $100, along with certain a time when he knew or should have enumerated “special conditions.” In find- known that his license to practice law had STEPHEN D. HANS & ASSOCIATES P.C. ing that the respondent’s admitted conduct been suspended; and engaging in conduct Counsel to the Profession was “essentially similar” to the New York reflecting adversely on his fitness as a class E felony of offering a false instru- lawyer based upon his conviction in the ❏ Sexual Harassment ❏ Union Representation ment for filing in the first degree, the village of Bronxville, New York, on or ❏ Americans with Disabilities Act ❏ Title VII - Discrimination Appellate Division held that the respon- about August 27, 2007, for the crime of ❏ Education Law ❏ Pension Issues dent was automatically disbarred as a aggravated unlicensed operation of a ❏ Arbitrations result of his conviction pursuant to motor vehicle Counsel to the Profession - over three decades Judiciary Law § 90(4)(a). The Following Attorneys Were Chairperson - Labor Relations Committee - Queens County Bar. Daniel F. Blizard (July 28, 2009) Suspended By Order Of The Appellate Association of the Bar - Employment Law Panel Member. The respondent tendered a resignation Division, Second Judicial Department: wherein he acknowledged that he could not successfully defend himself on the Jan Alex Dash (May 19, 2009) 45-18 Court Square, Suite 403, Long Island City, New York 11101 merits against allegations that he neglected Following a disciplinary hearing, the Telephone 718-275-6700 Fax 718-275-6704 a legal matter entrusted to him; handled respondent was found guilty of commin- E-mail: [email protected] legal matters without adequate prepara- gling funds entrusted to him as a fiduciary, tion; and failed to timely communicate incident to his practice of law, with per- with his clients and/or respond to their sonal funds; engaging in conduct involv- inquiries regarding the status of matters ing dishonesty, fraud, deceit or misrepre- entrusted to him. In addition, the respon- sentation (by preparing a false closing dent failed to cooperate with the Grievance statement in connection with a real estate DUFFY & POSILLICO AGENCY INC. Committee’s investigation by failing to transaction, which failed to disclose the Court Bond Specialists timely respond to multiple lawful demands disbursement of $2,000 to suspended for answers to complaints and/or addition- attorney Edwin Drakes1); conduct reflect- BONDS * BONDS * BONDS * BONDS al information. ing adversely on his fitness as a lawyer (by Administration • Appeal • Executor • Guardianship paying $5000 to suspended attorney Robert Tavon, a suspended attorney Edwin Drakes in connection with a real Injunction • Conservator • Lost Instrument (August 4, 2009) estate transaction where no closing state- Stay • Mechanic’s Lien • Plaintiff & Defendant’s Following a disciplinary hearing, the ment was prepared and/or produced); Bonds respondent was found guilty of engaging improperly disbursing escrow funds to a Serving Attorneys since 1975 in conduct prejudicial to the administra- suspended attorney (by disbursing the pro- tion of justice by failing to promptly com- ceeds of a surplus money proceeding to Complete Bonding Facilities ply with the lawful demands of the suspended attorney Edwin Drakes); MMEDIATE ERVICE Grievance Committee during its investiga- engaging in an impermissible conflict of I S ! tion of four complaints of professional interest (by simultaneously entering into a misconduct; failing to act competently by brokerage agreement with a client he 1-800-841-8879 FAX: 516-741-6311 engaging in inadequate preparation for appeared for, as attorney, in connection and/or neglecting legal matters entrusted with a house sale, absent disclosure of his 1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts) ______NYC Location: 108 Greenwich Street, New York, NY 10006 to him; permitting someone other that his Continued On Page 12 THE QUEENS BAR BULLETIN – NOVEMBER 2009 5 Legal Fees: Contractual and Illusory

BY: THOMAS F. LIOTTI* are being offered half their salaries to An interesting case from Nassau 70 AD2d 632, 416 NYS2d 646 (2nd take a year off with the hope that by next County requires that attorneys be clair- Dept., 1979) [lien awarded pursuant to “A lawyer’s time and advice are his year, times will change for the better. In voyant, namely that when they are Judiciary Law 475 necessarily decides stock and trade.” the meantime, the overhead for expen- retained they must predict the total that no legal malpractice took place]. Abraham Lincoln sive office suites and staff remain. amount of legal fees and costs that will Typically a §475 claim would allow Lawyers have to work more to earn less. be generated in a matrimonial action. the Trial Court to conduct a hearing, Introduction Yet, there is a skeleton in our legal clos- See Klein v. Klein, 6 Misc.3d 1009(A), determine the amount of the lien and There should be a course in law school et which must be addressed. Many peo- 800 N.Y.S.2d 348, 2005 WL 89006 then permit the turnover of an invento- or in life on how to charge legal fees. ple cannot afford legal services and are (N.Y. Sup), 2005 N.Y. Slip Op. ried file to successor counsel or the for- The prerequisite, of course, is to have a left to represent themselves pro se. 50018(u). If lawyers take an up front fee mer client. A frivolous action for legal potential, paying client. Some corporate There is no such thing as civil Gideon, in a heated matrimonial and the client malpractice may then thwart the §475 lawyers spend their entire careers doing but it is desperately needed. See Gideon soon runs out of money, then the lawyer lien and hearing. Yet, the Trial Court in billable hours for clients that they never v. Wainwright, 372 U.S. 335 (1963). seeking to withdraw may not be permit- the matrimonial is in the best position to meet. In this situation, the client is a cor- ted to do so. Alternatively, the lawyer determine whether the malpractice porate entity often with in-house counsel Defining The Scope Of The Work may be left with a DRL §237 claim for action is frivolous or brought for the sole interacting with outside counsel. Some Defining the scope of the work first legal fees against the opposing spouse. purpose of negating a claim for counsel corporate clients stay with the same law requires the attorneys to listen to the The lawyer then must assess not only his fees. Trial Courts presiding over the firm for decades. Retainer agreements facts and then to define the problem. or her client’s ability to pay, but that of matrimonials do not continue to preside are not needed since a course of dealing After doing so, the attorneys can then the opposing spouse to do so and over the §475 claim once a malpractice spanning lifetimes supersedes that. address the strategies that they would whether the assets of the marriage that action has been commenced. Instead, 3 Instead of retainer agreements, memos deploy and without guarantees, assess may be subject to equitable distribution they will deny the §475 application, are shot back and forth among lawyers or the likely outcome or result. Aside from are sufficient to cover the legal fees and deferring instead to another Trial Court corporate officers explaining or ques- the primary action there may be discus- also provide the client with a measure of Judge to determine the viability of the tioning legal fees. This sanitized process sions of parallel proceedings, how the recovery. All of this is asking a lot of malpractice action and counterclaims in ivory towers does not get down to the record must be preserved for purposes of attorneys and clients, perhaps too much. therein, presumably including a claim 4 “nitty gritty” of tending to clients with interlocutory or other appeals. It also suggests that attorneys represent- for counsel fees and disbursements in the more personal needs. This is where The attorneys may choose to discuss ing the non-moneyed spouse in a matri- matrimonial case. practitioners who represent Mr. and Mrs. what support services, investigators and monial case may come dangerously This article strongly suggests that Jones must learn about the case, explain experts are needed. Clients should be close to taking cases on a contingency retaliatory legal malpractice actions the legal process to their clients and what informed of what disbursements and fil- which may then violate the Canons. should be screened by the Trial Court services will be provided, at what cost. ing fees they are likely to encounter. (See, Rules of Professional Conduct 1.5) Judge handling the matrimonial and These are very sensitive discussions The better practice is for clients to make The traditional route to payment in deciding motions to dismiss or for sum- where the client’s ability to pay for what a deposit into escrow for disbursements. cases where attorneys withdraw has been mary judgment in the malpractice is needed to properly represent them and Clients must be informed of hourly Judiciary Law §475. That section pro- action. This would also allow the Trial the lawyer’s desire for fair and reason- rates for those working on the case. If vides for a lien on the file. But that sec- Court Judge to decide whether the attor- able compensation have to be reconciled. they are being charged on an hourly tion has been blunted by legal malprac- ney has a viable “but for” defense to the Often negotiations then occur where basis, they must be told of the minimum tice claims which no matter how frivo- malpractice claim. See, e.g. Rudolf v. dream cases with optimum resources and billing period. Clients who are new to lous slow the recovery process for coun- Shayne, Dachs, Stanisi, Corker & Sauer, legal fees must be pared down to what is the legal process are surprised that they sel fees and disbursements. See eg, Nat 8 NY3d 438, 835 NYS2d 534 (2007). affordable and necessary. Practitioners are charged for telephone calls or that Keagan Meat & Poultry, Inc. V. Kalter, ______who are charging clients on a case by the firm has a minimum billing period. Continued On Page 17 case basis usually have minimum fees It is best to explain that up front and pro- that they charge for a particular type of vide for it in the retainer agreement. case. They will then have either flat fees Most law firms have minimum billing which are also typically the periods of .1 0 hours to .25 hours. It pro- minimum fee or they will apply their vides for the entry time on time sheets or hourly rate against the minimum fee and the computer and the cost of the phone if services are needed above that, then call which is generally not billed sepa- clients will be charged on an hourly rately unless they are long distance calls basis. or conference calls.

Legal Fees v. Pro Bono Work 1 Defining The Tasks Of Those Most lawyers even in the pristine, rar- Working On The Matter ified environs of corporate law, devote Somewhere in the body of a retainer, it time to pro bono activity. 2 The amount is advisable to define the roles of those of pro bono or volunteer activity for who may be working on the case. 5 It charities and the like is obviously deter- should be emphasized that the client has mined in most cases by other clients who retained a firm and the firm or a partner are paying the lawyer or the law firm. in it has the discretion and responsibility Depending on overhead, other commit- to assign those within the firm to work ments and family obligations, the more on different aspects of the case. For successful practitioners should be in a example, Associates may do legal better position to devote time to pro research, make court appearances, and bono work. So, for example, if the legal conduct examinations before trial, hear- fees are high enough for the corporate ings and trials. Paralegals may be draft- clients, the profit for the firm may be ing under the supervision of an less, but they may be in a better position Associate or partner. Hourly rates for to do pro bono work. each employee should be specified. If a corporate law firm is charging $750.00 per hour for partner time to its Retainers That Must Be In Writing clients and $250.00 of that is profit, they The law requires that certain types of may be able to use some portion of the retainers to be in writing and/or filed. 6 profit margin for pro bono publico See, e.g., 22 NYCRR 1215.1 (written work. How much profit they wish to letter of engagement required in all rep- have versus the amount of their pro bono resentations); 22 NYCRR 1400.3 publico work is the question to be decid- (Domestic Relations matters; 22 ed. NYCRR 603.7 (personal injury mat- Reduced profit may mean reduced ters). A failure to file may result in an bonuses and other financial curtail- attorney being unable to recover counsel ments. Reduced profit in difficult finan- fees. See, Fishkin v. Taras, 54 AD3d cial times such as our current recession 260, 863 NYS2d 153 (1st Dept., 2008); may also mean severe cutbacks on pro Flanagan v. Flanagan, 175 Misc.2d, 668 bono publico work. The startling cut- NYS2d 302 (S.Ct., NY Cty., 1997). backs of Associates in corporate law firms is an example of that. Associates When Clients Run Out Of Money 6 THE QUEENS BAR BULLETIN – NOVEMBER 2009

THE CULTURE CORNER

This month’s column discusses the new paniment, and accomplished THE PLAYBOY OF THE Christy, even though her love is not recip- UNITY STAGE COMPANY in New York playwright Jeremy WESTERN WORLD rocated by him. The second enjoyable Sunnyside, Queens, established by SOFIA Kareken who read an excerpt The PEARL THEATRE, quality of the show was the scene in the LANDON GEIER and reviews LIN- from one of his upcoming pro- known for a revival of the clas- final act of the choreography of the inn’s COLN, A POETIC OPERA, the Pearl ductions. Adam Schultz, a teen sics, has experienced a facelift. patrons as they were viewing from afar the Theatre’s revival of John Millington Yo-Yoist extraordinaire, First, it has moved from its for- donkey race in which Christy Mahon, to (“J.M.”) Synge’s THE PLAYBOY OF brought his fledgling rock mer home on Second Avenue the characters’ delight, emerged victori- THE WESTERN WORLD, and a new band along to play their first and St. Mark’s Place in the East ous. Chinese play MY FATE IS NOT IN MY public performance. The kids Village to West 55th Street. As “revived” by the PEARL THE- HANDS [Part One]. were a big hit. Especially The move to midtown ATER and J.R. SULLIVAN, all the delightful was OMAR Manhattan gives this well play’s wit had been sapped from it as a THE UNITY STAGE COMPANY and AHMED, six-year old son of Howard L. Wieder known theater group greater vampire would suck the life blood from its SOFIA LANDON GEIER actress Scarlett Ahmed, who visibility. But the new theater victim. I did not even chuckle once. The SOFIA LANDON GEIER is Producing won the audience’s hearts with his dance in the City Center Building on West 55th production was a deadly bore. In the dark Artistic Director of the UNITY STAGE tribute to the late “King of Pop,” Michael Street is not as hospitable as the former following the drowning of the final lights, COMPANY, a new non-profit theater in Jackson. The evening was smoothly host- theater with nicer and more comfortable I fled to the illuminated “Exit” sign. Sunnyside, Queens, New York. Ms. Geier ed by gifted actor and stand-up comedian seats and a warmer atmosphere. Second, The play runs through November 22. founded UNITY STAGE COMPANY to RAY CHAO, who serves on the board of the Pearl has a new artistic director, J.R. Performances are on Tuesday, Thursday, bring together the diverse communities of directors of UNITY STAGE COMPA- SULLIVAN, who hopes to move the Pearl Friday, and Saturday at 7:30 P.M., and Western Queens through the enjoyment of NY. See www.unitystage.org for spring to new repertory. The company is already also on Wednesday, Saturday, and Sunday the performing arts. Recently incorporat- 2010’s next Community Vaudeville Night. blessed with a loyal subscriber list and a matinees at 2:30 P.M. Further information ed, UNITY STAGE COMPANY is fol- SOFIA LANDON GEIER, a former gifted Resident Acting Company. can be obtained at www.pearltheatre.org. lowing up its successful summer training actor and Drama Desk Best Actress Unfortunately, its revival to start its new THE PEARL THEATRE’S remaining program for young people -- SUMMER Nominee and veteran scriptwriter for day- home was boring. lineup for the 2009-2010 season are: MIS- STOCK FOR CITY KIDS! -- WITH time television and commissioned play- For its inaugural play in its new home, ALLIANCE by Bernard Shaw [Dec. 4, AFTER-SCHOOL-MUSICAL!, provid- wright, is looking forward to producing J.R. Sullivan “revived” J.M. SYNGE’S 2009 - Jan. 24, 2010], HARD TIMES by ing children in grades K-5 with a sixteen- UNITY STAGE COMPANY’S first sea- THE PLAYBOY OF THE WESTERN Charles Dickens [Feb. 5 to March 28, week rehearsal and performance opportu- son of professional theatre. First up is WORLD, a comedy of the early twentieth 2010], and THE SUBJECT WAS ROSES nity. SOFIA LANDON GEIER is direct- LOYALTIES, considered the finest play century. I put revived within quotation by Frank D. Gilroy [April 9 to May 9, ing Disney’s THE ARISTOCATS KIDS. of the 1922 London theatre season, by marks because it takes a lot of work to rob 2010]. Woodside’s KATE SCOTT, a graduate of Nobel Prize-winning British playwright this play of any and all interest. When the State University of New York at Purchase John Galsworthy. This crime-thriller and play opened originally, Irish theatergoers MY FATE IS NOT IN MY HANDS with a BFA in Dance Performance and study of prejudice in England following rioted for a week. At that time, the Irish [Part One] Production, is choreographing the show World War l, will open January 8, 2010 were experiencing a wave of nationalism It takes a lot of self-confidence for play- and MARTHA (M.J.) GEIER, a graduate and play for eight performances, closing and bitterly resented what they [mis]per- wrights to insert “[Part One]” in a title. of Professional Performing Arts School January 30. LOYALTIES will be fol- ceived to be the putdowns of the Irish in After all, poor critical reception and bad and current Marymount Manhattan College lowed in March by a revival of THE CRA- the play. The fact that Synge, the play- box office may dissuade playwrights from student is coaching the eager, young DLE SONG, a touching comic gem by wright was Anglo-Irish and raised in a continuing with a Part Two. In this case, singers. There will be two public perform- Spanish husband and wife playwrights Protestant home, did not help. Contrary to however, this original play by KITSENG ances on Saturday January 30. Visit Gregorio and Maria Martinez-Sierra in a the reaction of the play at the play’s pre- CHAO and GARY LAU have hit on www.unitystage.org for updates. translation by John Underhill. UNITY miere, this revival is a deadly bore. At the something important in writing MY FATE UNITY STAGE COMPANY’S 2009 STAGE COMPANY’S first season will play’s conclusion [and I could not stay for IS NOT IN MY HANDS [Part One]. SUMMER STOCK THEATER INTEN- conclude in June with the 1922 Broadway the curtain calls based on what I had wit- The play has a universal theme on the SIVE featured young performers ages 16 hit, SIX-CYLINDER LOVE, a surprising- nessed], I stormed out of the theatre not to suffering caused by war and the struggles to 22 in a workshop production of a new ly relevant comedy about America’s love get my shotgun or banners in protest, but of its survivors who immigrate to new musical, PRETENTIOUS YOUNG affair with the automobile. For informa- to dive into the nearest subway that could lands. The play is about the suffering of LADIES, based on Moliere’s hilarious tion about auditions (all three productions get me far away from the vicinity. the Chinese people at the hands of a ruth- one-act. Audiences reveled in the panache will be Equity Approved Showcases and The original play had a lot to admire as less Japanese military, and how often of UNITY STAGE COMPANY’S pro- open to both union and non-union actors) a comedic celebration of the traditional Chinese persons found themselves exploit- duction, which transferred the setting of and volunteer opportunities, contact Irish talent for story-telling. In the play, ed by fellow Chinese. As mentioned, one the play from Paris to New Orleans and SOFIA LANDON GEIER AT 917-548- Christy McMahon, the protagonist, played need not be Chinese to appreciate the play. updated the period from the 1600’s to the 1086. by SEAN McNALL, arrives at a pub in To credit JUSTICE CHARLES J. present day. SOFIA LANDON GEIER Finally, a word of praise. Lawyers the rural countryside of Ireland to say that MARKEY, when many years ago, I relat- wrote the book and Woodside talent TOM who do pro bono deserve a lot of acco- he’s just killed his father. Rather than be ed to him that persons who caused the ASHTON composed the witty rock score, lades. The newly formed and already horrified, the assembled patrons revel in most pain to my parents and me were fel- including lyrics. successful UNITY STAGE COMPANY the story and hail Christy. Synge’s sar- low co-religionists, Justice Markey wisely Next up on UNITY STAGE COMPA- received a great deal of help from donic humor was a commentary of life explained to me that persons tend to pick NY’S calendar was September’s hugely MATTHEW VISHNICK, ESQ., a where evil often ends up getting glorified. on those of their own ethnicity. As a son successful COMMUNITY VAUDE- QCBA member and partner with his broth- Christy, rather than being shunned, ends of Polish Jewish Holocaust-surviving par- VILLE NIGHT. Local audiences were er JASON VISHNICK, in VISHNICK up being pursued by all the fair maidens of ents, one can appreciate the horrors related entertained by NYC comic magician Lee & VISHNICK in Holtsville, N.Y. the area, including the Widow Quin, by these Chinese playwrights of the true to Barrett, well-known tap dancer Rod MATTHEW VISHNICK, ESQ., worked rumored to have killed her first husband life experiences they depict. Ferone, Sunnysider Marina Meyler’s pro bono to incorporate the UNITY under unknown circumstances. The play was brought to life by director haunting vocals to her own guitar accom- STAGE COMPANY. I was amazed that SEAN McNALL KITSENG CHAO with the help of ener- arrived at the role as a work-in-progress. getic actors who accomplished multiple At the start of the play, his character, hun- scene changes with rapid fire precision. gry and disheveled, bursts into the inn, One of the finest lead performances of this Diana C. Gianturco having spent a long time in a pit. SEAN original production was that of FENTON McNALL walked in with a hair not out of LI, who brings a riveting stage presence place and, when offered bread, gingerly with his performance. Mr. LI plays the ATTORNEY AT LAW divided it into two pieces, before consum- son of a war time survivor who has to deal ing it. That is not the reaction of a raven- with his father’s emotional abandonment ously hungry man. Acting is about truth, and recounts to his daughter, with stirring, P.O. BOX 419 not lies. More important, Christy Mahon yet true [and not over-the-top melodramat- LONG BEACH, NY 11561 requires an actor who can seem like a ic] emotion, his final moments at his dad’s charismatic, handsome con-artist. SEAN deathbed. FENTON LI is a graduate of Tel: 888-805-8282 McNALL gave a performance half of the American Academy of Dramatic Arts, Fax: 516-706-1275 which, at least, lost a lot of the swagger of whom many of you will remember played Text: 321-480-1678 the outrageous character, and, by poor DHH in the successful revival of David choice, made him seem earnest. Henry Hwang’s “YELLOW FACE” at The production offered two interesting the Queens Theatre in the Park last year in APPEARANCES IN upsides: first, RACHEL BOTCHAN, as a sold-out run that began on November 14, QUEENS COUNTY the Widow Quin, gave a brilliant and 2008. heart-tugging performance of a woman In this show, FENTON LI, born in E-mail: [email protected] suspected by all of murdering her first hus- China and who speaks English without band, but who is really in love with ______Continued On Page 14 THE QUEENS BAR BULLETIN – NOVEMBER 2009 7

who conspire to corrupt our nation's proud one misdemeanor count of conspiracy for Meeting on Comprehensive Immigration Immigration immigration tradition for the sole purpose marrying a Chinese citizen in return for Reform of enriching themselves." $17,000. Ecker was sentenced July 7, 2009 “Today’s meeting on comprehensive "We take all violations of U.S. immigra- to two years probation and ordered to give immigration reform was an important Questions tion laws seriously, but are especially a public speech designed to deter others opportunity to hear from stakeholders and Continued From Page 1 ______aggressive in identifying and prosecuting from participating in similar schemes. build on the significant time I’ve spent on those involved in marriage frauds and "The investigation is yet another exam- the Hill meeting with members of FAIR, and the myriad of other Tanton- related scams," U.S. Attorney Joseph P. ple of the Diplomatic Security Service's Congress on this critical subject. I look affiliated anti-immigration groups will Russoniello said. "People who attempt to vigilance in combating visa and passport forward to working with President Obama, ensure that the phones on Capitol Hill shut profit from these ruses will be brought to fraud," said DSS San Francisco Field my colleagues in Congress and representa- down and that they scream louder than justice. Those who knowingly avail them- Office Special Agent in Charge Patrick tives from law enforcement, business, anyone else. Their solution for our immi- selves of these ploys will be caught and Durkin. "We investigate multi-defendant labor organizations, the interfaith commu- gration crisis (actually, their solution for deported." criminal enterprises that broker in false nity, advocacy groups and others as we ANY crisis), is simply to deport all undoc- Also charged in this investigation were visas, false immigration forms, and other work on this important issue.” umented and legal immigrants, closing the Henry Navarro and Kelly Ecker. Navarro false documents, to keep imposters and Increase the Number of Immigrant door on the last person to leave. pleaded guilty to one felony count of con- criminals out of the country." Visas Rather than close your ears to the cur- spiracy for his role as an "official" witness Tsoi has been ordered to surrender to Issue: rent Healthcare debate, listen carefully, to one of the fake marriages. Navarro is begin serving her prison sentence Sept. 30. Nineteen years ago in 1990 Congress see where loudest shouts come from, and scheduled to be sentenced by Judge Alsup Statement by Secretary Napolitano revamped the entire employment-based then be ready for the same crowd to shout on Sept. 29, 2009. Ecker pleaded guilty to About August 20, 2009 White House ______Continued On Page 19 down immigration reform, but do so louder, bolder and with more vehemence. Be ready for the name calling, the anti- American accusations, and the nastiness to be worse than we have ever experienced. Be prepared now to engage in constructive advocacy, but also learn from those sup- porting healthcare reform. If any reform of either healthcare OR immigration happens in the next six to ten months it will happen ONLY if the supporters are louder (but nicer) and more insistent than the opposers (to coin a phrase). You now have a history lesson happen- ing before your eyes. Recognize it, learn from it, and whatever you do, don’t repeat it. Thanks to attorney Charles Kuck for allowing us to reprint this article from his Blog.

Bay Area sham marriage broker sentenced to 19 months in prison SAN FRANCISCO - Kwan Tsoi, also known as Joyce Cai, was sentenced in federal court today to 19 months in prison, and ordered to forfeit $250,000 in proceeds, for arranging fake marriages so her foreign national clients could obtain immigration benefits they did not qualify for. The prosecution is the result of a joint investigation by U.S. Immigration and Customs Enforcement (ICE) and the Diplomatic Security Service (DSS). Tsoi admitted in court that for a year, beginning in February 2007, she headed a conspiracy that arranged sham marriages for foreign nationals with U. S. citizens. Tsoi charged her clients, whom she recruited by advertising in Chinese-language newspapers, approximately $30,000 for her services. Tsoi brokered these marriages in the Tenderloin neighborhood of San Francisco, where federal search war- rants were served on her business in June 2008. Tsoi pleaded guilty in April to one count of conspiracy, six counts of marriage fraud and five counts of false statements on immigration documents. As part of her guilty plea, she admitted she brokered nine fake marriages in order to exploit U.S. immigration law. Tsoi also admitted she submitted or assisted in submitting spousal petitions to U.S. Citizenship and Immigration Services requesting her clients be granted lawful permanent residence or "green cards" based on their fraudulent marriages to American citizens. "Marriage fraud and other forms of immigration benefit fraud undermine the integrity of our nation's legal immigration system and potentially rob deserving immigrants of benefits they rightfully deserve," said Mark Wollman, special agent in charge of the ICE Office of Investigations in San Francisco. "This sentence should send a clear message that ICE is working aggressively to target those 8 THE QUEENS BAR BULLETIN – NOVEMBER 2009

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He is BADWAY, ESQ. - - ENCYCLOPEDIA forgot Louis Kass or his book. facilitating a direct review of an expert in federal securities law, OF NEW YORK CAUSES OF His slim, 62-page work became the potential universe of caus- enforcement, and compliance with numer- ACTION: ELEMENTS AND DEFENS- for decades my most consulted es of actions, principles, and ous articles to his credit. He is also an ES [2009]. Unless you are willing to have reference. Whenever I drafted defenses, and tables of cases adjunct professor of law at Brooklyn Law your complaint dismissed by a poorly pleadings, made a substantive and statutes. The CD, an exact School teaching securities fraud enforce- drafted pleading, you will buy motion to dismiss, prepared to copy of the printed book, con- ment and a speaker at many American Bar BADWAY’s reasonably priced and indis- take an examination before trial, tains thousands of links for Association forums. He is also chosen fre- Howard L. Wieder pensable book that comes with a CD. If or fought for or against summa- easy searching and research. quently, based on his expertise, by state you’d like to dismiss an adversary’s com- ry judgment, I always consulted Even further, unlike the old court judges in New York as a receiver of plaint or answer for failing to list a neces- Kass’ work. I so much adored his work cases cited by Kass, Badway makes a properties, a referee, and other fiduciary sary element of the cause of action or affir- that I made numerous photocopies of the point of citing pertinent recent cases appointments because of his financial and mative defense, this is the book that you out-of-print work to give to fellow litiga- throughout the ENCYCLOPEDIA OF legal expertise, not to mention his accessi- will consult. tors and made them as gifts to newly-mint- NEW YORK CAUSES OF ACTION: bility and friendliness. From my desk in Justice Markey’s ed lawyers. ELEMENTS AND DEFENSES. chambers, I review hundreds of motions to For years, I wondered why no one has I tested the work for ease of research by GOLDFEDER’S MODERN ELEC- dismiss a pleading, and some of them filled the void for this essential subject searching for particular causes of action TION LAW - - 2ND Edition would not have been made if the draftsman matter after Kass’ demise. Now entering and defenses. For example, under what by Jerry Goldfeder had researched the necessary elements of the breach, filling the vacuum, and here circumstances can a minor disaffirm a con- New York Legal Publishing Company their cause of action or affirmative to stay for decades, I hope, is ERNEST tract as a defense? What are all of the ele- One Loose-leaf volume $ 135.00 Plus: defense. BADWAY eliminates hours of EDWARD BADWAY, Esq. ments of an action for constructive trust? Shipping/handling $ 7.50 legal research by positing the necessary The excellent and thorough common word Orders charged to American Express, elements of hundreds of causes of action The ENCYCLOPEDIA OF NEW index found in Badway’s ENCYCLOPE- VISA & MasterCard and affirmative defenses in one remark- YORK CAUSES OF ACTION: ELE- DIA OF NEW YORK CAUSES OF may be called in to (518) 459-1100 or toll able book with an accompanying CD. MENTS AND DEFENSES by ERNEST ACTION: ELEMENTS AND DEFENS- free at 1-800-541-2681. More details and ordering information EDWARD BADWAY, Esq., is a single ES was excellent. Orders may also be faxed to 1-518-459- on this excellent book follow. This book volume, annual paperback and CD. It is a Every litigator, trial lawyer, and general 9718. is my top pick in 2009 for your office quick starting point for virtually any civil practitioner in New York, and also judge If paying w/check, mail shipping info with desks. BADWAY’s book is a remarkable, case containing New York civil actions, and law clerk, should have within easy check to: profitable volume from which you’ll get a legal principles, and defenses. The book reach these essential works: ENCYCLO- New York Legal Publishing Corp lot of mileage! compiles, outlines, and indexes theories of PEDIA OF NEW YORK CAUSES OF 136 Railroad Avenue Ext. For those who practice in the specialty recovery under New York law. There is ACTION: ELEMENTS AND DEFENS- Albany, NY 12205 of Election Law, you will know that with nothing like it available to NY practition- ES by ERNEST EDWARD BADWAY, one minor, picayune mistake, a candidate ers. The ENCYCLOPEDIA OF NEW Esq.; BYER’S CIVIL MOTIONS, edit- In the late 1990s, I worked as a referee can be knocked off the ballot. A new, YORK CAUSES OF ACTION: ELE- ed by Howard Leventhal, Esq. [previ- in Election Law matters in Supreme Court, Second Edition of MODERN ELEC- MENTS AND DEFENSES lists over 450 ously reviewed in this column], the Kings County, making rulings over con- TION LAW [2009] by JERRY H. causes of action and numerous defenses by CPLR, NEW YORK PRACTICE by tentious contests. I wished I had this book GOLDFEDER, ESQ., published by New dividing them into 16 sections: Prof. DAVID SIEGEL, and the most then. Here are some important reviews of York Legal Publishing, www.nylp.com, *Agency or Fiduciary Based Causes of recent edition of the PATTERN JURY Goldfeder’s Second Edition of MOD- helps you avoid the pitfalls. Details are Action INSTRUCTIONS. ERN ELECTION LAW: below, following my more detailed *Attorney and Legal Services Based The newly published 2009 [1st] edi- review of BADWAY’s book. Causes of Action tion of ENCYCLOPEDIA OF NEW “A Light In An Election Law *Banking, Commercial Paper and Creditor YORK CAUSES OF ACTION: ELE- Darkness.” ENCYCLOPEDIA OF NEW YORK Based Causes of Action MENTS AND DEFENSES, accompa- The Daily Politics - NY Daily News, CAUSES OF ACTION: ELEMENTS *Constitutional Based Causes of Action nied by a handy CD, despite focusing on Dec. 4, 2007 AND DEFENSES *Contract or Quasi-Contract Based Causes New York law, should be on litigator’s BY ERNEST EDWARD BADWAY, of Action desks throughout the United States “Authoritative guide to New York ESQ. *Corporate and Partnership Based Causes because of the excellent way it dissects State’s Byzantine election law. Moreover, [1st ed. 2009, with annual updates, addi- of Action and lists over 450 causes of action and it’s surprisingly accessible, not only to tions, and revisions] *Damage Related Based Causes of Action defenses. To say that ENCYCLOPE- candidates and their supporters, but to 650+ pages with accompanying CD, *Employer-Employee Based Causes of DIA OF NEW YORK CAUSES OF political junkies and concerned layman.” $169.95 Action ACTION: ELEMENTS AND DEFENS- ISBN [International Standard Book *Equitable Based Causes of Action ES is a valuable edition to a lawyer’s The New York Times, Jan. 20, 2008 Number] 978-1-57625-363-2 *Insurance Based Causes of Action reference library is an understatement, Order online at lawcatalog.com/nycoa *Judicial Based Causes of Action like saying that lungs are helpful to “If you need to understand New York or send email to Ms. Monica Curry at *Real Property Based Causes of Action breathing. The book is indispensable. election law, this book is for you. [email protected] *Statutory Based Causes of Action Ignore it and resist purchasing it - - at Goldfeder is a law professor who has spe- *Tort Based Causes of Action your professional peril. I shun play of cialized in New York election law and he Over 30 years ago, I was privileged to *Trust and Estate Based Causes of Action surnames, but the author’s name says it has a gift for explaining it clearly.” meet the late LOUIS A. KASS, Esq., *Miscellaneous Defenses all. If you do not purchase this superb ______Continued On Page 14 lawyer, author, and vibrant lecturer, who volume, you will truly be in a bad way! specialized in teaching a successful course When appropriate, the Cause of Action “How to Write for the Bar Examiners.” will reference authorities for defense, Kass was a devoted lecturer who genuine- including statutes of limitation. The ly cared for young, aspiring lawyers. ENCYCLOPEDIA OF NEW YORK More work than you can get to? Striking fear in candidates for the New CAUSES OF ACTION: ELEMENTS York Bar was the fact that then, at least AND DEFENSES is a quick reference to Not enough hours in the day? circa 1978-1979, half of the dreaded the 2- unfamiliar subjects and a welcome day exam consisted of writing 12 essays resource for firms without an extensive Let me help you increase your profits on an assortment of legal subjects. law library or research budget. and get that work off your desk. Every student taking Kass’ course got a This book is essential for all libraries, copy of his “Necessary Elements of for law firms of all sizes, solo practition- Call today for top-quality research, Common Legal Actions” [Gould ers, and government agencies and courts. Publications, with copyrights from 1958- The ENCYCLOPEDIA OF NEW writing, & litigation support. 1978]. My copy has a 1978 copyright so I YORK CAUSES OF ACTION: ELE- must have received one of the last copies MENTS AND DEFENSES should be of this treasured 62 page booklet]. Kass’ your starting point in analyzing client GAIL M. BLASIE, ESQ. pagination on his Table of Contents, problems and preparing pleadings by pin- Licensed in NY and CA strangely or carelessly, was way off, and pointing the cause of action and its ele- the cases he cited were very old. The con- ments before employing more costly (516) 457-9169 tent, however, was invaluable. Kass dis- research. It is an inexpensive desk refer- cussed the most frequently encountered ence for virtually any case that walks in 1134 Lake Shore Drive, Massapequa Park, NY 11762 www.blasielaw.com 10 THE QUEENS BAR BULLETIN – NOVEMBER 2009

PHOTO CORNER

Annual Golf Outing September 10, 2009

Al Lapinski and Peter Gorycki David Adler, Scott Kaufman and Hon. Peter Kelly

George Nashak, Paul Pavlides, Ed Rosenthal, Ralph Pliskin and Drew Wasserman Gerry Chiariello, Chanwoo Lee and Dom Chiariello

Guests at Annual Golf Outing, September 10, 2009 Guy Vitacco, Jr. and Ted Gorycki Hon. Bernice Siegal, Larry Litwack, Hon. William Viscovich

Hon. Joseph Risi and Joseph Risi, Jr. Joe Baum and Hon. Joseph Dollard

Photos by Arthur Terranova THE QUEENS BAR BULLETIN – NOVEMBER 2009 11

PHOTO CORNER

Recent Significant Decisions in our Appellate Courts Tuesday September 15, 2009

Abby Goldstein, Sue Beberfall, Hon. Seymour Boyers, Hon. Alan Chevat, Chief Court Attorney, Appellate Andrew C. Fine, Director, Appellate Litigation, NYC Stephen Knopf and Randy Unger Division, Second Department Legal Aid Society

Bob Bellone, David Wasserman, Ilene Reichman, Al Lapinski, Chawoo Lee and Violet Samuels Hon. Stephen Knopf, Tom Graham and Bert Herman

Attendees to Recent Significant Decisions from our Appellate Courts

J. Gardiner Pieper, Professor of Law and Michael A. Simons, newly appointed Dean of St. John's James Galleshaw, Greg McGuiness and Keith Sullivan President of the Pieper Bar Review Law School

Paul Shechtman, Professor of Law at Columbia Law School and Criminal Law Practitioner Tom Graham, George Nashak, Greg Brown, Paul Pavlides Spiros A. Tsimbinos, Moderator and Joe Baum

Photos by Walter Karling 12 THE QUEENS BAR BULLETIN – NOVEMBER 2009

suant to Judiciary Law § 90(4)(f). ure of discipline to impose, the Court Stanley E. Gelzinis (July 2, 2009) noted that the respondent is 67 years of Court Notes The respondent was immediately sus- Jay M. Lipis, admitted as Jay Merrill age; is in the early stages of Alzheimer’s Continued From Page 4 ______pended from the practice of law, pending Lipis (August 4, 2009) disease; and has no prior criminal or disci- further proceedings, upon a finding that he By order of the Supreme Judicial Court plinary history. personal, financial and/or business inter- was guilty of professional misconduct for Suffolk County in the Commonwealth ests as principal of the brokerage); improp- immediately threatening the public interest of Massachusetts entered October 10, The Following Suspended Attorneys erly disbursing funds held by him as a based upon substantial admissions under 2008, and effective 30 days later, the Were Reinstated To The Practice Of fiduciary, incident to his practice of law, oath and other uncontroverted evidence. respondent was suspended from the prac- Law By Order Of The Appellate without the client’s authorization; and fail- tice of law in Massachusetts for a period of Division, Second Judicial Department: ing to produce required bookkeeping Daniel D. Tartaglia, admitted as Daniel two years. Upon a motion for reciprocal records notwithstanding the Grievance David Tartaglia, a suspended attorney discipline pursuant to 22 NYCRR § 691.3, Frederic Grae, admitted as Frederic Committee’s request for same. He was (July 14, 2009) he was suspended from the practice of law Reichenbach Grae suspended from the practice of law for a Following a disciplinary hearing, the in New York for a period of two years, May 26, 2009 period of five (5) years, commencing June respondent was found guilty of having commencing September 4, 2009, and con- 22, 2009, and continuing until the further been convicted of a serious crime, to wit, tinuing until the further order of the Court. Cynthia V. Tague, admitted as Cynthia order of the Court. failing to file a New York State income tax Robert I. Oziel, admitted as Robert Vanden Heuvel return, which conduct reflects adversely Israel Oziel (August 4, 2009) May 26, 2009 Charles Adam Willinger (June 11, 2009) on his honesty, trustworthiness or fitness Following a disciplinary hearing, the The respondent was immediately sus- as a lawyer and is prejudicial to the admin- respondent was found guilty of failing to John F. Tague III pended from the practice of law, pending istration of justice. He was suspended preserve funds entrusted to him and con- May 26, 2009 further proceedings, upon a finding that he from the practice of law for a period of one verting those funds to uses other than those was guilty of professional misconduct year, commencing immediately, and con- for which they were intended; engaging in Vincent F. Siccardi immediately threatening the public interest tinuing until the further order of the Court. conduct that reflects adversely on his fit- July 21, 2009 as a result of his failure to cooperate with ness as a lawyer by reason of the forego- the Grievance Committee. Mark C. Kaley, admitted as Mark ing; failing to promptly deliver to clients, At The Last Meeting Of The Grievance Christopher Kaley (July 21, 2009) at their request, funds in his possession Committee For The Second, Eleventh Charles J. Diven, admitted as Charles Following a disciplinary hearing, the that the clients were entitled to receive; And Thirteenth Judicial Districts, The James Diven (June 23, 2009) respondent was found guilty of neglecting engaging in conduct that reflects adversely Committee Voted To Sanction Following a disciplinary hearing, the a legal matter entrusted to him by failing to on his fitness as a lawyer by reason of the Attorneys For The Following Conduct: respondent was found guilty of engaging file and serve a motion for a default judg- foregoing; engaging in conduct involving in conduct adversely reflecting on his fit- ment in an action in Supreme Court, dishonesty, fraud and deceit by providing Failing to re-register as an attorney with ness to practice law by failing to properly Queens County and engaging in conduct a client with false and misleading informa- the New York State Office Of Court identify his attorney escrow account, fail- involving dishonesty, fraud, deceit or mis- tion as to the status of her legal matter; and Administration (4) ing to safeguard funds entrusted to him in representation, which reflects adversely on engaging in conduct that reflects adversely breach of his fiduciary duty, simultaneous- his fitness as a lawyer, by creating ficti- on his fitness as a lawyer by reason of the ly representing parties with differing inter- Aiding the unauthorized practice of law; tious court documents and providing them foregoing. He was suspended from the ests, representing a party against a former allowing a paralegal to use the attorney’s to a client for the purpose of misleading practice of law for a period of five years, client in a substantially related matter, and notary stamp and sign his or her name; and the client about the status and progress of commencing September 4, 2009, and con- neglecting legal matters entrusted to him; lacking candor before the Grievance their lawsuit. He was suspended from the tinuing until the further order of the Court. and engaging in conduct involving dishon- Committee practice of law for a period of three years. esty, fraud, deceit or misrepresentation by William R. Kelly (August 5, 2009) furnishing a fabricated document to the Improperly withdrawing from a case; Alexander M. Kaplan, admitted as The respondent was immediately sus- Grievance Committee. He was suspended neglecting a matrimonial matter; and fail- Alexander Michael Kaplan (July 21, pended from the practice of law, pending from the practice of law for a period of ing to promptly cooperate with the 2009) further proceedings, upon a finding that he five years, commencing July 24, 2009, and Grievance Committee On February 6, 2009, the respondent was guilty of professional misconduct continuing until the further order of the was found guilty in the United States immediately threatening the public interest Court. Failing to satisfy a judgment arising out District Court for the Southern District of based upon substantial admissions under of a fee arbitration award, which was fully New York, after a jury trial, of conspiracy oath and other uncontroverted evidence. Sheldon M. Krupnick, admitted as litigated to commit bank fraud, wire fraud and mail Sheldon Martin Krupnick (June 30, fraud (count one); bank fraud (counts two, Stafford Henderson Byers (August 11, 2009) Intentionally deceiving the Monroe three, four, seven, eight and nine); wire 2009) Following a disciplinary hearing, the County Court by executing and filing RJIs fraud (counts five, six and ten through fif- Following a disciplinary hearing, the respondent was found guilty of engaging that the attorney knew contained false teen); and mail fraud (counts sixteen respondent was found guilty of violating in conduct that reflected adversely on his affirmations and prejudicing the adminis- through eighteen), for a total of 18 federal his fiduciary obligations by failing to honesty, trustworthiness, or fitness as a tration of justice by avoiding appearances felony counts. He has not yet been sen- maintain and preserve funds belonging to lawyer; engaging in conduct involving dis- before judges the attorney believed to be tenced. The respondent was immediately another person that were entrusted to him; honesty, fraud, deceit or misrepresenta- unfavorably disposed to his clients’ inter- suspended from the practice of law, pend- misappropriating funds belonging to tion; engaging in conduct prejudicial to the ests ing further proceedings, based upon his another person that were entrusted to him, administration of justice; and engaging in having been found guilty of a serious by withdrawing funds from his attorney conduct that adversely reflects on his fit- Neglecting a legal matter and failing to crime pursuant to Judiciary Law § trust account for his personal use; com- ness as a lawyer by completing a previous- adequately supervise the work of non- 90(4)(f). mingling personal funds with funds ly-signed blank deed and notarizing that lawyers employed by his or her firm belonging to another person, by depositing deed approximately seven years after it Barry R. Feerst, admitted as Barry personal funds into his attorney trust had been signed, without the knowledge or Failing to issue required billing state- Roy Feerst (July 22, 2009) account; failing to make accurate entries of consent of the party who signed the deed ments in a matrimonial matter and taking a On November 2, 2008, the respondent all financial transactions connected to his in blank, and by delivering the then-com- legal fee from the proceeds of sale of the was sentenced in the United States District attorney trust account in a ledger or simi- pleted deed to a person the respondent marital residence without reducing such Court for the Eastern District of New York lar record at or near the time of the trans- knew was involved in a pending lawsuit agreement to writing to a non-jail sentence for a violation of 18 actions; and engaging in conduct that regarding the subject matter of the deed. USC § 371. He was immediately suspend- reflects adversely on his fitness as a lawyer He was suspended from the practice of law ed from the practice of law, pending fur- by reason of the foregoing. In considera- Issuing escrow checks before determin- for a period of five years, commencing ther proceedings, based upon his having tion of substantial mitigating factors, the ing that corresponding transfers of funds to July 30, 2009, and continuing until the fur- been found guilty of a serious crime pur- respondent was suspended from the prac- the escrow account had been made; issuing ther order of the Court. tice of law for a period of one year, com- escrow checks payable to “cash;” and fail- mencing September 11, 2009, and contin- ing to maintain required bookkeeping If you or someone you know is having a problem with alcohol, uing until the further order of the Court. records drugs or gambling, we can help. The Following Attorneys Were Publicly Diana J. Szochet, Assistant Counsel to Censured By Order Of The Appellate the State of New York Grievance To learn more, contact QCBA LAC for a confidential conversation. Division, Second Judicial Department: Committee for the Second, Eleventh and Thirteenth Judicial Districts, and Charles H. Reinhardt (May 19, 2009) Immediate Past President of the Confidentiality is privileged and assured under Section 499 of the Following a disciplinary hearing, the Brooklyn Bar Association, has compiled Judiciary Laws as amended by Chapter 327 of the laws of 1993. respondent was found guilty of having this edition of ROLL CALL. The mate- been convicted of a serious crime involv- rial herein is reprinted with permission of the Brooklyn Bar Association. Lawyers Assistance Committee ing theft and conduct adversely reflecting on his honesty, trustworthiness and/or fit- 1 Confidential Helpline 718 307-7828 ness as a lawyer as a result of the forego- Mr. Drakes has since been disbarred ing. In determining an appropriate meas- on unrelated charges THE QUEENS BAR BULLETIN – NOVEMBER 2009 13

Court of Appeals held that claims, if true, the defendant to recall the juror’s identity of prejudice was not rebutted by the An Analysis of the that members of the jury in a homicide at that time, but he chose not to challenge People so as to justify setting aside the prosecution discussed the case on several her placement on the jury and, in fact, verdict. The court held that the verdict Motion to Set occasions before submission in the pres- actually requested that she be restored to should not have been set aside without a ence of the general public, expressed the jury panel under “Batson”, after the showing as to what extra-record material views as to the guilt or innocence of the People had used a Peremptory Challenge came before the jury, if any, and its impact Aside the Verdict: defendant and as to certain witnesses in to remove her.25 on the jurors’ opinions and its ability to public places, and prior to rendition of a In general, a jury verdict cannot be render a fair verdict. Subsection 21 verdict, and from the jury room, carried on impeached by probes into the jury’s delib- In the same way in People v. Horny40, 26 ______conversations and received communica- erative process. People v. Maragh . Also, the Appellate Division First Department Continued From Page 1 tions form prosecution witnesses through in People v. Testa27 the New York State held that publicity concerning general overwhelming evidence. open windows, empowered the trial court Court of Appeals stated that examination claims of police brutality, without any ref- Again, in People v. Costello3, the to grant a new trial. of the jury’s deliberative process to assess erence to the defendant, was not prejudi- Appellate Division Second Department Similarly in People v. Romano14, the claims of improper jury influence must be cial to the defendant, especially where the held that the trial judge is vested with Appellate Division Second Department performed with caution, for inquiry into defendant did not establish that the jury broad discretion in ruling on the issue of held that the defendant was entitled to such process with a purpose of impeaching deliberations were poisoned by this media juror prejudice.4 have the jury verdict set aside on the a verdict should not be undertaken, except publicity, since there was no claim that Another general rule interpreting this ground of juror misconduct, where there in extraordinary circumstances.28 any juror read the article, and only one particular statutory language concerns, was evidence that the jurors and alternate There is varying case law as to whether juror claim that the headline had any influ- which concerns itself with proper, or jurors discussed trial testimony, credibility a juror’s use of extraneous information can ence on him.41 rather improper, juror conduct, is the stan- of witnesses, and defendant’s guilt or constitute improper conduct. Thus, in There is also a rule concerning juror dard of review. In general, one may say, innocence before deliberations com- People v. Brown29, the New York State note-taking. In People v. Saunders42, the that the standard of review as to a juror’s menced, that some jurors and alternate Court of Appeals held that “improper trial court held that note taking by a juror, alleged misconduct is that it must create a jurors read and discussed newspaper arti- influence” includes well intentioned jury and use of notes during deliberations, cre- substantial risk of prejudice to the rights of cles about the case, and that jurors and conduct, which tends to put the jury in ated a likelihood that the rights of the the defendant, in some way. Thus, in alternate jurors engaged in improper com- possession of information not introduced defendant were substantially prejudiced. People v. Maragh5, the New York State munications during deliberations.15 at trial. In People v. Saunders30, the trial People v. Mann43 stated that where the Court of Appeals held that a reviewing Generally, it may be said, that written court held that the cumulative effect of evidence permitted a finding that the juror court should evaluate whether a juror’s communications by or with jurors to the four acts of juror misconduct, which who took unauthorized notes during a trial alleged misconduct has created a substan- court by one juror to the Foreman of the involved outside influences and extrane- did not use those notes in any significant tial risk of prejudice to the rights of the jury, or even a letter, sent by a juror, to the ous material, led to the conclusion that the way, during deliberations, so that no prej- defendant by coloring the views of the District Attorney’s Office applying for the verdict was affected by outside influences udice resulted to the defendants, even other jurors, as well as her own. position of Investigator is not a ground, and extraneous material.31 though the court never issued cautionary In the same way, in People v. Rivera6, under this Statute, to set aside a verdict.16 There is a rule as to where a juror does instructions with regard to the taking of the Appellate Division Second Generally, if a juror examines exhibits, independent research. This is a ground for the notes, since the jurors were never Department held, fashioning almost the this is not a basis for a new trial under this the granting of this Motion.32 authorized to take the notes. People v. exact rule as stated in Maragh, that gener- Statute.17 There are a number of cases concerning Dexheimer44 states a rule that where the ally absent a showing of prejudice to a There is varying law concerning juror’s the matter of alcohol and drug use by defendant never requests a cautionary substantial right, proof of juror miscon- experimentation. Thus, in People v. jurors. For example, in People v. instruction on note-taking, or makes any duct does not entitle a defendant to a new Santi18, the Court of Appeals held that it Brandon33, the trial court held that the objection regarding note-taking during trial, since not every misstep by a juror would be improper for a juror to engage in consumption of alcohol by a juror during trial, the defendant waives any claim on rises to the adherently prejudicial level at experimentation, investigation, and calcu- deliberations, in prosecution on multiple this issue. which reversal is automatically required.7 lation that necessarily relied on facts out- counts of Petty Larceny, was not presump- In general, there is a rule that where There are a number of sub-rules inter- side the record and beyond the under- tively prejudicial. The Brandon Court jurors show overt prejudice or bias, this is preting this particular, discrete rule. Thus, standing of the average juror. Jurors are went on to state that the jurors’ alleged use a ground for granting this Motion. In it has been held that the failure to chal- not, however, the court stated, required to of alcohol during deliberations was not an People v. Leonti45, the New York Court of lenge a juror by the reason of the want of check their life experiences at the court- “outside influence” on the jury, and jury Appeals held that a juror’s disqualifica- knowledge as to the cause is not a ground room door. testimony with respect thereto was inad- tion, shown by undenied Affidavits as to for this Motion.8 On the other hand, in People v. Kelly19, missible to impeach the verdict in prose- his statement after the rendition of a ver- There is a general rule that a verdict ren- the Appellate Division First Department cution on multiple counts of Petty dict of conviction that he would not dered by a jury containing some persons, held that jurors may conduct a jury room Larceny. believe a person of defendant’s nationality who should have been excluded for tech- crime reenactment or demonstration, pro- People v. Edgerton34 states a rule about under oath, required a new trial. nical reasons, is not void. This rule is vided it involves no more than the juror’s jurors reporting defendant’s bad conduct Similarly, in People v. Webb46, the extended to where a verdict is rendered in application of everyday experiences, per- or prior convictions to other jurors. The Appellate Division First Department stat- the presence of a juror, who was disquali- ceptions, and common sense to the evi- Edgerton Court held that the improper ed that a juror’s response when asked if he fied because of prior jury service.9 dence.20 conduct by a juror, who during delibera- would be able to keep an open mind in It has been held that improper commu- There is varying law, concerning allegations related to other jurors information light of knowledge of defendant’s previ- nication with the jury can be a ground for tions of improper juror conduct in the that the defendant, who was on trial for ous conviction, that evidence of prior granting this Motion. Thus, in People v. course of Voir Dire. Thus, in People v. Arson, had set fires in other counties, tes- crimes would partially sway his decision Khalek10, the New York State Court of Rodriguez21, the New York State Court of tified vacating Arson convictions. On the and would effect his judgment, constituted Appeals held that the defendant was enti- Appeals held that the jury verdict, convict- other hand, in People v. Caputalo35, the sufficient grounds to dismiss the juror for tled to have the jury’s final verdict set ing the defendant of Criminal Sale of a trial court held that the defendants were cause, requiring reversal. The court noted aside as a remedy for the Court Controlled Substance, would not be auto- not entitled to a new trial because two that the defense had to exercise a Supervisor’s usurpation of the Judicial matically set aside on the ground that the jurors had learned of the defendant’s con- Peremptory Challenge and thus exhausted function in telling the jurors, who had been juror, during Voir Dire, intentionally convictions on a former trial.36 all of its Peremptory Challenges prior to directed to cease deliberation for the day, cealed his acquaintance with the county In general, there is a sub-rule that juror the end of jury selection.47 that their verdict finding the defendant not prosecutor, who was not involved in the access to law book materials is not be a Also, there is a rule concerning separa- guilty on all counts would not be reported prosecution of the defendant’s case. basis for granting this Motion. Thus, in tion of the jury as a ground for the granti- to the court that night. The jurors were On the other hand, in People v. People v. Priori37, the New York Court of ng of this Motion, if the separation is of a sequestered overnight, and rather than Ceresoli22, the Appellate Division Fourth Appeals held that the fact that a juror had sufficient length of time. This can be the reporting the same verdict in the morning, Department held that the county court was a copy of the Penal Code and the Code of ground for the granting of this Motion, continued their deliberations and later required to set aside a Grand Larceny ver- Criminal Procedure, which he read and although the Motion is not easily or fre- reported their verdict that differed from dict, on the ground of jury misconduct, exhibited to some of his fellows, but which quently granted.48 their unreported verdict of the previous where the juror indicated, during Voir was taken from him as soon as it was dis- CONCLUSION evening. Dire, that he was not familiar with the covered, was not a ground for a new trial, This article has analyzed and sought to People v. Flores11 also restates this rule. club, which the victim was charged of in the absence of evidence that it affected indicate the proper interpretation and con- In Flores, the Appellate Division Second theft of, but in fact, the juror was a former the result or was prejudicial to the defen- struction of improper or proper juror con- Department held that the court officer member of that club.23 dant.38 duct within the context of sub-section (2) improperly usurped the trial court’s func- In general, it may be said, also, that the There is also a rule concerning the of Section 330.30 of the Criminal tion by permitting the jury to believe that juror’s acquaintance with the defendant is juror’s use of news reports. In general, the Procedure Law. There are a number of it could allow one of their members to not a basis for granting this Motion. Thus, juror’s exposure to news reports will not basic rules. First, the trial court is invest- translate a letter, written in Spanish, which in People v. Owens24, the Appellate mandate the granting of this Motion. ed with broad discretion on the matter. injected non-record evidence into the cal- Division Secdond Department held that People v. Smith39 is apropos of this rule. Second, the juror’s alleged misconduct culus of judgment, which the defendant the juror’s failure to disclose, during jury In Smith, the trial court improperly found, must create a substantial risk of prejudice could not test or refute by a cross-exami- Voir Dire, that she knew the defendant did after an abortive preliminary Hearing, that to the rights of the defendant in some way. nation, thus warranting a new trial.12 not require reversal, on the ground of jury a newspaper article, read by and related to The case law sets forth a number of spe- There is a rule concerning discussions or misconduct, since the juror revealed suffi- jurors during deliberations was presump- cific rules. For example, the failure to conversations among jurors, concerning cient evidence, during Voir Dire, to allow tually prejudicial and that the presumption challenge a juror by reason of the want of the case. Thus, in People v. Durling13, the ______Continued On Page 18 14 THE QUEENS BAR BULLETIN – NOVEMBER 2009 The authoritative volume covers a host · Polling Site Issues and New York State Board of Elections Books At The Bar of issues, including: · Election Day Issues Rules and Regulations for your conven- ______· Post-Election Day Issues ience. For more information visit, Continued From Page 9 · Eligibility and Residency Issues · Ethical Issues for Election Lawyers www.nylp.com. Ballot Access News, Jan. 1, 2008 · Getting on the Ballot in New York · Money - New York’s Matching Funds · The Petitioning Process in New York Program HOWARD L. WIEDER is the writer “Candidates will study it. Lawyers will · Rules and Requirements for Petitioning · Voting for President of both “THE CULTURE CORNER” reference it. Board of Elections personnel · Staying on the Ballot: Objections, Board · Electoral College and the “BOOKS AT THE BAR” will rely on it. Supreme Court referees will Hearings and the Judicial Process · Electing the President columns, appearing regularly in THE know it by heart. Judges will cite it as the · Sudden Death, Convictions, QUEENS BAR BULLETIN. He is also authority.” Disqualifications and other Extraordinary JERRY H. GOLDFEDER’S looseleaf the Principal Law Clerk to Justice Charles Situations volume of MODERN ELECTION LAW J. Markey, of New York State Supreme The New York Law Journal, March 25, ND 2008 · Party Affiliation [2 Edition] also contains the most cur- Court, Queens County, in Long Island · Money and Politics in New York rent version of New York’s Election Law City.

CLASSICAL MUSIC CHOICES and ACADEMY RECORDS on 12 West 18th cal pianist, who helped build Medici The Culture CDs and MUSIC LABELS Street, between 5th and 6th Avenues, clos- Classics. The better funded NAXOS, a The natural attraction, as I urged in an er to Fifth Avenue, in Manhattan. All the known distributor of classical music, Corner earlier column, for neophytes to classical way in the back of the store, in the Budget argued successfully that the plaintiff failed music, is to go with established labels and Section of $3.99, you will find outstanding to prove likelihood of confusion. ______Continued From Page 6 artists. I would like to amend that sugges- CDs by talented artists. It is because they Amazingly, HON. RICHARD J. HOL- tion. Once you have heard the repertoire are unknown and do not have the means WELL, United States District Judge, any accent, shows that he is as gifted in as performed by masters, do try to experi- SDNY, ruled, on a motion for a prelimi- Chinese drama, as he is in English-spoken for greater publicity and promotion, that ment. There are new and emerging labels are offered by the established, major nary injunction, in favor of defendant plays. The play closed on October 25, - - such as Bridge, Ivory, Profil, ARS NAXOS, in Medici Classics Productions, 2009, with packed audiences. Attendees labels, that these excellent discs do fetch Music, Profil, and Oehms Classics - - just the price of $20 each. At $3.99 you can- LLC v. Medici Group LLC, 590 F Supp who understand only English should sit to to mention a few, that record the works of 548 [2008], and the memoranda of law at the middle or the left side of the theater [as not go wrong. I have not found these very talented artists who do not have the labels anywhere else in the City and cer- 2009 WL 1635603 and 2009 WL you face the stage] to catch the English agents and pull to get a major recording 1635604. More is yet to come as JUDGE translated subtitles. tainly not at a price of $3.99. Of course, label contract. New companies have ACADEMY RECORDS [tel. 212-242- HOLWELL will soon rule on a defense In light of the rapid fire changes pulled up the slack of powerhouse record motion for summary judgment. STAY MY 3000], open seven days a week, also car- between past and present sequences, companies as Deutsche Grammophon, TUNED!!! FATE IS NOT IN MY HANDS would be ries the artists featured on the established Decca, Universal, Chandos, Hyperion, and labels. See www.academy-records.com. better-suited for cinematic treatment. EMI. Gifted artists who cannot get a HOWARD L. WIEDER is the writer Some parts of dialogue, like the repetitive For lawyers interested in trademark major label usually raise the funds from infringement, a major fight is under way of both "THE CULTURE CORNER" urging for customers to taste the delicious grants and other means to get recorded. and the "BOOKS AT THE BAR" turnip cakes, could be cut or trimmed, on record labels between “Medici I would not ask you to spend $20 on a Classics,” “Medici Arts,” and “Medici columns, appearing regularly in THE especially if this worthy play is brought to CD, especially in these economic times, on QUEENS BAR BULLETIN, and is JUS- MY FATE IS NOT IN MY HANDS Masters.” One would think that this is an film. a new artist performing on a new label. TICE CHARLES J. MARKEY’S [Part Two] is slated to open in May, 2010. obvious case of trademark infringement, But the ONLY place in the City of New especially victimizing the owner of the Principal Law Clerk in IAS Part 32 of Please check out www.4seas.org for fur- York where you can try new CDs by very Supreme Court, Civil Term, in Long ther information. earlier mark, JEROME ROSE, accom- talented, but unknown performers is at plished and internationally known classi- Island City, Queens County, New York. THE QUEENS BAR BULLETIN – NOVEMBER 2009 15

Notice of Claim. Thereafter, in 2006, Management P.C. of the defendant surgeon read to the jury The Following plaintiff commenced another action Plaintiff underwent surgery on at trial, indicated that in general the spinal against NYCHHC seeking recovery for November 1, 1999 to remove a needle needle would be “obviously...quite ster- Summary of Second the same injuries. that was lodged in the right ventricle of ile” while in its packaging. In later let- Initially, the Court noted that since the her heart. She thereafter sued various ters, the surgeon wrote that the infection Department prior dismissal was not on the merits, it chiropractors and acupuncturists alleging presumably resulted from the spinal nee- would not have res judicata effect in this that they had negligently caused an dle being contaminated. Decisions in Medical matter. acupuncture or EMG needle to become Plaintiff’s expert testified that defen- Further, although the Court affirmed lodged in her chest. She also sued a Dr. dants departed from good and accepted Malpractice dismissal of plaintiff’s medical malprac- Garcia, alleging that he had misdiagnosed medical practice by using a contaminated tice and loss of services claims on statute and mismanaged her medical complaints. needle during the surgery. However, the Continued From Page 1 ______of limitations grounds (the infant’s claim Defendant Garcia’s motion for expert admitted that he did not know how was commenced well after the ten year Summary Judgment was denied, as plain- the contamination occurred, and that defendant’s affidavit revealed ongoing limitations period for an infant’s medical tiff raised a triable issue of fact by sub- there was no evidence that a surgeon or appointments and dental work relating to malpractice claim); the Court held that mitting the affidavit of an expert who nurse in the operating room knowingly a bridge within the 2 year statute of claims for allegedly inadequate supervi- opined that Garcia departed from good contaminated the needle or knowingly limitations. Accordingly, defendant’s sion and training of NYCHHC’s obstetric and accepted medical practice in his treat- used the contaminated needle. Based motion for Summary Judgment on statute personnel sounded in negligence, and ment of plaintiff, and that the departure upon this testimony, the Second of limitations grounds with respect to thus were timely asserted. was a proximate cause of plaintiff’s dam- Department reversed the Trial Court’s these teeth was denied. ages. dismissal at the close of plaintiff’s case, Dental Malpractice - leave to amend to The Second Department, however, and ordered a new trial, as it could be rea- Statute of Limitations - Continuous add punitive damages claims denied: granted the Summary Judgment motions sonably inferred that the defendants devi- Treatment: Piro v. Macura Kinzer v. Bederman of the acupuncture defendants, on the ated from accepted medical practice by Defendant’s motion of Summary Plaintiff’s motion for leave to amend grounds that they had submitted eviden- allowing the spinal needle to become Judgment on statute of limitations the complaint to add a demand for puni- tiary proof that the needles used during contaminated and using that needle, grounds denied based on the continuous tive damages was denied, since “punitive plaintiff’s acupuncture was composed of which caused plaintiff’s injuries. The treatment toll. damages are recoverable in a dental mal- stainless steel and were approximately Second Department also reversed the Defendant had performed a lap band practice action only where the defen- 0.22 to 0.25 millimeters in diameter, Trial Court’s ruling to the effect that procedure for obesity on November 12, dant’s conduct evinces a high degree of smaller than the needle which was plaintiff had failed to establish a prima 2003, and thereafter an umbilical hernia moral culpability or constitutes willful or removed from plaintiff’s heart. In sup- facie case pursuant to the doctrine of res surgery on May 7, 2004. Plaintiff then wanton negligence or recklessness”. port of their motion, the acupuncture ipsa loquitur. visited defendant a number of times defendants submitted an affidavit from a between May and December 7, 2004, to Discovery - plaintiff must give authori- metallurgical engineer who tested the CPLR 4404(a) - new trial granted - have the lap band adjusted and for treat- zations for psychological or psychiatric needle removed from plaintiff’s heart and verdict against the weight of the evi- ment of an infected hernia wound. treatment: Corbey v. Allam concluded it was not an acupuncture nee- dence: Lader v. Sherman Defendant expected plaintiff to return Defendant moved to compel plaintiff to dle. Plaintiff’s expert affidavit in opposi- The jury’s finding that defendant within four weeks of the December 7, provide authorizations for the release of tion was conclusory, lacked factual sup- departed from accepted medical practice 2004 visit, but plaintiff did not return certain psychological/psychiatric medical port, and failed to address the results of in performing surgery on plaintiff’s left until March 29, 2005 at which time records, and plaintiff opposed. The Court the scientific testing performed by defen- leg, but that the departure was not a prox- defendant examined the hernia wound noted that although a party may avoid dant’s expert. imate cause of plaintiff’s injuries, was which was infected and open, and decid- disclosure of such records by abandoning against the weight of the evidence since ed not to adjust the lap band until the claims of psychological or psychiatric Summary Judgment Granted - plain- the issues were so inextricably interwov- wound had closed. In the meantime, injury, the burden of establishing that tiff’s expert affidavit failed to address en as to make it logically impossible to plaintiff had also seen another surgeon there has been no waiver of the privilege causation: Murray v. Hirsch find a departure without also finding for treatment of the hernia wound. is on the party asserting the privilege, the In this delayed diagnosis of prostate proximate cause. The action was commenced on June 13, plaintiff in this case. Since plaintiff did cancer case, defendant’s motion for 2007, more than two years and six not unequivocally abandon her claims of Summary Judgment was denied at the Plaintiff’s Verdict Sustained - dam- months after the December 7, 2004 visit, psychological injury, the Court noted that trial level. Second Department reversed, ages reduced from $2,500,000.00 to but within the limitations period as to the her mental condition remained an issue, noting that plaintiff’s expert “completely $1,750,000.00: Novick v. Godec last visit on March 29, 2005. and therefore ordered that medical record failed to address the issue of how defen- It was within the province of the jury to Defendant moved to dismiss, claiming authorizations be provided. dant’s departure was a proximate cause of determine the credibility of plaintiff’s that he had last treated plaintiff for the plaintiff’s injuries”. expert’s testimony as well as the credibil- hernia wound on December 7, 2004, and Summary Judgment: Volovar v. ity of defendants who testified on their that the sole purpose of the March 29, Catholic Health System of Long Island CPLR 4401 - judgment at the close of own behalf. The evidence here was legal- 2005 visit was to adjust a lap band, which Inc. plaintiff’s case - new trial ordered: ly sufficient to support the jury’s findings he did not do on that date. Plaintiff in Plaintiff sought treatment from defen- Antoniato v. Long Island Jewish that the defendant departed from accepted opposition asserted that defendant treated dants for congestive heart failure. During Medical Center standards of medical practice and that him for the open hernia wound on March a consultation, defendant recommended Following a cervical discectomy, plain- such deviations were a proximate cause 29, 2005 and thus the action was timely that plaintiff undergo valve replacement tiff developed a serious infection that was of plaintiff’s injuries. However, the pursuant to the continuous treatment doc- surgery, but first required that he obtain later determined to have originated at the Court reduced the award for past pain and trine. surgical clearance from a pulmonologist C4-C5 level in her cervical spine. suffering from $1,000,000.00 to due to an underlying medical condition. Plaintiffs presented evidence showing $750,000.00, and reduced the award for The Court denied defendant’s motion, There was no evidence that decedent ever that the only instrument that penetrated future pain and suffering from noting that plaintiff adduced evidence obtained surgical clearance from a pul- C4-C5 was a spinal needle that was used $1,500,000.00 to $1,000,000.00. The that defendant’s treatment of plaintiff’s monologist or that he returned to defen- to identify the exact area where surgery Second Department decision does not hernia wound continued until March 29, dants to schedule surgery. He died less was to take place. Deposition testimony address the nature and extent of plain- 2005. The fact that plaintiff had consult- than two months later from cardiac arrest. tiff’s injuries. ed another doctor did not necessarily The Court granted defendants’ establish that he had lost his continuing Summary Judgment motion, holding that trust and confidence in the defendant, plaintiff failed to raise a triable issue of especially since plaintiff continued to fact. Plaintiff’s two expert affidavits visit the defendant thereafter. were speculative, as neither expert sup- ported his opinion that defendants provid- Wade v. NYCHHC ed decedent with inadequate treatment This case alleged injury to the infant because he lacked medical insurance. plaintiff at and around the time of her delivery on October 18, 1991. A prior Summary Judgment Granted in Part: malpractice suit commenced in 1996 was Swezey v. Montague Rehab and Pain previously dismissed for failure to serve a advertise to 27000 lawyers in Queens, Kings, New York, 866-867-9121 Nassau & Suffolk Counties 16 THE QUEENS BAR BULLETIN – NOVEMBER 2009

lator or a pass through the right computer but you will almost certainly need special- true for translation providers. In the Case Taking the Pain translation software can help you identify ized human review and translation for your of the Last-Minute Stipulations, the frantic the documents that matter most. Irrelevant most important documents. “At best, com- attorney called a translator who had Out of Foreign documents can be weeded out, and less puter translation will only be about 80% worked on the litigation for several years. important material can be gisted or sum- accurate,” says Joe Kanka, Vice President She quickly proposed a damage-control Language marized in a few lines or paragraphs – sav- of Corporate Development for eTera strategy, and translators, paralegals and ing time, translation costs, and document- Consulting, a litigation support firm based attorney were able to work together to handling headaches over the life of your in Washington, DC, “so we want a profes- complete the review in time for trial. Documents case. sional translator at the table from day one. Continued From Page 3 ______If you are managing a large litigation, it is That, to us, is absolutely critical.” Surprises are inevitable in legal work, find the right language services provider? critical to determine how much non-English And 80% accuracy looks a lot less but thinking critically about your timeline The ATA offers free, searchable online material you have, and in how many lan- impressive when you realize that you don’t and budget and working closely with qual- databases of its member translators and guages. Using a Unicode-compliant review know which 20% of your translation is ified linguists can make your project run translation agencies at www.atanet.org. platform to work with electronic documents inaccurate. For sensitive documents, a more smoothly. Veteran patent translator With the Advanced Search function, you such as e-mail messages and Microsoft® qualified human linguist is usually the best and ATA President-Elect Nicholas can tailor your search to the language pair Word documents is one solid answer, says solution. “Once the material has been win- Hartmann have seen this first-hand. and subject area you need, and even spec- e-discovery expert Conrad Jacoby, founder nowed down,” says Jacoby, “a qualified “Ideally, the law firm, its client, and the ify geographical distances for in-person of efficientEDD. “One of the biggest chal- translator or native speaker with the right translator work together, forming an effec- review. lenges for a litigation team is simply know- subject knowledge will almost certainly do tive partnership that enables all of us to Getting the right people is important: ing what they have,” he notes. “Fortunately, a better job analyzing non-English materi- keep our customers, earn their respect, and some “bilingual” reviewers are a waste of Unicode – a computing industry standard al than a monoglot reviewer working from enhance our professional reputations.” money at any price. Marjon van den that allows computers to encode and dis- computer translations.” Bosch, a professional linguist with exten- play most of the world's writing systems – About the Author: sive experience in document review, has made it dramatically easier to find Listening for added value A working linguist with more than 15 recalls several litigation matters involving unexpected foreign-language documents A good translator should also be able to years of translation experience, Lillian thousands of pages of Dutch. “A staffing and treat them appropriately during pro- connect the dots, seeing each new docu- Clementi provides translation, editing, and agency was tasked with finding competent cessing or review.” ment as part of a larger whole. Your docu- document review for Lingua Legal. An Dutch-speaking reviewers,” she recalls. ments tell a story, and if you are willing to associate member of the American Bar “But in each case it filled out the team with Size matters listen, experienced linguists can help you Association, Lillian is also an active mem- amateur bilinguals recruited from social Once you know what you have, you can piece it together. ber of the American Translators networking sites and temp attorneys who develop a cost-effective strategy for Too few legal teams take advantage of Association (ATA) and has served as pres- had taken German in high school. Google review based on volume. “If I have 200 this added value. To tap into it, simply pro- ident for its Washington D.C. Chapter and Translate was their tool du jour." Solution: documents in a given language, I’ll likely vide translators and foreign-language is the coordinator of ATA's School if your linguists will come from a staffing have a linguist do a document-by-docu- reviewers with the background documents Outreach Program. Lillian is certified by or translation agency, ask for specifics on ment review,” says Jacoby. “If I have your attorneys and reviewers are using, the ATA for French to English. She also its recruiting standards and the credentials 5000, I’ll have the linguist work with and keep related English-language docu- holds a German to English translation cer- of the people who will handle your docu- review software and use his or her lan- ments with foreign material when sending tificate from New York University; an ments. guage and subject matter expertise to help it out for translation. If you are working M.A. in French from George Mason winnow the material. A competent review- with more than one linguist, make sure University; and a B.A. in French from Bang for the buck er can tell very quickly if something is that everyone on the team is sharing back- Loyola University. Quality translation does not come cheap, completely irrelevant or needs further ground and terminology. Stay focused on For more information on the use of this but you can save time and money by think- attention.” the big picture, and insist that your transla- article and for interview requests please ing through your needs. To draft a reason- tors do the same. contact me at the e-mail or number below. able budget, ask a few key questions up Scalpel or bludgeon? I look forward to hearing from you soon. front. How accurate do your translations need Strong relationships Does all of your foreign language mate- to be? Fast and relatively inexpensive, Strong relationships and institutional Laura Kelley The American Translators rial really need to be translated? A few computer translation is often useful for memory generally help a law firm serve its Association (720) 488-1116 laura@theso- hours of review time from the right trans- brute-force gisting and first-pass review, clients more effectively, and the same is lutionpr.com 27,000 Attorneys. 5 Publications. One Call!

REACH members of the bench and bar in SUFFOLK, NASSAU, QUEENS & KINGS COUNTIES through LEGAL MEDIA PUBLISHING’S ATTORNEY PUBLICATIONS 866-867-9121 THE QUEENS BAR BULLETIN – OCTOBER 2008 17

be considered. The lawyer may have ing the fees to be charged and particular- with the law and the practical problems Legal Fees: taken on an unpopular cause for no fee or ly, how much should be paid up front. faced by them in doing so, should be at a reduced fee. These factors and many Attorneys are acutely aware that they given more favorable consideration. Contractual more determine the reasonableness of a may seize the moment by capitalizing on fee and whether an attorney has earned the immediate troubles faced by a *Thomas F. Liotti is an attorney with it. When attorneys endeavor to be good prospective client such as the public offices in Garden City, New York. and Illusory citizens and engage in public service announcement of criminal charges being ______[1] Continued From Page 5 endeavors, they should not be penalized made or even a bad decision that is On August 13, 2009, the Pro Bono Publico Bar Association, Inc., a not-for-profit, New York corpo- This would then be given res judicata for doing so. viewed by some as a turning point in the ration was founded. Its purpose will be to provide effect, thereby reducing or eliminating a Whether a minimum fee has been case. The mental weakness of the client, free legal services to the poor; to document those substantial number of client suits against earned in the context of Cooperman may their desire to pay to make the problem services and provide low cost CLE to the lawyers their former lawyers because they do not also be measured by other factors such as go away, must be balanced against the who provide them. 1See Peter Eikenberry, More Examples of “How wish to pay them. whether the attorney has turned down priority of the ethical responsibility of To Be A Lawyer”, Federal Bar Council Quarterly, other cases to represent the client; the attorneys to not take advantage of the June, July, August, 2009 issue (Vol. XVI, No. 4) at 7. Minimum v. Non-Refundable Fees overhead and costs involved in opening client’s vulnerability. Nonetheless, the “Recently, I attended the memorial service for my In the New York Court of Appeals a file; interviews with the client and fam- attorney must be realistic about the cost 47 year old friend, Brooks Burdette, a litigation partner at Schulte Roth & Zabel. There I learned that case of Matter of Edward M. ily members and preliminary research; of representation, keeping in mind that Schulte lawyers had expended a total of over 8,200 Cooperman, 82 N.Y.2d 745 (1994), non- conferences among lawyers in the firm; merely adequate or nominal representa- hours in litigating as co-counsel to the Lawyers refundable fees were outlawed in New memos to the file and whether the client tion may not be enough to win. 9 The Committee for Civil Rights Under Law on behalf of York. Federal cases have been decided is high maintenance or litigious, expect- client wants to know what it will cost to Katrina victims. Wong v. ing multiple daily phone calls to be win or what it will cost to at least take “The victims were being evicted from temporary on similar grounds. See, housing in which they lived following the loss of Michael Kennedy, P.C., 853 F.Supp. 73 returned each day. Attorneys who take the best shot at it. The client has to their homes to the hurricane. The litigation was suc- (EDNY, 1994) and Gala Enterprises, on difficult cases and clients should financially survive during the pendency cessful in preventing tens of thousands of them from Inc. V. Hewlett Packard Co., 970 receive extra compensation for doing of the case. The mortgage must be paid being evicted. Recently, I also read a press item not- F.Supp. 212 (SDNY, 1997). While so. An attorney who takes on a case and food must be put on the table. ing that Schulte Roth & Zabel was among the top 10 firms in profitability, whether in N.Y. or the U.S., I Cooperman decided some issues, it left involving an abused spouse or a client Taking into account these and other fac- do not recall. many others in the dark. So, where an with a serious mental disorder should tors, attorneys may have to accept more “As a result of what I learned at the service for attorney has been paid a fee and done no receive some extra credit or compensa- or less in the way of minimum fees. Brooks, I called up Bill Zabel’s secretary. I asked to work, he or she must return the whole tion. Some of these factors were consid- These are additional and substantial cal- interview him on why a firm with such a track record of economic success was willing to make such a sig- fee or a substantial part of it. What is ered in Cooperman, and others were not. culated risks undertaken by the attorney. nificant commitment to litigation without any eco- unclear is an attorney’s entitlement to all For those lawyers with volume prac- Figured into the complex quadratic nomic reward for the firm. or a substantial portion of a minimum tices, low end fee or flat fee cases such equation of setting fees is the method of “As I sat in the firm’s reception area waiting for fee. A minimum fee is that which the as Vehicle and Traffic Law cases, mini- payment and what the attorney must do to Bill, I picked up the firm brochure, turned to the public service section and noted that the firm had attorney charges up front. It is the fee mum fee issues are less of a concern to guard against the receipt of monies illegal- expended over 15,000 hours towards not-for-pay which the attorney charges for undertak- them. On more sophisticated or compli- ly obtained or money laundering. CPLR legal commitments in 2008. ing the representation of a client in a par- cated cases the factors to determine in 8301-8303-a. Naturally, the receipt of ill- “Projects included a class action suit to achieve ticular case. weighing whether an attorney has earned gotten gains may result in forfeiture of adequate legal representation for indigent litigants in A question posed immediately after the fee simply by taking it are more com- fees paid or even prosecution of the attor- New York State and representation of individual immigrants in asylum cases. Cooperman to a former Grievance plex. For example, in Cooperman, the ney on a great variety of charges. CPLR “I calculated that at an estimated blended hourly Committee counsel illustrates the point. lawyer had done little or no work for the §1311 and 28 U.S.C. §2461. rate of at least $300, Schulte expended over $4.5 mil- Question: “If a well known, experi- $15,000 flat fees he received. The for- All of this and more leads to effective lion in legal time for non-billable public service proj- enced lawyer has a minimum retainer of mer clients claimed that they had a assistance of counsel issues, possible ects in the last calendar year.” 3 See Thomas F. Liotti, The Art of Avoiding $100,000.00 and after making a single change of heart shortly after retaining violations of the Sixth Amendment and Criminal Prosecutions, The Attorney of Nassau phone call, gets the charges dismissed, him and wanted their money back so that legal malpractice concerns. In setting County, August, 1994 at 6, 8 and 15. Also published has he earned his fee and may he keep they could retain other counsel. But the legal fees, attorneys must also insure in the New York State Bar Journal, February, 1995 at it?” what if the former client has ample that there is enough money for expert 49. Also, January 25, 2001, New York State Bar Association, Criminal Justice Section, Annual Answer: “I would say yes, that he has money to retain other counsel or has a fees, investigators and the presentation Meeting CLE, Avoiding Prosecution And Disposing earned it.” history of jumping from lawyer to of demonstrative evidence. Of Criminal Cases Without Trial. Co-panelists were Now that, of course, is one lawyer’s lawyer? A permutation of this problem occurs Herald Price Fahringer, Esq., Howard Stave, Esq., opinion, but clearly there are lawyers The point here is that lawyers who when an attorney is asked to represent a Robert G. Morvillo, Esq., and Hon. William L. take on cases for a minimum fee should foreign client. If the client has been Murphy. with knowledge, experience and contacts 4 See Thomas F. Liotti, and Drummond Smith, who can achieve results that others cannot be penalized for doing so. But for labeled a fugitive, a terrorist or a so- Appellate Review and the Preservation of Error, not. Some clients are aware of that. the fees paid, they would not undertake called “Drug King Pin” prior to being Nassau Lawyer, January, 2007 at 9 & 27. They may be willing to pay for it. Why these cases. While minimum fees may retained, attorneys are presently obliged 5 See Thomas F. Liotti and Peter B. Skelos, should they not be allowed to do so? be objected to by non-practicing attor- to first check to see if the client’s name Precision Is The Key To Criminal [Law] Retainers, The Nassau Lawyer, November, 1987 at 1 and 12. The answer is that they can, but there are neys such as the academics involved in is listed on the federal registry. 6 See Philips v. Philips (Nassau County Supreme some ungrateful clients out there and the Cooperman case, the reality is that Attorneys are then obligated to secure a Court, Justice R. Bruce Cozzens). New York Law once a lawyer has worked his magic, lawyers will not be involved in certain special license from the Department of Journal, Sept. 1, 1998 at 1 and 25. In a pending mat- they want their money back. This can be cases in the absence of a minimum fee. the Treasury prior to their representa- rimonial action, plaintiff's outgoing attorney sought a charging lien for his services rendered. At the time of the source of fee disputes and ethical A lawyer who takes on a big case for a tion. They must receive approval for signing a retainer, plaintiff was in prison. His broth- concerns. substantial flat fee may not even keep monies paid; deposit the monies into a er, who had power of attorney, signed a retainer The Court of Appeals has given us track of his hours so how can any court special account and provide an account- agreement and a statement of client's rights and some insight as to when a fee is earned, determine that the fee is not earned? At ing of all monies expended. Naturally, responsibilities. Attorney argued that this sufficiently 7 complied with 22 NYCRR §1400.2. The court held but not enough. When an attorney some point courts become involved in the regulations while posing some legiti- that, absent strict compliance, the lien must be charges a minimum fee he or she may reading tea leaves in determining mate national security concerns, also denied. It said the attorney had the additional duty to have done so because of the risks whether a minimum fee or any other has pose First Amendment privacy issues; personally provide a copy of the statement to the involved. There may be a concern by the been earned. If the lawyers and judges Sixth Amendment, effective assistance prospective client before a retainer was signed. See attorney that the action is frivolous; that have little or no practical experience in of counsel and freedom of contract also, A. Anthony Miller, Failure To File Retainer 10 Fatal to Fee Claim, The Attorney of Nassau County, sanctions may be imposed; that the these types of cases, then their determi- issues. September, 1998 at 5. lawyer might be sued by adversaries or nations as to what is earned or what may 7 See Non-refundable Fee Ban Seen As Unclear, his own client and there may even be the be excessive are speculative at best. Conclusion Yet Alarming, BNA Criminal Practice Manual, April threat of physical danger. 8 The legal profession is sometimes con- These are a few of the dilemmas not 13, 1994 at 173 & 176. 8 See Thomas F. Liotti, Judge Mojo: The True In addition to these risk factors which sumer oriented to a fault. Like no other addressed in Cooperman or its progeny Story of One Attorney’s Fight against Judicial are difficult to quantify and should be profession or business, we police our- which are faced by attorneys in setting Terrorism published through iUniverse. The book given a multiplier effect, there are other selves often ignoring the freedom to con- fees, especially up front and minimum may be ordered through www.iuniverse.com and factors that are also inchoate. These tract as provided for in our Constitutions; fees. The cognition of attorneys on these www.bn.com for $25.95 U.S. The book has been described by Ronald Kuby, Esq., media talk show amorphous factors may include the diffi- the plain language of retainers and caveat points, their researching of the law to host, commentator and renowned civil rights attorney culty of the case; the number of lawyers emptor. In penalizing ourselves we have insure compliance with ethical stan- as “a fascinating and frightening book that chronicles previously involved in the case who gone to extremes without a full under- dards, may prevent some of the disas- the brave struggle of a prominent civil rights attorney asked to be relieved; and the number standing of the business decisions trous consequences that can occur when to fight back against a terrorist in black robes. Judge involved and when a fee is earned. these issues are not foreseen by counsel. Mojo provides a terrifying look at what happens who turned the case down. The fact that when the Judge is angry, armed and psychotic. A an attorney has undertaken a case under Clearly though, courts and grievance must-read for every law student and every student of such circumstances, perhaps partially on Other Risks Encountered By committees must come to understand the law.” a contingency, because he or she Attorneys In Setting And Accepting that many of these issues have not been 9 See Jenkins v. Coombe, 821 F. 2d 158 (1987) believes that litigants should have access Fees fully explained or contemplated by and Lopez v. Scully, 58 F.3d 38 (2d Cir.1995). 10 Thomas F. Liotti and Drummond C. Smith, to the courts, “a day in court” so to An attorney entering a complex case them. Until they are, then the good faith Representing A Foreign Client? Better Check The speak, is a public service which should faces many other problems in determin- of attorneys in attempting to comply SDN List First, Nassau Lawyer, July/August, 2009 at 18 and 19. 18 THE QUEENS BAR BULLETIN – NOVEMBER 2009

and concerning the juror’s use of news dant prior to the rendition of a verdict; or 26 Id. reports. There is a sub-rule concerning That new evidence has been discovered since the An Analysis of the trial which could not have been produced by the 27 61 NY2d 1008, 475 NYS2d 371 (1984) juror note-taking, and there is a general defendant at the trial event with due diligence on his rule concerning where jurors show overt part and which is of such character as to create a 28 See also on this, People v. Brown, Id.; People Motion to Set prejudice or bias. Finally, there is a rule probability that had such evidence been received at v. Browne, 307 AD2d 645, 763 NYS2d 695 (3rd concerning separation of the jury as the the trial the verdict would have been more favorable Dept. 2003); People v. Paccione, 295 AD2d 450, 743 ground for the granting of this Motion. to the defendant. NYS2d 561 (2nd Dept. 2002); 23 Jones Street Aside the Verdict: Associates v. Beretta, 280 AD2d 372, 722 NYS2d It is hoped that this article will provide 2 st 197 AD2d 476, 602 NYS2d 847 (1 Dept. 1993) 229 (1st Dept. 2001); People v. Anderson, 249 AD2d some sort of guide to the practitioner nd 3 nd 405, 671 NYS2d 149 (2 Dept. 1998); People v. Subsection 21 through this detailed and somewhat com- 104 AD2d 947, 480 NYS2d 565 (2 Dept. Carthrens, 171 AD2d 387, 577 NYS2d 249 (1st Dept. 1984) Continued From Page 13______plex field of improper juror conduct under 1991); People v. Thomas, 170 AD2d 549, 566 Subsection Rule (2) of Sec. 330.30 of the NYS2d 323 (2nd Dept. 1991); People v. Scales, 121 knowledge as to the cause is not a ground 4 See also on this People v. Maragh, 94 NY2d 569, nd Criminal Procedure Law. AD2d 578, 503 NYS2d 629 (2 Dept. 1986). for this Motion. There is a rule that 708 NYS2d 44 (2000) and People v. Phillips, 87 Misc.2d 613, 384 NYS2d 906 (1975) 29 improper communication with the jury can Id. * Andrew J. Schatkin practices law in be a ground for the granting of this 5 Jericho, New York and is the author of Id. 30 120 Misc.2d 1087, 467 NYS2d 110 (S. Ct. NY Motion. There is a sub-rule concerning over 150 law journal articles and has con- 6 nd Co. 1983) discussions or conversations among jurors 304 AD2d 841, 759 NYS2d 136 (2 Dept. tributed to five books. He is listed in concerning the case. There are rules con- 2003) 31 See also on this, People v. Hartung, 17 How. Who’s Who in America. cerning written communication by or with 7 Prac. 85, 4 Parker Cr.R. 256, 8 Abb. Prac. 132 See also on this rule, People v. Brown, 48 (1859); U.S. v. Tin Yat Chin, 275 F. Supp.2d 382 jurors, and when a juror examines exhibits. NYS2d 388, 423 NYS2d 461 (1979); People v. (2003); People v. Santi, Id.; People v. Kelly, 11 ENDNOTES Johnson, 110 NY 134, 17 NE 684 (1888); People v. st There is varying law concerning juror’s rd AD3d 133, 781 NYS2d 75 (1 Dept. 2004); People Leonard, 252 AD2d 740, 677 NYS2d 639 (3 Dept. v. Robinson, 1 AD3d 985, 768 NYS2d 50 (4th Dept. experimentation, as well as law concern- 1 The case law cited in this article has its source in 1998); People v. Stanley, 212 AD2d 983, 624 NYS2d 2003); People v. Corines, 308 AD2d 457, 764 ing of improper juror conduct in the course the annotations of McKinney’s Consolidated Laws, th 313 (4 Dept. 1995); People v. Edgerton, 115 AD2d NYS2d 117 (2nd Dept. 2003); People v. Camacho, Sec. 330.30, Volume 11A, West Publishing th of Voir Dire. In general, there is a rule that 257, 495 NYS2d 858 (4 Dept. 1985); People v. 293 AD2d 876, 742 NYS2d 402 (3rd Dept. 2002); Company. a juror’s acquaintance with the defendant Rodriguez, 183 Misc. 2d 867, 705 NYS2d 485 (S. Ct. People Cepeda, 251 AD2d 343, 674 NYS2d 68 (2nd is not a basis for granting this Motion, and, Kings Co. 1999); People v. Phillips, Id.; People v. Dept. 1998); People v. Marquez, 188 AD2d 619, 591 Catalanotte, 67 Misc.2d 351, 324 NYS2d 106 (S. Ct. NYs2d 501 (2nd Dept. 1992); People v. Hooker, 118 as well, there is a rule that a jury verdict 1 At any time after rendition of a verdict of guilty, Kings Co. 1971); People v. Kraus, 147 Misc. 906, Misc.2d 760, 462 NYS2d 123 (S. Ct. Kings Co. cannot be impeached by probes into the and before sentence, the court may, upon motion of 265 NYS 294 (Ct. of Gen. Sess. NY Co. 1933); 1983). jury’s deliberative process. There are the defendant, set aside or modify the verdict or any People v. Smith, 187 NYS 836 (S. Ct. Chenango Co. part thereof upon the following grounds: rules concerning the juror’s use of extrane- 1921). 32 See on this People v. Thomas, 184 AD2d 1069, Any ground appearing in the record which, if ous information such as can constitute 584 NYS2d 706 (4th Dept. 1992). raised upon an appeal from a prospective judgment of 8 People v. Mack, 35 AD 114, 54 NYS 698 (3rd improper conduct, and a rule where a juror conviction, would require a reversal or modification Dept. 1898) 33 5 Misc. 3d 501, 785 NYS2d 286 (Criminal Co. of the judgment as a matter of law by an appellate does independent research. There is a case NY Co. 2004) law concerning the use of alcohol and court. 9 See on this People v. Foster, 100 AD2d 200, 473 That during the trial there occurred, out of the nd NYS2d 978 (2 Dept. 1984); People v. Morrisey, 1 34 115 AD2d 257, 495 NYS2d 858 (4th Dept. drugs by jurors, and a rule about jurors presence of the court, improper conduct by a juror, or Sheld. 295 (1872) 1985) reporting defendant’s bad conduct or prior improper conduct by another person in relation to a conviction to other jurors. There are sub- juror, which may have affected a substantial right of 10 91 NY2d 838, 666 NYS2d 1020 (1997) 35 138 Misc. 344, 246 NYS 706 (Ct. of Gen. Sess. the defendant and which was not known to the defen- rules concerning juror access to law books NY Co. 1930) 11 282 AD2d 688, 725 NYS2d 655 (2nd Dept. 2001) 36 See also on this, People v. Gardella, 55 AD2d 607, 389 NYS2d 118 (2nd Dept. 1976) 12 On this see also, People v. Simms, 176 AD2d nd 833, 575 NYS2d 159 (2 Dept. 1991); People v. 37 164 NY 459, 58 NE 668 (1900) Catalanotte, Id.; People v. Smith, Id. advertise 38 13 People v. Gardella, 55 AD2d 607, 389 NYS2d 303 NY 382 (1952) 118 (2nd Dept. 1976); People v. Draper, 28 Hun 1 14 nd (1882); People v. Gaffney, 1 Sheld. 304, 14 Abb. 8 AD3d 503, 778 NYS2d 517 (2 Dept. 2004) Prac. NS 36 (1872) 15 See also on this, People v. Leonard, Id.; People 39 st to 27000 rd 187 AD2d 365, 590 NYS2d 191 (1 Dept. v. Barrett, 231 AD2d 806, 647 NYS2d 311 (3 Dept. 1992) 1996); People v. Hill, 225 AD2d 902, 639 NYS2d 857 (3rd Dept. 1996); People v. Moon, 219 AD2d 40 st th 112 AD2d 841, 493 NYS2d 130 (1 Dept. 817, 631 NYS2d 958 (4 Dept. 1995); People v. 1985) Marrero, 83 AD2d 565, 441 NYS2d 12 (2nd Dept. lawyers 1981); People v. Catalonotte, Id. 41 People v. Testa, 61 NY2d 1008, 475 NYS2d 371, 463 NE2d 1223 (1984); People v. Lafferty, 177 16 See People v. Kelly, 94 NY 526 (1884); People th st AD2d 1043, 578 NYS2d 56 (4 Dept. 1991); People v. Rivera, 262 AD2d 235, 694 NYS2d 13 (1 Dept. v. Costello, 104 AD2d 947, 480 NYS2d 565 (2nd 1999); and People v. Phillips, Id. Dept. 1984); People v. Lubin, 190 AD 339, 179 NYS 691 (1st Dept. 1920); People v. Whitmore, 45 17 See People v. Gallagher, 11 NYAnn.Cas. 348, th MIsc.2d 506, 257 NYS2d 787 (S. Ct. Kings Co. 75 AD 39 (4 Dept. 1902) and Wilson v. People, 4 1965) in Queens, Kings, Parker Cr.R. 619 (1859) 42 18 120 Misc.2d 1087, 467 NYS2d 110 (S. Ct. NY 3 NY3d 234, 785 NYS2d 405 (2004) Co. 1983) 19 st 11 AD3d 133, 781 NYS2d 75 (1 Dept. 2004) 43 125 AD2d 711, 510 NYS2d 196 (2nd Dept. 1986) New York, Nassau 20 See also on this People v. Brown, 48 NY2d 388, 423 NYS2d 461 (1979); People v. Pino, 264 44 rd st 214 AD2d 898, 625 NYS2d 719 (3 Dept. AD2d 571, 695 NYS2d 548 (1 Dept. 1999); People 1995) v. Horney, 112 AD2d 841, 493 NYS2d 130 (1st Dept. 1985). 45 262 NY 256 (1933) & Suffolk Counties 21 100 NY2d 30, 760 NYS2d 74 (2003) 46 st 5 AD3d 115, 772 NYS2d 333 (1 Dept. 2004) 22 th 222 AD2d 1096, 635 NYS2d 849 (4 Dept. 47 See also on this People v. Thompson, 198 NY 1995) 396, 91 NE 838 (1910); People v. Browne, Id.; 23 People v. Rivera, 304 AD2d 841, 759 NYS2d 136 See also People v. West, 4 AD3d 791, 772 (2nd Dept. 2003); People v. Adams, 278 AD2d 920, NYS2d 166 (4th Dept. 2004); People v. th rd 719 NYS2d 428 (4 Dept. 2000); People v. Demetsenare, 243 AD2d 777, 663 NYS2d 299 (3 Gonzales, 228 AD2d 722, 643 NYS2d 707 (3rd Dept. Dept. 1997); People v. Morales, 121 AD2d 240, 503 st 1996); People v. Rukaj, 123 AD2d 277, 506 NYS2d NYS2d 374 (1 Dept. 1986); People v. White, 22 677 (1st Dept. 1986); People v. Stewart, 96 AD2d AD2d 830, 253 NYS2d 583 (3rd Dept. 1964); People rd th 622, 464 NYS 2d 885 (3 Dept. 1983); People v. v. Rosenthal, 264 AD 822, 35 NYS2d 215 (4 Dept. Rodriguez, 183 Misc. 2d 867, 705 NYS2d 485 (S. Ct. 1942); People v. Rosen, 251 AD 584, 297 NYS 877 rd NY Co. 1999); People v. Smith, 175 Misc.2d 692, (3 Dept. 1937); People v. Rodriguez, Supra.; 670 NYS2d 310 (S. Ct. Queens Co. 1998); People v. People v. Childs, 56 Misc.2d 581, 289 NYS2d 922 Whitmore, Id. (Co. Ct. Seneca Co. 1968) 48 24 nd See on this People v. Dunbar Contracting Co., 191 AD2d 715, 595 NYS2d 518 (2 Dept. 215 NY 416, 109 NE 554 (1915); People v. Hoch, 1993) 150 NY 291, 44 NE 976 (1896); Stephens v. People, 19 NYS 549 (1859); People v. Buchanan, 25 NYS 25 See also on this, People v. Sharpe, 295 AD2d 866-867-9121 th 481 (1893); People v. Douglass, 4 Cow. 26, 15 957, 744 NYS2d 606 (4 Dept. 2002); People v. rd Am.Dec. 332 (1825); People v. Schad, 58 Hun 571, Gonzales, 228 AD2d 722, 643 NYS2d 707 (3 Dept. 35 NYSt. Rep. 148 (1891); People v. Menken, 36 1996); People v. Mack, Id. Hun 90 (1885) THE QUEENS BAR BULLETIN – NOVEMBER 2009 19

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At the time, guage and culture capabilities in a lan- {631}421-4488 EX 119 johnelawlor.com [email protected] it took approximately two years to obtain guage critical to DoD an employment-based immigrant visa. • Applicants must demonstrate a language Today, the dearth of employment-based proficiency immigrant visas today is far more pro- • Applicants must meet all existing enlist- PLACE YOUR LEGAL CLASSIFIEDS nounced. Highly-skilled and educated for- ment eligibility criteria eign nationals from around the world, • Applicants must enlist for at least 4 years Whether you need to fill a position/space, especially from India and China, must wait of active duty at least four and perhaps six or even ten (Services may add additional require- years to complete the processing of their ments) offer your services or just "green card" application. As with H-1B visas, visa backlogs of five and more years -MORE LANGUAGES get your name out there. to accord the world's most valued and needed workers the right to live perma- • Albanian We can help, call 866-867-9121 nently in the United States makes no sense • Amharic and adversely impacts the country's econ- • Arabic omy, as well as countless foreign nationals • Azerbaijani and their employers. • Bengali worked closely with the U.S. Citizenship valid. If the new application is filed with On the family immigration side, waits in • Burmese and Immigration Services (USCIS) to 30 days or less remaining on the old travel some categories are now ten to fifteen • Cambodian-Khmer streamline citizenship processing for serv- document, NSC will not issue a RFE years. For some people, ameliorating long • Chinese ice members. Since Sept. 11, 2001, nearly requesting a copy of the previously issued visa waits only will be accomplished by • Czech 43,000 members of the Armed Forces travel document. Applications filed more winning the annual green card lottery. • Hausa have attained their citizenship while serv- than 30 days before the expiration of the Solution: • Hindi ing this nation. travel document will be issued a RFE ask- Increase employment-based visa alloca- • Hungarian ing for the VALID travel document before tion from 140,000 per year to 290,000 to • Igbo AILA Encouraged by Positive White the new travel document is issued. NSC better reflect the needs of U.S. employers; • Indonesian House Meeting on Immigration Reform has expressed that practitioners submitting treat spouses and children of lawful per- • Korean the new I-131 up to 60 days ahead of the manent residents as immediate relatives - • Kurdish Washington, DC – At a meeting today expiration of the old travel document since they are for all other purposes (tax, • Lao hosted by DHS Secretary Janet would also allow time for receipting of the health insurance, etc.) - and not subject to • Malay Napolitano, and attended by some 130 application and issuance of the ASC the annual numerical limitations. • Malayalam immigrant advocates, business and labor appointment before adjudications. Thanks to Immigrants List for allow- • Moro leaders, and law enforcement representa- Example: An applicant wants to travel ing us to reprint this material. • Nepalese tives, President Barack Obama confirmed overseas. The applicant would submit the • Persian [Dari & Farsi] his commitment to fair and reasonable I-131 application, however, there are still Military Accessions Vital To National • Polish immigration reform. The America 30 days left on the still valid travel docu- Interest (MAVNI) • Punjabi Immigration Lawyers Association (AILA) ment that was issued approximately two • Pushtu (aka Pashto) applauds this positive message and looks years ago (reentry permit). The applicant RECRUITMENT PILOT • Russian forward to the President’s and the would not need to submit the travel docu- The Secretary of Defense authorized the • Sindhi Secretary’s leadership on this issue in the ment with the new application. This military services to recruit certain legal • Sinhalese days ahead. would allow the applicant to travel on the aliens whose skills are considered to be • Somali “I was pleased to hear of the Secretary’s old document while the new application is vital to the national interest. Those holding • Swahili intention to step up her leadership on being processed. If the applicant has more critical skills – physicians, nurses, and cer- • Tamil immigration reform,” said Crystal than 30 days left on their old reentry per- tain experts in language with associated • Turkish Williams, AILA’s Acting Co-Executive mit the applicant could still file an applica- cultural backgrounds – would be eligible. • Turkmen Director, who participated in the meeting tion, however, before NSC could adjudi- To determine its value in enhancing mili- • Urdu on behalf of AILA. “There cannot be cate the application the officer would need tary readiness, the limited pilot program • Yoruba effective enforcement of immigration laws to do a “Request for Evidence” letter and will recruit up to 1,000 people, and will until those laws are reformed to realistical- ask for the still valid document (this would continue for a period of up to 12 months. BACKGROUND ly address the needs of families, workers, not be done for anything less than 30 Non-citizens have served in the military and American business, and to promote days). ELIGIBILITY since the Revolutionary War. The Lodge our long-cherished values of fairness and 1. The applicant must be in one of the fol- Act of 1950 permitted non-citizen Eastern due process.” I received only one year validity on the lowing categories at time of enlistment Europeans to enlist between 1950 and The time is now to, once and for all, fix reentry permit; shouldn’t it be two a. asylee, refugee, Temporary Protected 1959. Additionally, the United States offi- our broken immigration system. The years? Status (TPS), or cially began recruiting Filipino nationals Administration’s commitment to this chal- 8 CFR 223.1(2) “Extended Absences” b. nonimmigrant categories E, F, H, I, J, K, into the Navy in the late 1940s, when it lenge is very much welcomed. states that a reentry permit issued to a per- L, M, O, P, Q, R, S, T, TC, TD, TN, U, signed the Military Bases Agreement of son who, since become a legal permanent or V 1947 allowing U.S. military bases in the Tips for I-131 Reentry Permits and resident, or during the last 5 years, 2. The applicant must have been in valid Philippines. In total, over 35,000 Filipinos Refugee Travel Documents whichever is less, has been outside the status in one of those categories for at enlisted in the Navy through the program U.S. for more than 4 years in the aggregate least two years immediately prior to the between 1952 and 1991. How far ahead should I file an I-131 for will be limited to one year validity. There enlistment date, but it does not have to Today, about 29,000 non-citizens serve a second or subsequent reentry permit are exceptions where a two-year validity be the same category as the one held on in uniform, and about 8,000 legal perma- or refugee travel document? can be issued, and those are separately list- the date of enlistment; and nent resident aliens (green card holders) 8 CFR Part 223.2 states that an applica- ed out in the regulations. On page 2 under 3. An applicant who may be eligible on the enlist each year. Law ensures that the sac- tion for a reentry permit or refugee travel Part 5 of the I-131 application, it states, basis of a nonimmigrant category at rifice of non-citizens during a time of document shall be denied if the previously “Since becoming a permanent resident of time of enlistment (see 1b above) must national need is met with an opportunity issued travel document is still valid (unless the United States (or during the past five not have had any single absence from for early citizenship, to recognize their evidence is provided that it was lost), how- years, whichever is less) how much total the United States of more than 90 days contribution and sacrifice. In fact, today's ever, the NSC has informed AILA that it time have you spent outside the United during the two year period immediately service members are eligible for expedited allows the filing of a new reentry permit or States?” If the applicant marked/checked, preceding the date of enlistment. citizenship under a July 2002 Executive refugee travel document even while the “more than four years,” then he or she will Order and the military services have previously issued travel document is still only be given one year. 20 THE QUEENS BAR BULLETIN – NOVEMBER 2009 Picture yourself in front of 27,000 New York lawyers.

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