THE JOURNAL OF THE NASSAU COUNTY BAR ASSOCIATION November 2020 www.nassaubar.org Vol. 70, No. 3

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2020-21 NCBA COMMITTEE LIST Page 18 NCBA COMMITTEE MEETING CALENDAR Page 20 Open Doors to SAVE THE DATE New Business with NCBA Virtual Holiday Celebration NCBA Member THURSDAY, DECEMBER 3, 2020 6:00 PM via Zoom Exclusive Programs See pg. 6 WHAT’S INSIDE Criminal Law New Repeal of Old Law Provides Insight Into Law Enforcement Disciplinary Records pg. 3 Growing your firm’s business and reach has the application, copy of current profession- at what was considered to be community never been easier with the help of the Nassau al insurance coverage, and check or credit service rates. Although the panels’ original Recent New York State County Bar Association’s Lawyer Referral card information must be mailed to: Nassau focus were labor and employment disputes, Chokehold Law: Meaningful Service and Arbitration and Mediation pan- County Bar Association, Lawyer Referral over the years, the panels expanded to include Reform or Cruel Hoax? pg. 5 els. Members can receive new potential client Information Service, 15th and West Streets, arbitrators and mediators trained and experi- referrals and join panels which handle cases Mineola, NY 11501. enced in a wide variety of practice areas. Cannabis and COVID-19: at the most efficient rates—benefits exclu- "The Lawyer Referral Service has been a Requirements to join the NCBA panels as A Hazy 2020 Vision pg. 6 sively offered to active NCBA Members only. great resource for my practice for many years. a mediator or arbitrator are quite stringent, I have received a consistent flow of business and the majority of panel members sit on Acknowledging the Realities Lawyer Referral Service (LRS) opportunities. It's an opportunity for me to a wide variety of other private and court- of Transgender People in the “I have been a member of Lawyer referral gain a new client. People appreciate the fact based panels. In addition to a minimum Criminal-Legal System pg. 7 for 25 years. In that time, I have received a that I take the time to try and help them. It's training requirement of 40 hours of Part number of lucrative clients. The return on a chance for me to get my name out there and 146-compliant training for mediators, with Autistic Victims and Defendants investment has been fantastic,” said NCBA expand my network." said NCBA Member similar training requirements for arbitra- Need More Robust Protections President-Elect Gregory S. Lisi. George Merritts. tors, applicants must demonstrate relevant Under the Law pg. 8 Each year, the Nassau County Bar Additional information and can be found at experience, must be in practice at least Association (NCBA) receives an influx of calls www.nassaubar.org under the “Join the Lawyer ten years, and must be NCBA Members in Use of Acquitted Conduct in from members of the community regarding Referral Service Information Panel” tab. good standing. Applicants who meet those Sentencing: Is the Tide Turning? pg. 9 personal legal matters. Callers who are look- requirements are then screened by NCBA ing for an experienced and knowledgeable Alternative Dispute Resolution (ADR) Judiciary Committee, which reviews and U.S. Department of Education attorney to work with them on a legal issue Are you looking for expeditious, timesav- must approve all applicants before they may Issues New Rules Protecting Due are forwarded to the Lawyer Referral Service ing, and cost-effective solutions to resolve serve on a panel. Process Rights in Student (LRS) Program by an NCBA staff member. disputes that might otherwise be litigated in On account of the commitment of the NCBA to its members, as well as the courts Disciplinary Hearings pg. 12 These new potential clients are then intro- court? Lower cost mediation and arbitration duced to members of the LRS Panel, com- through the NCBA is available to the public and the community, the fee charged for either Virtual Testimony in prised of active NCBA Member attorneys and all legal professionals who are looking for mediation or arbitration is just $300 an hour, with a flat administrative fee of only $500 Criminal Trials pg. 13 looking to cultivate business opportunities. reasonable fees that are less expensive than “Being affiliated with the NCBA Lawyer other alternative dispute resolution providers. for each case. In the time of both presump- The Lawyer as Comic Book Referral Service has provided an additional Mediators and arbitrators are highly skilled tive ADR, coupled with a pandemic which Crime Fighter pg. 14 means of meeting prospective clients. The attorneys who have been admitted to the has limited access to the courthouse, the firm likely also experiences enhanced repu- New York Bar for a minimum of 10 years as NCBA Arbitration and Mediation Panels tational status from its long affiliation with, well as screened and approved by the NCBA offers attorneys an exceptional tool to assist and referrals by, an institution as widely Judiciary Committee. their clients resolve their disputes and move respected as NCBA,” said NCBA Member The the NCBA Mediation and Arbitration forward with their lives and their businesses. OF NOTE Matthew S. Seidner. Panels have a long-standing history at Domus. Special thanks to Marilyn Genoa and Jess Membership on the LRS panel is open as Understanding that alternative dispute resolu- Bunshaft for their contribution to the ADR NCBA Member Benefit - I.D. Card Photo an exclusive benefit to active NCBA Members. tion, or as our Members like to call it, “appro- section of this article. Marilyn Genoa and To join the panel, Members are asked to priate dispute resolution,” affords clients a Jess Bunshaft are Co-Chairs of the Nassau Obtain your photo for Secure Pass Court County Bar Association’s ADR Committee, fill out the application form located on our more economical alternative to resolve their overseeing the Bar Association’s arbitration ID cards at NCBA Tech Center website at www.nassaubar.org. The applica- disputes, a roster of arbitrators and mediators and mediation panels as well as serving on Only For New Applicants tion form allows the applicant to choose the was established in the 1980s. The initial goal the mediation panels themselves. They’re panels he/she wishes to be on. Once signed, was to provide a roster of top-quality neutrals also independent mediators and arbitrators. Cost $10

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LAP VIRTUAL WELLNESS SERIES CO-SPONSORED BY NYSBA LAWYER ASSISTANCE PROGRAM

Thursday, November 5, 2020 l Healthy Body, Healthy Mind 12:30 PM Presented by Chiropractor and Personal Trainer, Dr. Benjamin Carlow. Dr. Carlow will discuss how healthy living and eating increases well-being.

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To register for the virtual LAP Wellness Series, contact Beth Eckhardt at [email protected] or call (516) 294-6022. Support LAP! Visit www.nassaubar.org/lawyer-assistance-program-3/ today to make a $25 suggested donation. Nassau Lawyer November 2020 3 Criminal Law New Repeal of Old Law Provides Insight Into Law Enforcement Disciplinary Records

This past June saw an important piece class of law enforce- Opinion, COOG pro- Andrea DiGregorio and Tammy J. Smiley of legislation concerning the public’s right ment and other public vided examples of both work in the Appeals Bureau of the of access to law enforcement disciplinary officers. what may constitute an Nassau County District Attorney’s Office. records pass through the State Legislature In a report issued unwarranted invasion of Andrea serves as Senior Appellate Counsel with what might be considered uncustom- in 2014, New York’s personal privacy, if dis- and is the Office’s FOIL Appeals Officer. ary record speed for New York’s legislative Committee on Open closed.9 The Committee Tammy serves as Chief of the Appeals bodies. The Senate introduced and filed bill Government (“COOG”) on Open Government Bureau and is the Office’s FOIL Records number S8496 on June 6, it passed both set forth that the § 50-a explained that a record Access Officer. houses on June 9 and was delivered to the exemption—which was of an “unsubstantiat- Governor on June 11, and on June 12 it was created in 1976 for the ed or unfounded com- 1. Although § 50-a was generally thought of as being signed into law as Chapter 96 of the laws “narrow” purpose of plaint” (even in redacted applicable to police officers, it also applied to those under of 2020. This legislation had two important “preventing criminal Andrea Tammy J. DiGregorio Smiley form) may be withheld the control of a sheriff’s department, the department of components: (1) it repealed section 50-a of defense lawyers from under FOIL where an correction, paid firefighters or paramedics, and peace New York’s Civil Rights Law that shielded rifling through police agency determines that such a complaint would officers. CRL § 50-a(1). police officer records from wholesale disclo- personnel folders in search of undocument- constitute an unwarranted invasion of personal 2. Annual Report To The Governor And State Legislature, sure, and (2) it made access to these records ed information to use in cross examination privacy. The committee also noted that records State Of New York, Committee On Open Government at available to ordinary members of the public of police witnesses during criminal prosecu- 3 (December 2014). through a simple request pursuant to New tions”—had been expanded by courts to allow pertaining to charges that were dismissed or found to be without merit could also be with- 3. Id. York’s Freedom of Information Laws. In less police departments to withhold from the public 4. Pub. Off. L. §§ 86(6)-9; 87(4-a), (4-b); 89(2-b), (2-c). than a week, decades-old principles of priva- “virtually any record that contains any informa- held if an agency determines that disclosure of such records would result in an unwarrant- 5. Pub. Off. L. §§ 87(4-a); 89(2-b). cy shielding the personnel and disciplinary tion that could conceivably be used to evaluate 6. Pub. Off. L. §§ 87(4-b); 89(2-c). records of law enforcement officers was abol- the performance of a police officer.”2 In other ed invasion of personal privacy. But, COOG remarked, withholding such information was 7. Pub. Off. L. § 86(9). ished to further the goals of regaining the words, COOG explained, § 50-a “creates a legal 8. State of New York, Committee on Open Government, shield that prohibits disclosure, even when it discretionary, and, as a general matter, FOIL public’s trust in law enforcement and to help FOIL Advisory Opinion 19775 at 2 (July 27, 2020). is known that misconduct has occurred,” and is based upon a presumption of public access. make police officers more accountable for 9. Id. urged that the Legislature and Governor make In reaching its July determination, COOG their misconduct. 10. Id.; see generally Uniformed Fire Officers Ass’n v. it a “top priority” to remove secrecy that “sur- noted that—at that time—no court had DeBlasio, No. 154982/2020, 2020 WL 4003596, at *2 (Sup. Repeal of Civil Rights Law § 50-a rounds some activities of police departments issued an opinion that formally answered Ct. N.Y. Co. July 15, 2020). across this State.”3 the question whether unsubstantiated com- Civil Rights Law Section 50-a was one 11. Uniformed Fire Officers Ass’n v. DeBlasio, 20 Civ. This year, the Governor and Legislature plaints against law enforcement personnel piece of legislation well-known to all police 5441 (KPF) (SDNY July 29, 2020) (order modifying acted in accordance with COOG’s urging, and and other law enforcement and public offi- must be disclosed pursuant to FOIL, and at TRO such that it does not apply to NYCLU). See gen- 1 have generally made available, pursuant to cers in New York. This law prevented mem- least two courts had temporarily enjoined the erally Uniformed Fire Officers Ass’n v. DeBlasio, No. a FOIL request, the “law enforcement disci- 10 bers of the public, including defense attor- disclosure of such complaints. However, 154982/2020, 2020 WL 4003596, at *2 (N.Y. Sup. Ct. July plinary records” of New York police officers, neys and those who may have felt victimized that backdrop has changed. In Uniformed 15, 2020). by police officer misconduct, from learning fire fighters, corrections officers, and other Fire Officers Association v. DeBlasio, a federal about the results of complaints filed against law enforcement personnel, as discussed in court permitted release of records that con- the officers, and other disciplinary actions Public Officers Law § 86(8). However, not all tained unsubstantiated or non-final allega- taken against them or refused to be taken the information contained within such disci- 11 4 tions concerning conduct of the plaintiffs. against them by their departments. Anything plinary records is subject to disclosure. Some As of the writing of this article, the decision less than criminal charges was generally information is mandated to be redacted before is the subject of ongoing litigation. deemed to be confidential and not subject disclosure of the disciplinary records, while to inspection or review. Two exceptions to other information is permitted—although not Impact on Criminal Trials libn this rule of confidentiality were when the mandated—to be withheld. For example, social security numbers are These two new sections of law—the repeal officer expressly consented to such review, or of § 50-a and the availability of police per- when a court issued a lawful order allowing required to be redacted from the disciplinary sonnel records via FOIL—are likely to have for such inspection. In short, officer person- records before the records are disclosed. In e-alert a substantial impact on criminal trials in nel records became virtually sacrosanct, and addition—with certain exceptions related to New York. For one thing, under well-estab- were generally shielded from review. information obtained during a misconduct/ The law was adopted in 1976, and since its disciplinary proceeding—a law enforcement lished constitutional principles, these records adoption has made it very difficult for defense employee’s medical history, as well as the might well contain impeachment material attorneys to obtain information about tes- employee’s use of an employee assistance that is required to be disclosed to the defense tifying police officers in pending cases that program, mental health service, or substance pursuant to Giglio v. United States, 405 U.S. might be good fodder for cross-examination. abuse assistance service, must be redacted 150 (1972), and its progeny. The informa- The fairly recent widespread reporting of prior to disclosure of the disciplinary records. tion might also be discoverable pursuant police-involved killings by law enforcement Also to be redacted (with narrow excep- to Criminal Procedure Law § 245.20(1)(k) officers has led to a heightened concern tions) are home addresses, personal phone (iv). It remains to be seen what information about the prior histories of these officers numbers, and personal e-mail addresses. will be required to be disclosed, and the Disclosure of the employee’s title, salary, and impact upon this responsibility where the and an increased desire to know about sim- 5 ilar incidences of misconduct by these same dates of employment is allowed. information is equally available to both the officers. Thus, amid the protests throughout Some information may be redacted by prosecution and the defense. Courts will no the country and the rise of the “Black Lives the agency responding to the FOIL request. doubt be tackling this matter when they will Matter” movement, New York’s legislators Permissible—albeit not mandatory—redac- review such personnel records in camera, and tions include records pertaining to “tech- expeditiously repealed this half-century-old 6 whether complaints and allegations that were provision in approximately six days to be nical infractions.” A technical infraction is marked unfounded or unsubstantiated will sure that those law enforcement officers who defined as a “minor violation” committed by have any relevance in a criminal trial where the law enforcement employee that relates commit misconduct will no longer have their the officer will be taking the stand and his or “solely” to the enforcement of administrative records shielded, and those who evaluate her credibility will be placed into issue. Surely complaints against such officers will know departmental rules and which (a) does not involve interaction with the public, (b) is upon the discovery of voluminous records, that their decisions will now be subject to motion in limine practice will develop as a public scrutiny. not of public concern, and (c) is not other- wise connected to the employee’s investiga- way to sort out in advance of trial what sorts OUR DAILY NEWS Availability of Law Enforcement tive, enforcement, training, supervision, or of allegations and specific assertions in the Records under the Freedom of reporting responsibilities.7 personnel records might be relevant to the And, although not part of the recent FOIL issues at trial, and which will just be too far ALERT IS FREE. Information Law amendment, Public Officers Law § 89(2) afield to be worthy of cross-examination lest The legislation that brought the repeal of permits an agency to deny access to records if the trial become a mini trial on all sorts of § 50-a also brought important changes to the disclosure would constitute “an unwarranted previously confidential matters. What was SIGN UP NOW AT Freedom of Information Law (“FOIL”). It cre- invasion of personal privacy.” The new FOIL created in six days will surely take substan- libn.com ated a statutory scheme to enable members provisions did not make changes to that tially longer multipliers in real time for crim- of the public to easily obtain the previously statute, as noted by COOG earlier this year.8 inal practitioners and judges to interpret and unavailable disciplinary records of a wide Moreover, in a July 27, 2020 Advisory understand its far-reaching import. 4 November 2020 Nassau Lawyer Nassau President’s Column Lawyer Savor the Best in Life The Official Publication of the Nassau County Bar Association 15th & West Streets, Mineola, N.Y. 11501 While settling a matter in Suffolk Supreme this • Learned together at record numbers with our online Phone (516)747-4070 • Fax (516)747-4147 week, the attorney on the other side suggested we CLE www.nassaubar.org go to the cafeteria for a cup of coffee to write up a • Provided access to justice to Nassau County resi- E-mail: [email protected] memorandum of understanding. As we sat safely dents through our Virtual Open House NCBA Officers distanced, he removed his mask and took a sip of • Shared and learned lessons at the virtual LAP retreat President coffee and I remarked, “You know, I have never seen • We plan begin the virtual Elementary-Middle Dorian R. Glover, Esq. your face.” He asked jokingly, “Is my face offensive, School Mentoring program with the introduction President-Elect do you want me to cover it?” of the Mock Trial instruction of the People vs. We laughed! It was a reminder to me how so very Gregory S. Lisi, Esq. Goldilocks hypothetical Vice President much life has changed. My experience is not unique; WE CARE’s meetings are still way too early I am sure you too can attest that you have new cli- Rosalia Baiamonte, Esq. and its Advisory Board remains hard at work. This Treasurer ents since the pandemic who you have not met in month, they are delivering 200 Thanksgiving dinners person. Yet, the obligations and responsibilities we Sanford Strenger, Esq. to deserving families in our community. have in our professional lives continue. In times such From the Secretary Greg, Rosalia, Sandy, Dan, Rick, and Liz—along as these, it is important to count your blessings and President Daniel W. Russo, Esq. give thanks! with our Board of Directors, Committee Chairs, Executive Director Members and staff of our Association—have worked Elizabeth Post Here are few things at Domus I miss most and will Dorian R. Glover tirelessly to see that we stay connected with our Editor-in-Chief not take for granted again: membership. Whether for leadership or life, connec- Christopher J. DelliCarpini, Esq. • Seeing a colleague and receiving a warm smile or tions are vital. Copy Editor strong friendly handshake We have reconfigured and redesigned our Association to stay Allison C. Shields, Esq. • Lunch with the Bench, Bar and students connected while being apart through the use of technology and Editor/Production Manager • Learning together at our CLE programs at Domus have now moved to a hybrid of in-person and online, includ- Ann Burkowsky • Volunteering with our Access to Justice Program and assist- ing the Nassau Academy of Law’s recent hybrid Bridge the Gap Photographer ing persons who may not be able to afford consultation fees Weekend. The same can be said with our court system. Hector Herrera • Attending the Lawyers Assistance Program (LAP) Retreat and being with people who are open and honest with the The Next Phase: challenges of the profession as tools are provided for meeting Return to In-Person Operations in Nassau County November 2020 the challenges Criminal Law • Sitting with my mentee in a class and listening to his/her The Nassau County Bar Association recognizes the task at Andrea M. DiGregorio and Tammy cares and concerns face-to-face hand and values the extraordinary effort our Administrative Smiley • Serving as a legal advisor or judging in the NYS Moot Court Judge, Hon. Norman St. George, as he and his staff are slowly and Focus Editors Competition and seeing our future attorneys litigate with deliberately increasing in-person courthouse proceedings. The Rhoda Y. Andors, Esq. proper respect and professionalism while advocating their side monthly reports from Justice St. George to our Supreme Court Cynthia A. Augello, Esq. • Attending WE CARE’s meeting at 8:00 AM and saying to Coronavirus Task Force have provided the steps of forward prog- Rudy Carmenaty, Esq. myself, “This is way too early, but these bagels are delicious ress. On October 15, the Task Force was invited to the Supreme Christopher J. DelliCarpini, Esq. and look at the stars of this advisory board work for the Court and were given an opportunity to ask questions and observe Thomas McKevitt, Esq. common good” the court’s readiness. Jeff H. Morgenstern, Esq. I have realized how much a blessing not only joining the Some of the protective safety measures and protocols imple- Nassau County Bar Association has been, but how much becom- mented include layout changes with clear partitions erected on ing an active member of the Association has been to my personal two sides of the judge’s bench and the relocation of juror seating to Upcoming Focus Issues and professional life. courtroom rows where spectators previously sat. Now, witnesses December 2020 Thanksgiving is a time to count our blessings and savor all of will testify from the jury box and the tables where attorneys sit Commercial/Bankruptcy/Tax Law the experiences we had. When we think of savor, we often think with their clients have been rotated in the courtroom to provide of food. When I think of savor, I think of the other definition—to for more distancing. Attorneys will only deliver remarks from a give oneself to the enjoyment of, to savor the best in life. podium. Spectators will be seated in another courtroom and will Committee Members Let us count our blessings that through innovation and com- be able to view the proceedings with state-of-the-art technology. Christopher J. DelliCarpini, Esq., mitment, in recent months, WE have: As I take the time to count my blessings and savor all the expe- Co-Chair • Seen our colleagues and received warm smiles during our riences, I want you to know individually and collectively that I am Andrea M. DiGregorio, Esq., Co-Chair Drive-By BBQ at the Bar. grateful you are one of them. Happy Thanksgiving! Rudy Carmenaty, Esq., Vice-Chair Rhoda Y. Andors, Esq. Cynthia A. Augello, Esq. Deborah S. Barcham, Esq. Hon. Robert G. Bogle Deanne Marie Caputo, Esq. Ellin Cowie, Esq. Nancy E. Gianakos, Esq. Adrienne Flipse Hausch, Esq. Jordan K. Hoffman, Esq. Janine Luckie, Esq. Michael J. Langer, Esq. Michael H. Masri, Esq. Thomas McKevitt, Esq. Daniel McLane, Esq. Jeff H. Morgenstern, Esq. Marian C. Rice, Esq. Daniel W. Russo, Esq. Allison C. Shields, Esq. Tammy Smiley, Esq. Ellen B. Tobin, Esq. Published by Long Island Business News (631)737-1700; Fax: (631)737-1890 Publisher Graphic Artist Joe Dowd Wendy Martin Nassau Lawyer (USPS No. 007-505) is pub- lished monthly, except combined issue of July and August, by Long Island Commercial Review, 2150 Smithtown Ave., Suite 7, Ronkonkoma, NY 11779- 7348, under the auspices of the Nassau County Bar Association. Periodicals postage paid at Mineola, Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association that are of substantive and procedural legal interest NY 11501 and at additional entries. Contents copy- right ©2019. Postmaster: Send address changes to to our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to Nassau Lawyer, the Nassau County Bar Association, 15th and West its editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations, and quotations. Streets, Mineola, NY 11501. Nassau Lawyer November 2020 5 Criminal Law Recent New York State Chokehold Law: Meaningful Reform or Cruel Hoax? “You can fool all of the people part of the This new law has been proud- hold or similar restraint but only If the statute by its own terms does not time, or you can fool some people all the time, ly described by the legislature, when it causes serious physical ban all chokeholds, if existing law already but you cannot fool all people all the time.” the Governor, law enforcement, injury or death to another person.6 criminalizes all unjustified chokeholds, and —Hon William J. Groo, complaining about and the media as a “ban” on the Obviously, this law does not ban if the law of justification permits them under New York state politicians. police use of chokeholds. This all chokeholds as its proponents appropriate circumstances, why is the legis- is the way it is being portrayed announced. Only when the choke- lature, Governor, law enforcement, media, On May 25, 2020, Memorial Day, most of to the public. In fact, the legis- hold results in death or serious and public under the mistaken impression us were spending the day honoring our vet- lature stated that the purpose of physical injury, a tragic but infre- that this new legislation is a critical reform erans or just trying to relax and stay healthy the law is to “establish criminal quent occurrence, does the officer banning all chokeholds in response to the under the threat of the COVID-19 pandemic. penalties for the use of a choke- commit a crime. This is far from a death of George Floyd? Is this meaningful Not so George Floyd. In the process of being h o l d .” 4 The problem is that none ban on all chokeholds. arrested for allegedly using a $20 counterfeit of these descriptions of this new Fred Klein More importantly, this law was reform, a pointless exercise, or a cruel hoax bill and, without offering any resistance and law are accurate. As a reading of completely unnecessary. New York on those striving for real criminal justice being unarmed, he was handcuffed, placed Aggravated Strangulation shows, State had already criminalized reform and seeking to emphasize that Black prone on the ground with the knee of a the law neither bans nor criminalizes all chokeholds and similar restraints utilized by Lives Matter? In this era of distrust in the Minneapolis Police Officer firmly pressing chokeholds. More significantly, the police use “any person,” not just law enforcement, for truthfulness of what the government says, it against his neck for over 8 minutes, despite of chokeholds had already been criminalized a decade. In 2010 the following laws were seems counterproductive to proclaim some- Mr. Floyd repeatedly pleading that he “could in New York State a decade before the death enacted: Criminal Obstruction of Breathing thing as a reform when it is not. not breathe.” As a result of this neck restraint, of George Floyd. This new legislation adds or Blood Circulation makes it a Class A mis- If the legislature wanted to engage in mean- George Floyd died. Unlike most police civil- nothing to crimes that were already on the demeanor to apply pressure to the throat or ingful reform that would make police conduct ian encounters, however, most of this one books at the time of George Floyd’s, and even neck or block the mouth or nose of another more accountable, instead of adding duplica- was recorded by cell phone and police body Eric Garner’s, deaths. It is, at best, a pointless with intent to impede breathing or blood flow, tive laws to what has already been made crim- 7 cameras providing us with a more reliable exercise, and, at worst, a cruel hoax. even without causing injury. Strangulation inal, it would amend the justification statutes description of the encounter. Before analyzing the new statute, how- in the Second Degree makes it a Class E fel- to specify that the use of any form of neck This scenario is eerily familiar to New ever, it is important to define exactly what ony to engage in the above conduct where it restraint amounts to deadly physical force.15 Yorkers. In 1991, unarmed Frederico Pereira is meant by a police “chokehold.” In an causes “stupor, loss of consciousness for any 1 At least this would notify police officers that of Queens died from a police chokehold effort to subdue suspects without resorting period of time, or any other physical injury the lawful use of chokeholds is strictly limited during an arrest. The officer involved was to the use of weapons, police training has or impairment.”8 Finally, Strangulation in to situations where deadly physical force is acquitted of Criminally Negligent Homicide previously included the use of some sort of the First Degree already made it a Class C after a bench trial. In 1994, unarmed Anthony neck restraint to obtain compliance. These violent felony to engage in the above conduct permitted, not to restrain every suspect who Baez of The Bronx died from a police choke- neck restraints involve two separate tech- where it causes “serious physical injury” to fails to comply with verbal requests or who hold during an arrest. Although the offi- niques. One involves placing the officer’s arm another person,9 exactly the same conduct resists physically. This would clarify for the cer involved was acquitted of Criminally around the center of a suspect’s neck in an and result with the same 15-year maximum police when a chokehold is illegal, limit their Negligent Homicide after a bench trial, he effort to compress the windpipe and cut off punishment as the newly enacted Aggravated use to when it is necessary to save lives, and be was subsequently convicted of Federal civil breathing. This can cause extreme distress Strangulation. None of these existing crimes a meaningful reform to avoid needless injury rights crimes and sentenced to 7½ years in by depriving the lungs and brain of oxygen. exclude law enforcement officers from their and death to suspects. prison. From 2009 to 2013, the New York It can also cause fractures to the larynx, prohibitions. Fred Klein is a full-time professor at Citizen Complaint Review Board recorded trachea, or thyroid bones. This is referred to Therefore, it is obvious that Aggravated Hofstra Law School teaching in the areas receiving more than 1,000 complaints about as a “choke” or “strangle” hold. The second Strangulation neither bans all chokeholds of criminal law, criminal procedure, and police officers using chokeholds on civil- technique involves placing the officer’s arm (limited to when serious physical injury or trial advocacy. He is a former Chief of the ians.2 More recently, in 2014, unarmed Eric around the sides of a suspect’s neck in an death is caused) nor was it a necessary reform Major Offense Bureau in the Nassau County Garner of Staten Island, while being arrested effort to squeeze the arteries leading to the because already long-existing statutes actual- District Attorney’s office. He was assisted by New York City police officers for a minor, brain and thereby cutting off blood flow. This ly went much further in criminalizing the use in the preparation of this article by Kelly nonviolent offense, was killed by a police is referred to as a lateral vascular or carotid of neck restraints than this new law did (not R. McKinney, a 3L student at Hofstra Law officer using a chokehold, despite repeatedly hold and can also result in extreme distress requiring any injury or only physical injury). School. pleading that he “could not breathe.” A grand to the suspect. Additionally, as all criminal law practi- 1. A chokehold is a form of neck restraint used by the jury declined to issue any charges against the These two techniques are aimed at obtain- tioners know, chokeholds cannot be banned police to subdue an uncooperative suspect. For a thor- officer and the United States Department of ing compliance by rendering the suspect under all circumstances given the law of ough description of various neck restraints and their Justice declined to bring criminal civil rights incapable of resisting. If the pressure is main- justification. Civilians are justified in using effects on people, see City of Los Angeles v Lyons, 461 US charges. The officer was subsequently fired tained too long, however, or the vascular deadly physical force on another person if it 95, 97 n.1 (majority opinion) and 114-17, 117 n.7, 119 by the city. restraint becomes a chokehold by purposely is reasonably believed that the other person (Marshall dissenting). As a result of the death of George Floyd or inadvertently shifting the location of pres- is about to use deadly physical force on them 2. Swanson, Revisiting Garner With Garner, 57 South Texas Law Review 401, 440 (2016). from the police-administered neck restraint, sure on the suspect’s neck to the front during or to prevent or terminate the commission of 10 3. Penal Law § 121.13-a. This should be distinguished four members of the Minneapolis Police a struggle, it can result in unconsciousness or certain violent crimes. Furthermore, police from legislation enacted by the New York City Council Department have been charged with felony even death. A suspect may also involuntarily officers are permitted to use deadly physical and signed by the Mayor on July 15, 2020, which makes murder. Immediately after the videos of Mr. react violently to the loss of blood flow or force under the above circumstances as well it a misdemeanor for a police officer to restrain a person Floyd’s death were publicly released, people oxygen which could, in turn, be misinter- as to effect an arrest or prevent escape from a by any means which restricts the flow of air or blood, took to the streets in protest, mostly peaceful preted by the officer as willful resistance that violent felony.11 The law of justification does including compressing the diaphragm, without any intent but occasionally resorting to looting and must be overcome by prolonging the choke- not distinguish between permissible forms or injury. NYC Adm. Code § 10-181. 4. Senate Bill S 6670 B “Purpose.” violence. These protests continued for days, hold and/or increasing the force applied. of deadly physical force and impermissible 5. Lyons, supra at 116 n.3. weeks, and then months after Mr. Floyd’s The risk of serious injury or death is also forms, once the use of deadly physical force 6. Penal Law § 121.13-a death. The protests have grown to include increased by the poor state of health of the is authorized. 7. Penal §121.11. other recent deaths of African Americans suspect, something unknown to the officer. Deadly physical force is defined as physi- 8. Penal Law § 121.12. killed by police action. They have expanded In recognition of the extreme risks involved cal force which is “readily capable of causing 9. Penal Law §121.13. beyond Minneapolis to New York, the entire with the police use of neck restraints to subdue death or other serious physical injury.”12 10. Penal Law § 35.15. 11. Penal Law § 35.30. United States, and even internationally. uncooperative suspects, some police depart- Based on the potentially lethal and unin- 12. Penal Law§ 10.00(1). The protesters have demanded substan- ments have stopped including them in training tended consequences flowing from the use 13. People v Pietoso, 168 AD 3d 1276 (3rd Dept 2019); tial changes to law enforcement to deal and others have labelled them an unauthorized of chokeholds, one court in New York State see also Tuuamalemalo v Greene, 946 F3d 471 (9th Cir. with institutional racism. These demands technique which should be avoided. However, has already determined that their use by a 2019). have included more police accountability these administrative efforts have failed to deter civilian constitutes deadly physical force.13 14. Senate Bill S6670 B “Sponsor Memo.” and transparency, a reallocation of resources their usage as internal discipline is often lenient Therefore, it is misleading if not an outright 15. Swanson, Revisiting Garner With Garner, supra at from law enforcement to social programs, or nonexistent. Moreover, their use by the police lie to declare that Aggravated Strangulation 442-43. and, particularly, a “ban” on chokeholds as has also resulted in serious injury and death “bans” the use of chokeholds. The legisla- a police technique to restrain suspects. As disproportionately to African-Americans.5 ture actually expressly conceded this. In the For Information on a direct result of these protests, the New In immediate response to the protests Sponsor Memo accompanying the bill, the York State legislature passed, with only three stemming from the death of George Floyd, legislature specifically acknowledged that the LAWYERS’ dissents, and Governor Cuomo signed, the New York State enacted several forms of “bill does not bar any affirmative defenses or “Eric Garner Anti-Chokehold Act” entitled criminal justice reform, including “The justifications for the use of force in making AA MEETINGS Aggravated Strangulation.3 This law went Eric Garner Anti-Chokehold Act” labelled an arrest or in preventing an escape as out- into effect less than three weeks after Mr. Aggravated Strangulation, a Class C vio- lined in Section 35.30 of the Penal Law.”14 Call Floyd was killed. Perhaps the legislators lent felony, punishable by up to 15 years in Therefore, in circumstances where deadly should have spent more time discussing the prison. This legislation prohibits a police or physical force is necessary, a police officer provisions of this new law rather than rush- peace officer from intentionally obstructing can still lawfully use a chokehold even under (516) 512-2618 ing to enact “something.” breathing or blood flow by using a choke- this new Aggravated Strangulation statute. 6 November 2020 Nassau Lawyer Criminal Law Cannabis and COVID-19: SAVE THE DATE A Hazy 2020 Vision The United States of America get crisis.9 Alternatively, New York faces a once-in-a-lifetime calamity. can cut spending. However, elimi- The country is in the midst of a nating the deficit solely by billions 88TH ANNUAL devastating economic crisis—con- of dollars in spending reductions fronting a rise in unemployment does not appear feasible, when HOLIDAY CELEBRATION rates, permanent job loss, and an increases in spending are more approaching presidential election likely than not. Finally, New York in which a major party candidate State can increase current taxes THURSDAY, DECEMBER 3, 2020 | 6 PM for President is accused of lead- and/or impose new taxes to secure ing the country down the path of Elizabeth Kase the revenue necessary to close the VIA ZOOM socialism.1 Demands come from 2020 budget deficit. Many elect- across the political spectrum for ed officials and progressive poli- ENJOY THE TRUE "TALE OF WASSAIL" TOLD BY new sources of tax revenue to solve the finan- cy makers are advocating increasing income PRESIDENT-ELECT GREGORY S. LISI, SEASONAL MUSIC, cial crisis. To provide much-needed financial taxes as well as the imposition of new types AND SING ALONG BY NCBA PAST PRESIDENTS. relief to escalating budget shortfalls, the fed- of taxes on wealthy New Yorkers, something eral government enacts a measure to cre- Governor Cuomo has been hesitant to do.10 DROP OFF AN UNWRAPPED TOY TO THE NCBA TO BE ate new revenue by legalizing a substance One should expect a combination of two or DISTRIBUTED BY WE CARE TO LESS FORTUNATE viewed by a portion of the American public more of these options, but with respect to CHILDREN IN NASSAU COUNTY BEFORE DECEMBER 3. as dangerous and a cause of rising crime rates. additional tax revenue, the general issue is America in 2020? Nope. It is the repeal of the what more can be taxed and by how much? PRE-REGISTRATION IS REQUESTED! Prohibition in 1933. But history tends to repeat itself and the Adult-Use Legalization of Cannabis: New York’s Hail Mary? TO REGISTER FOR THE HOLIDAY CELEBRATION OR FOR United States once again faces a significant MORE INFORMATION, CONTACT OUR SPECIAL EVENTS economic crisis and a need for new tax revenue The COVID-19 pandemic has provided a DEPARTMENT AT [email protected] OR and job creation. The COVID-19 pandemic watershed moment for the cannabis industry (516) 747-4070 EXT. 1226. has thrown every aspect of American life as evidenced in governmental acceptance of into disarray. Work, play, education, travel… cannabis as an “essential business” during shel- the impacts and effects of the pandemic have ter-in-place orders. Of the eleven states that reverberated within every level of American legalized adult-use cannabis, eight states imme- society. Economists, politicians, and activists diately deemed recreational cannabis essential, are advocating for the legalization of adult-use thus keeping open those business when other cannabis in Washington, D.C. and Albany, types of businesses were forced to temporarily New York to help solve staggering unemploy- close. 11 Furthermore, states with medical mar- ment and a shrunken GDP, and infuse tax ijuana programs also deemed dispensaries as dollars into the dwindling national and state essential and those businesses remained open economies. In 2020, is it high time to legalize during the pandemic shutdown. Like sales of adult-use cannabis? Lessons from history may alcoholic beverages, sales of cannabis surged not clear away the haze. during the spring, providing economists and politicians with crucial insight into the desire for 2020 Economic Landscape cannabis as a mainstream product.12 As of August 2020, the unemployment Moreover, current civic unrest and the CONNECT WITH rate in the United States stood at 8.4%, Black Lives Movement underscore the critical reflecting 13.6 million Americans out of need for programs and economic pathways work.2 Although a considerable number of for equitable industry access for people of Americans have been re-employed since the color. States that have enacted cannabis pro- beginning of the pandemic, unemployment grams also established revenue reinvestment THE NCBA ON rates are more than double the steady aver- streams in minority communities as well as age of 4% experienced in 2018. New York MWBE opportunities and fast-track applica- State, which bore the brunt of the COVID-19 tions processes for licensing.13 In its mission pandemic in its early days, has seen its unem- statement, Massachusetts’ Cannabis Control ployment rate skyrocket to 15.9%. As of July Commission states that it is “committed to SOCIAL MEDIA 2020, over 1.5 million New Yorkers remain an industry that encourages and enables full unemployed.3 participation by people from communities The economic shutdown and high rates of that have previously been disproportion- unemployment have necessitated a marked ately harmed by marijuana prohibition and surge in federal and state spending, result- enforcement.”14 Nationwide, the cannabis For the latest updates on COVID-19 ing in a staggering increase to the federal industry currently employs approximately deficit. In January 2020, the Congressional 250,000 full time jobs and is the fastest grow- the NCBA, and court information, Budget Office (CBO) projected the deficit to ing job sector in the country.15 be at an already alarming $1.0 trillion.4 Now, Although Governor Cuomo had publicly connect with us on social media. subsequent to the COVID-19 pandemic and prioritized legalization of adult-use cannabis resulting economic impact, the CBO revised in New York’s 2020 legislative session ahead its deficit projection upward to $3.3 trillion. of the pandemic,16 Governor Cuomo and the For the first time since World War II, the fed- Democratic-controlled Legislature failed to eral debt will be close to the size of the entire reach an agreement, let alone a vote, on adult- national economy.5 use. It is unclear whether the parties will reach Similarly, New York is experiencing a new an agreement on cannabis legalization in 2020, dire economic reality caused by the COVID- notwithstanding the fact that the Governor Nassau County Bar Association 19 pandemic. After years of budget surpluses, and State Legislature will need to return to New York now faces a nearly $15 billion Albany and reach an agreement on how to budget deficit in 2020, with a projected $16 reduce the State’s budget deficit. Added to New billion budget deficit in 2021.6 Adding to the York’s incentive to act quickly is the expected financial crisis is a shortfall in New York’s passage of New Jersey’s November ballot ini- sales tax collections, down $1.2 billion for the tiative legalizing adult use. With New Jersey first half of 2020.7 providing a possible marketplace for New New York State has limited options to York consumers, one should expect Governor address its current fiscal woes. One pos- Cuomo and the State Legislature to take up this @nassaucountybar_association sibility to close the budget gap is through issue in 2021, if not sooner. direct federal aid. For months, Governor New York should look to Illinois’ recent- Cuomo has sought more than $60 billion ly developed program for guidance and from President Trump and Congress.8 Such compelling evidence of immediate financial aid is neither forthcoming nor predicted to solve the greater issues facing New York’s bud- See HAZY 2020, Page 15 Nassau Lawyer November 2020 7 Criminal Law Acknowledging the Realities of Transgender People in the Criminal-Legal System People from all walks of life may end up The Law as It Stands approximately 40% of whom report- transition. This can include hormone thera- in situations where they become incarcer- ed a sexual assault in the past year.2 py, surgical intervention, and voice training, Both New York state and fed- ated. For some, their mere existence makes Nearly 1/3 of respondents to the U.S. among other things. Ordinarily, when a med- it much more likely that they will become eral law purportedly protect incar- Transgender Survey (2015) who were ical professional determines that an incarcer- involved with the penal system whether they cerated transgender people from incarcerated report that they were ated person needs medical treatment (say, for break the law or not. For the approximately being housed incorrectly, discrim- “physically and/or sexually assault- diabetes or cancer), they are (in theory) pro- 1.4% of the US population they make up, inated against, or otherwise denied ed by facility staff and/or another vided with access to that treatment and the transgender people are wildly overrepresent- equal access to care and commis- inmate in the past year.”3 Whether cost of that treatment is covered by the state. ed in the incarcerated population. sary items (undergarments, hair someone is housed in a facility that The person is in the custody of the correc- “[O]ne in six (16%) respondents in the 2008- products, etc.). In practice, how- accords with their gender identity— tions department and thus, the department 2009 National Transgender Discrimination ever, every jurisdiction is basically as the law requires the option for—is of corrections is constitutionally obligated to Survey had been incarcerated at any point left to its own devices, with bare- Charlie Arrowood a deeply personal decision based on provide them with medically necessary care. during their lives, with the rate skyrocketing to ly any enforcement, save for the individual considerations. Due to historical and current discrimi- 47% among Black transgender people.”1 Many infrequent circumstances when a Imagine, for a moment, that you nation and a lack of experienced providers, factors contribute to this reality, but whatever transgender person happens to have access are the only woman in a men’s prison facility. It transgender care is often effectively exempted the reason for any particular transgender per- to legal assistance. is not hard to recognize that in a hyper-mascu- from this rule in practice. Sometimes the son, their transgender status inevitably colors Often, people are housed according to the linized environment with a dearth of women, argument is cost-based even though tran- their experience behind bars. name and gender designation on their docu- you would likely be at increased risk for sexual sition-related care is less costly than many The word “transgender”—an adjective— ments. Because standards for changing those assault or harassment. Now imagine that you other medical treatments and decreas- means a person whose gender identity does documents differ depending on jurisdiction, are a transgender man in a men’s facility. By es future costs for comorbidities related to not match the sex they were assigned at birth. whether a person is housed correctly and all outward appearances, you are no different healthy living and mental health. Sometimes The word “cisgender”—also an adjective— given the attendant access to care and services from your cisgender peers…until you have to the argument is thinly veiled transphobia means a person whose gender identity does is arbitrary and based on where they happen use a communal bathroom or shower, or until masquerading as concern—making argu- match the sex they were assigned at birth. to be born, convicted, or incarcerated. you are subject to a strip search. Inevitably, the ments such as the person does not have the A transgender woman is a woman who was Safety Considerations news of your anatomy makes its way around capacity to make their own decisions about assigned male at birth. A transgender man is the facility and suddenly you are a target. In their healthcare and they want to make sure a man who was assigned female at birth. A Safety is inherently difficult to ensure in many cases, the determining factor is not the person is not doing something irrevers- nonbinary person is someone who does not confinement facilities. Jails and prisons are whether the facility affirms your gender (as ible that they will regret later. Sometimes it’s identify as squarely male or female. People often close quarters, there exists a power imbal- cisgender people may assume it would be), but not so thinly veiled transphobia that flies in who fall into any of these categories may ance between the staff and the people who are whether you will be subject to increased risk the face of all available medical evidence— be gender conforming or gender noncon- detained, a hierarchy among residents, and a because of your transgender status. this care is cosmetic under all circumstances. forming, which is about their expression of scarcity of resources. Sexual assault both at the These same arguments are also used outside gender (the clothing they wear, their hair, hands of staff and between incarcerated people is Medical Care in Custody the penal system to deny transgender people their accessories, etc.) rather than how they not uncommon. This risk is exacerbated nearly Some transgender people choose to feel internally. ten-fold for incarcerated transgender people, undergo medical intervention as part of their See TRANSGENDER, Page 19 FREE CONFIDENTIAL* HELP IS AVAILABLE

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The NCBA Lawyer Assistance Program is directed by Beth Eckhardt, PhD, and the Lawyer Assistance Committee is chaired by Jacqueline A. Cara, Esq. This program is supported by grants from the WE CARE Fund, a part of the Nassau Bar Foundation, the charitable arm of the Nassau County Bar Association, and NYS Office of Court Administration. *Strict confidentiality protected by § 499 of the Judiciary Law.

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NASSAUBAR-LAP.ORG 8 November 2020 Nassau Lawyer Criminal Law Autistic Victims and Defendants Need More Robust Protections Under the Law

Autistic people face unique challenges • repeat or echo words or phras- alyzing his date’s cold shoulder. an inference of Cottrell’s intent from the cir- that place them at a disadvantage in the es said to them, or repeat He completely ignores her fare- cumstances, it was relevant and could have criminal justice system as victims and as words or phrases in place of well and good luck text as if it assisted the jury’s determination of whether defendants alike. Society’s rigid intolerance normal language never happened and instead pro- Cottrell had the specific intent required for for social ineptitude and misunderstanding • have trouble expressing their ceeds to inundate her with texts aiding and abetting” in relation to the arson of autism translates to biased complainants, needs using typical words or demanding that she explain her charge. biased police, and consequently, an already motions body language to him because he Black Lives Matter and Autistic Rights biased jury even before the prosecution and • repeat actions over and over has “never experienced something activists have petitioned Governor Ralph the defense present their opening arguments. again like (it) before.” Northam to pardon Matthew Rushin, a Likewise, the very characteristics of those • have trouble adapting when a Throughout the drive, she is young autistic African American man serv- with autism prompt hardened criminals to 1 not checking her phone, but he is ing fifty years in prison in Virginia after routine changes Frances disproportionately target them for victim- persistent for nearly a half hour pleading guilty to two counts of malicious Catapano ization. As such, the law needs to go a step According to a recent CDC demanding an explicit answer wounding and felony leaving the scene of 4 further to protect them than they would the report, 1 in 54 eight-year-old chil- from her. She finally gets to the an accident. The prosecution originally dren will be diagnosed with some form of parking lot of her complex, grabs her phone charged Mr. Rushin with attempted murder. average person. 2 The CDC website defines autism spec- autism. and scrolls down the multitude of texts to On a rainy night, Mr. Rushin experienced trum disorder (ASD) as “a developmental Mental Condition and Mental State find him explicitly asking her an inappro- an accident in a parking lot, panicked and disability that can cause significant social, priate question about characteristic traits. drove away crying. He then realized he had communication and behavioral challenges” Suppose a young man meets for drinks a When she answers “no,” he begins arguing to stay at the scene, so he attempted a U-turn, and states that people with ASD “often have young woman he met on a dating site. She with her that the answer is “yes” and that she but instead of applying the brake he hit the problems with social, emotional and commu- does not feel any chemistry and does not is just embarrassed to admit it and that this accelerator, causing a head on collision and nication skills.” Those with ASD have differ- want another date. As she walks back to her is perhaps why she is acting disinterested seriously injuring the elderly driver of the ent ways of reacting to things, which is how car at the end of the night, she is giving him in him. He further claims that many people other vehicle. they may find themselves on the other side polite one-word answers as he drones on within her ethnic group possess those traits Afterwards, a bystander got out of the car of the law. The CDC states that, among other about the history of every building they walk to back his argument and even utters an and asked if Mr. Rushin was trying to kill issues, children or adults with ASD might: past. There is clearly no interest on her part, ethnic slur. She naturally becomes hurt and himself. He then mimicked the bystander’s • have trouble relating to others or not have but it is not apparent to her date. He notices voices that she is offended. He responds that words, which is a manifestation of an autism there is nothing wrong with what he said and an interest in other people at all her cold shoulder but does not know what symptom known as echolalia (the meaning- actually believes this to be true. He is unable 5 • have trouble understanding other peo- to make of it. Before quickly climbing into less repetition of another person’s words). To to grasp the social convention that it is taboo ple’s feelings or talking about their own her car, she says thank you and good night. add insult to injury, when being interrogated to make generalizations about someone’s eth- feelings She texts him to say thank you but that she by police, Mr. Rushin was in so much distress nicity and to utter an ethnic slur. • appear to be unaware when people talk to doesn’t think they are compatible and wishes that he told them he wished he were dead. He cannot understand her feelings due them, but respond to other sounds him luck in his search before driving home. These words combined with his display of to his impairment. Because of his failure to echolalia at the scene provided the basis to • be very interested in people, but not know As the young woman heads home, the pick up on her non-verbal cues indicating satisfy the intent element of the attempted how to talk, play, or relate to them young man is dumbfounded and overan- disinterest, he keeps texting and calling her murder charge. for days demanding an explanation for her Complicating matters even further, cold shoulder. He is then charged in New Matthew Rushin’s poor social cognition skills York with aggravated harassment in the sec- that accompany an autism diagnosis meant he LAW YOU SHOULD KNOW ond degree under Penal Law § 240.30(1)(a). did not understand what he was doing when The prosecution would deduce that the inar- he pleaded guilty to lesser charges. Had the On 90.3 FM WHPC guably bigoted statements he texted to the case gone to trial and the Cottrell standard Hosted by Kenneth J. Landau, Esq. woman prior to inundating her with phone been applied, the defense may have convinced calls would satisfy the “intent to harass” or a jury that Mr. Rushin’s condition negated the Celebrating 30 Years! “annoy” element required to charge him. intent element for attempted murder. In New For Voicestream or PODCAST go to www.NCCradio.org Applying a reasonable person standard, York, Mr. Rushin might have only faced a he could not claim the standard affirmative misdemeanor charge of leaving the scene of an defense as there is no legitimate purpose for accident and a motor vehicle lawsuit. Wednesday, October 28, 2020 texting someone unequivocally racist remarks. In addition, criminals disproportionately Managing Your Law Firm During COVID-19 Given the racist, inappropriate nature of his target autistic people due to their inherent at 3:00 PM words in the texts, common sense presumes vulnerability. Here in New York, police offi- an intent to annoy as defined by the penal code cer Michael Valva and his fiancee Angela Wednesday, November 4, 2020 for aggravated harassment in New York, and Pollina face charges of second-degree mur- Year End Tax Tips for Lawyers and Clients, he could theoretically face criminal charges. der in regard to the death of the officer’s Especially Concerning COVID and the Purchase or Sale of Real Estate Generalizations about one’s ethnicity along autistic eight-year-old 6son Thomas Valva, at 3:00 PM with the utterance of a racial slur are “likely to and four misdemeanor counts related to cause annoyance” if not “alarm.” the alleged abuse of Thomas and his older Wednesday, November 11, 2020 While people do recognize a difference in brother Anthony Valva, who is also autistic. Leslie Tayne Esq., author of Life and Debt, autistic individuals when they exhibit odd, Between the couple, there were six children Offers Tips to Lawyer and Clients About Alternatives to Bankruptcy, eccentric behaviors, they nevertheless judge living in the mixed family household. News and Strategies for Managing Debt Including Student Loans them by the standards set for non-autistic reports indicate that the couple allegedly at 3:00 PM people. This bias carries on into jury deliber- singled out Thomas and Anthony for most ation at criminal trials. The jury of non-au- of the abuse. In addition to contending that tistic citizens sees the man’s odd demeanor the couple physically abused and starved RECENT PODCASTS INCLUDE and does not like him before they even know Thomas and Anthony, the prosecution The Low Cost Paralegal Program at Nassau Community College what he texted to her. And then they see his alleged that the couple forced the boys to for College Students or Grads racist texts. They don’t care that the autistic sleep in the garage. On January 17, 2020, man means no malice and is unable to grasp Practicing in a Pandemic Thomas died in that garage from hypother- the offensiveness of his words. He’s just a mia in the frigid winter weather. Tax Residency Issues weirdo they love to hate notwithstanding his The indictment in People v. Valva and bigoted words. They convict him of aggravat- Introduction to Mediation Skills Pollina alleges that Thomas and Anthony were ed harassment. deprived of breakfast as punishment for failing to “use their words.” Given their autism diag- GUESTS WANTED The Consequences of noses, the boys struggled to communicate, so Contact us at [email protected] if you would like to discuss an Misunderstanding Autism they were essentially punished for being who interesting/important aspect of the law. In United States v. Cottrell,3 the defendant they are. Since Valva and Pollina specifically Mr. Cottrell was convicted of conspiracy targeted these boys for exhibiting symptoms and arson. The Court of Appeals affirmed of autism, they should face the more serious CLE OFFERED the conspiracy conviction but overturned felony charges of endangering the welfare of *You can earn CLE by listening to broadcast, podcast (or purchasing CDs) an incompetent or physically disabled person of these shows. Check with the Nassau Academy of Law for details. the arson conviction and remanded it to the lower court to instruct the jury on autism. in the first degree under Penal Law § 260.25. Visit www.nassaubar.org or call (516) 747-4464. The court held that “[t]o the extent that the Asperger’s evidence was aimed at defeating See PROTECTIONS, Page 19 Nassau Lawyer November 2020 9 Criminal Law Use of Acquitted Conduct in Sentencing: Is the Tide Turning? Assume a defendant is charged with both right to present mitigation evi- ed,12 every Circuit court in the Richard M. Langone is past Chair of the murder and illegal possession of the gun used dence in Capital cases.8 Simply Nation has followed Watts. But NCBA Appellate Practice Committee. His bio to shoot the victim; he is later acquitted of stated, due to the influence of the this practice has not been without can be found at rlangone.com, and he can be contacted at (516) 795-2400. Mr. Langone the murder but convicted of possessing the ecclesiastical courts on the com- its critics, including many federal represented Mr. Asaro on appeal and the gun. Can the sentencing court nevertheless mon law, even the King had to circuit court judges, and several initial certiorari petition. consider the acquitted murder in sentencing bend a knee to God. Supreme Court Justices, including the defendant for the gun? Indeed, absent a belief in the the late Justice Scalia, and recently 1. Compare People v. Anonymous, 34 N.Y.3d 631, 642 Federal law permits such consideration, superiority of Justice over the Law, appointed Justices Kavanaugh and (2020) (prohibiting use of acquitted conduct that is under certain circumstances. The New York there would have been no excuse Gorsuch.13 “sealed” under CPL § 160.50 to enhance sentence) with Court of Appeals has yet to address this issue for the American Revolution— Unlike the other (failed) People v. Zowaski, 31 Misc.3d 242 (Middletown City Ct. under the New York State Constitution.1 A the Founders were all traitors 2011) (permitting use of unsealed acquitted conduct to attempts to distinguish or overrule enhance sentence but employing “clear and convincing recent state court decision from Michigan, under British law. Dr. Martin Richard M. Watts, which were all predicated Langone evidence” test). A word of advice: Don’t waive the client’s however, may guide our own courts. Luther King’s 1963 letter from the on double jeopardy, Asaro framed right to “seal” a record if you don’t have to.) Birmingham City Jail would be the question presented different- 2. 519 U.S. 148 (1997). Federal and State whimsical if we did not believe in the superi- ly; namely, whether reliance on acquitted 3. 939 N.W.2d 213 (2019). Approaches to Acquitted Conduct ority of natural law over racially biased man- conduct violated the “presumption of inno- 4. Id. at 216. made laws. So-called “sanctuary cities” would 5. W. Blackstone Commentaries *38-41 (“For he has so Under federal law, acquitted conduct can cence,” a corollary of the reasonable doubt intimately connected, so inseparably interwoven the laws be the basis for an enhanced sentence on be considered rogue but for the volksgeist of standard. Specifically, Asaro argued that a of eternal justice with the happiness of each individual, the crime of conviction (up to the statutory the citizenry that our immigration laws are jury’s verdict of “Not Guilty” is a solemn act that the latter cannot be attained but by observing the maximum for the offense of conviction) if the immoral and unjust. that ripens the “presumption of innocence” former… . This law of nature, being coeval with man- kind, and dictated by God himself, is of course superior district court finds (de novo) the defendant into an established fact forever more—at least Asaro: Acquitted Conduct in the eyes of the law. And that due process in obligation to any other”). guilty of the acquitted conduct by a prepon- in New York Courts 6. Linkletter v. Walker, 381 U.S. 618, 623 (1965) (“The derance of the evidence. In Watts v. United prohibits use of a ripened presumption of judge rather than being the creator of the law was but its innocence—vis-à-vis acquitted conduct—for discoverer… . In the case of the overruled decision,… , it States, the U.S. Supreme Court held that a New York courts have long disapproved 14 “not guilty” verdict was a finding of rea- of jury nullification but grudgingly recognize sentencing enhancement purposes. was thought to be only a failure at true discovery and was sonable doubt, not actual innocence.2 Since that it exists.9 So, while defense counsel may Shortly after Asaro was denied (based consequently never the true law”). 7. United States v. Powell, 469 U.S. 57, 63 (1984). the preponderance of the evidence standard ask a jury to acquit for equitable reasons in on Watts), the Washington, DC, law firm Williams & Connolly, LLP, reached out to 8. Roberts v. Louisiana, 428 U.S. 325 (1976). governs admissibility of sentencing evidence, summation, courts typically will preclude any 9. See, e.g., People v. Goetz, 73 N.Y.2d 751, 752 (1988) the Court held, acquitted conduct may be defense effort to present evidence in support assist Asaro’s counsel in preparing a certiorari (“While there is nothing to prevent a petit jury from considered at sentencing provided it meets of a jury nullification defense, and will never petition. They thought the question present- acquitting although finding that the prosecution has the preponderance standard of reliability. instruct the jury that they may acquit if they ed in Asaro warranted the Supreme Court proven its case, this so-called mercy-dispensing power… However, in People v. Beck, the Supreme found sufficiently compelling counter-veiling revisiting its holding in Watts. However, is not a legally sanctioned function of the jury and should not be encouraged by the court”); United States v. Court of Michigan flatly repudiated Watts— equitable reasons not to convict. But is that after requiring the government to respond 3 to Asaro’s petition, and after two postpone- Thomas, 116 F.3d 606, 615 (2d Cir. 1997)); but see People on federal constitutional grounds. Beck was what the Framers intended? Doubtful, since v. Mendoza, 33 N.Y.3d 414, 418 (2019) (recognizing jury convicted at trial of being a felon in posses- the Framers, believing that power corrupts, ments of the Quorum Vote on his Certiorari nullification as “an inevitable consequence of the jury sion of a firearm during the commission of distrusted all forms of governmental power petition in light of Beck, the Supreme Court system and the system’s features designed to protect the 15 a felony murder. Beck was acquitted of the over its citizens. denied it. jury’s power to acquit”). murder, but the sentencing court nevertheless On the federal level, the precedential 10. 767 F.3d 173 (2d Cir. 2019). : 11. See United States v. Booker, 543 U.S. 220, 240 & n.4 sentenced him as if he had been convicted of vitality of Watts was recently challenged in Watts v. Beck 10 New York at A Crossroads (2005) (noting that since Watts did not “even have the that offense, based on a preponderance of the United States v. Gotti (Asaro). The appeal benefit of full briefing or oral argument,” “[i]t is unsur- evidence finding. Reversing, the Michigan involved Vincent Asaro, an alleged capo in Those of us who were intimately involved prising that [the Court] failed to consider fully the issues Supreme Court held that federal “due process the Bonanno La Cosa Nostra (“LCN”), who in the Asaro certiorari petition believe the loss presented… .”). bars sentencing courts from finding by a pre- was previously charged in a RICO indict- resulted from decades of reliance on Watts by 12. See, e.g., Mandel v. Bradley, 432 U.S. 173 (1977). ponderance of the evidence that a defendant ment in the Eastern District of New York 13. See Jones v. United States, 135 S. Ct. 8 (2014); United federal sentencing courts. Nevertheless, that States v. Sabillon-Umana, 772 F.3d 1328, 1313 (10th Cir. engaged in conduct of which he was acquit- with participating in the infamous 1978 should not prevent State courts from grant- 2014); United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015). ted” and “sentence[ing] the defendant as if he Lufthansa heist (that led to the book and ing greater due process protections under 14. See Nelson v. Colorado, 137 S. Ct. 1249 (2017) (hold- 4 committed that very same crime.” movie “Goodfellas”), and in the 1969 murder our State Constitutions.16 Beck is a great ing when a conviction is reversed, the “presumption of The ratio decidendi of the Michigan of Paul Katz. In 2015, a jury acquitted Asaro new authoritative starting point to future innocence” is restored; and, absent a valid conviction, Supreme Court majority’s holding was the of those charges. However, two years later (in challenges to the use of acquitted conduct at a penalty of any type [fine or incarceration] is strictly solemnity and importance of the jury’s verdict 2017), Asaro was again arrested by the feds, prohibited). sentencing, and for defense counsel to raise 15. Asaro v. United States, 140 S.Ct. 1104 (Mem), 206 of “Not Guilty” in our Federal Constitution this time charged with arson. The allegation the “jury nullification” defense in an appro- L.Ed.2d 178 (2020). and its inextricable connection to the “pre- was that while Asaro was driving around priate case. 16. See generally People v. Taylor, 9 N.Y.3d 129 (2006). sumption of innocence.” Historically, juries the neighborhood (Howard Beach), another had the dual responsibility of determining motorist cut him off, which led to a verbal punishment as well as guilt or innocence. And altercation at a traffic light. Asaro wrote COMMITTEE REPORTS the punishment for most crimes during the down the license plate number of his antago- common law era was the death penalty. Thus, nist and had someone torch the motorist’s car District Court A joint meeting of the Workers’ an acquittal could arise from a finding of in the middle of the night. Meeting Date: 10/16/2020 Compensation Law and Plaintiff’s factual innocence, or simply because the jury The government “lucked out” (if you Co-Chairs: S. Robert Kroll and Personal Injury Law Committees did not want to punish the offender based believe in luck) when the EDNY Court Clerk Roberta D. Scoll was held on October 20, 2020. The on the peculiarities of the case. What the spun the wheel and picked the same judge meeting featured a CLE presen- A District Court Committee law requires and justice desires may diverge; who presided at Asaro’s 2015 RICO trial to tation on the pitfalls and special meeting was held on October 16, but we should not tolerate when they are an handle his 2017 automobile arson charge. concerns that plaintiff’s personal 2020 with 38 Members in atten- ocean’s breadth apart. Asaro ultimately pled guilty to the arson. His injury attorneys need to be aware dance. The discussion was centered Beck recognized and embraced “jury nulli- Sentencing Guidelines range was 33 to 41 of so as not to jeopardize, even on the comfort level of returning fication” as part of the common law tradition. months. However, the court sentenced Asaro inadvertently, the rights of their to District Court and took a turn Blackstone and many of his contemporaries to 96 months—almost three times above the clients who also have a workers’ towards the question of electron- were “natural law” theorists who believed in Guidelines recommendation—based on the compensation claim. The speakers ically filing documents in District the superiority of Justice (reflecting eternal judge’s personal belief that the jury at the Michael J. Langer were Adam L. Rosen of Polsky, Court, the procedures, and why ethical values) over manmade Law.5 The 2015 RICO trial got it wrong, and that Asaro Shouldice and Rosen, P.C., and landlord-tenant cases cannot be United States Supreme Court’s rationale for was guilty of the forty-years old Lufthansa Brian P. O’Keefe and Robert Grey “retroactivity” was once predicated on natu- heist and the fifty-years old murder of Paul started by filing electronically like of Grey & Grey, LLC. Many attend- ral law notions of immutable first principles, Katz. NYC. Judge Muscarella was on the Zoom call ees at the Zoom session wish that they could i.e., that judges merely discover the eternal On appeal, Asaro challenged the contin- as well and was proactive in answering many stop “meeting” like this. of the participants questions as well as offering ethical rules that inform the values-choices ued vitality of Watts in light of interven- The Committee Reports column is compiled that underlie judicial decision-making.6 ing Supreme Court precedents. Watts was suggestions on how to file documents. by Michael J. Langer, a partner in the Law Inconsistent verdicts are generally upheld a 5-4 per curium decision, decided based Worker’s Compensation Law and Offices of Michael J. Langer, P.C. Mr. Langer is a former law clerk in the United States because of the “unreviewable power of a jury on the Certiorari Petition and Opposition, Plaintiff’s Personal Injury Law to return a verdict of not guilty for imper- i.e., without full briefing or oral argument. Court of Appeals for the Second Circuit, and 7 Meeting Date: 10/20/20 a former Deputy County Attorney in the Office missible reasons.” As a corollary, the law has The only issue raised in Watts was double of the Nassau County Attorney. Mr. Langer’s 11 long regarded equitable rights as superior to jeopardy. While the precedential vitality of Chair, Workers’ Compensation Law: Adam practice focuses on matrimonial and family legal rights; indeed, equitable principles are summary decisions is supposed to be limited L. Rosen law, estate and commercial litigation, and the impetus underlying the constitutional to the precise issue presented and decid- Chair, Plaintiff’s Personal Injury: Ira S. Slavit criminal defense. 10 November 2020 Nassau Lawyer PROGRAMPROGRAM CALENDARCALENDAR Pre-registration is REQUIRED for all Academy programs. Go to nassaubar.org and click on CALENDAR OF EVENTS to register. CLE material, forms, and zoom link will be sent to pre-registered attendees 24 hours before program. All programs will be offered via ZOOM unless otherwise noted.

NOVEMBER 5 NOVEMBER 16 Battle for Blessed Fulton Sheen’s Body: A Discussion of the Matter Cold Noses and Warm Hearts: Laws that Protect You and Your Pets of Cunningham v. Trustees of St. Patrick’s Cathedral 5:30—8:30PM via ZOOM With the Catholic Lawyers’ Guild 3 credits in professional practice 6:00—7:00PM via ZOOM **Program is open to the general public. Must pre-register. 1 credit in professional practice Skills credits are also available for newly admitted attorneys

NOVEMBER 6 NOVEMBER 17 Dean’s Hour: Social Media Ethics Issues Business of Law Lecture Series Presents: Program sponsored by NCBA Corporate Partner Champion Office Dean’s Hour: Marketing Your Practice in the Time of COVID Suites Program sponsored by NCBA Corporate Partner Champion 12:30—1:30PM via ZOOM Office Suites 1 credit in ethics 12:30—1:30PM via ZOOM 1 credit in professional practice NOVEMBER 9 Skills credits are also available for newly admitted attorneys United States Supreme Court: Where Pop Art, Culture and Law Meet **Zoom networking precedes program from 12:00—12:30PM** 5:15—7:00PM via ZOOM 1 credit in diversity, inclusion and elimination of bias; 1 credit in professional practice DECEMBER 2 Dean’s Hour: FDR and the Courts—The Ambiguous Legal NOVEMBER 10 Legacy of Franklin Delano Roosevelt Dean’s Hour: Settlement of Discrimination Cases—Tax Program sponsored by NCBA Corporate Partner Champion Office Suites Considerations 12:30—1:30PM via ZOOM Program sponsored by NCBA Corporate Partner Champion Office 1 credit in professional practice Suites 11:00AM—12:00PM via ZOOM DECEMBER 2 1 credit in professional practice Why Civility in the Practice of Law Matters: A Focus on Skills credits are also available for newly admitted attorneys Personal Injury Law 5:30—7:30PM via ZOOM Please allow 10-14 business days for NOVEMBER 12 2 credits in ethics Dean’s Hour: Mission Continues—Nassau County Veteran’s receipt of CLE credit from the Academy Treatment Court Program sponsored by NCBA Corporate Partner Champion Office due to high volume of programming. Suites 12:00—1:00PM via ZOOM Please submit all CLE forms 1 credit in professional practice Skills credits are also available for newly admitted attorneys to [email protected] for credit.

NOVEMBER 13 Thank you. We look forward to Dean’s Hour: What Happens to Your Debt When You Die? "seeing" you soon. Program sponsored by NCBA Corporate Partner Champion Office Suites —Jen and Patti 12:15—1:15PM via ZOOM 1 credit in professional practice Skills credits are also available for newly admitted attorneys Nassau Lawyer November 2020 11 PROGRAMPROGRAM CALENDARCALENDAR Pre-registration is REQUIRED for all Academy programs. Go to nassaubar.org and click on CALENDAR OF EVENTS to register. CLE material, forms, and zoom link will be sent to pre-registered attendees 24 hours before program. All programs will be offered via ZOOM unless otherwise noted.

NOVEMBER 5 NOVEMBER 16 Battle for Blessed Fulton Sheen’s Body: A Discussion of the Matter Cold Noses and Warm Hearts: Laws that Protect You and Your Pets of Cunningham v. Trustees of St. Patrick’s Cathedral 5:30—8:30PM via ZOOM With the Catholic Lawyers’ Guild 3 credits in professional practice 6:00—7:00PM via ZOOM **Program is open to the general public. Must pre-register. 1 credit in professional practice Skills credits are also available for newly admitted attorneys

NOVEMBER 6 NOVEMBER 17 Dean’s Hour: Social Media Ethics Issues Business of Law Lecture Series Presents: Program sponsored by NCBA Corporate Partner Champion Office Dean’s Hour: Marketing Your Practice in the Time of COVID Suites Program sponsored by NCBA Corporate Partner Champion 12:30—1:30PM via ZOOM Office Suites 1 credit in ethics 12:30—1:30PM via ZOOM 1 credit in professional practice NOVEMBER 9 Skills credits are also available for newly admitted attorneys United States Supreme Court: Where Pop Art, Culture and Law Meet **Zoom networking precedes program from 12:00—12:30PM** 5:15—7:00PM via ZOOM 1 credit in diversity, inclusion and elimination of bias; 1 credit in professional practice DECEMBER 2 Dean’s Hour: FDR and the Courts—The Ambiguous Legal NOVEMBER 10 Legacy of Franklin Delano Roosevelt Dean’s Hour: Settlement of Discrimination Cases—Tax Program sponsored by NCBA Corporate Partner Champion Office Suites Considerations 12:30—1:30PM via ZOOM Program sponsored by NCBA Corporate Partner Champion Office 1 credit in professional practice Suites 11:00AM—12:00PM via ZOOM DECEMBER 2 1 credit in professional practice Why Civility in the Practice of Law Matters: A Focus on Skills credits are also available for newly admitted attorneys Personal Injury Law 5:30—7:30PM via ZOOM Please allow 10-14 business days for NOVEMBER 12 2 credits in ethics Dean’s Hour: Mission Continues—Nassau County Veteran’s receipt of CLE credit from the Academy Treatment Court Program sponsored by NCBA Corporate Partner Champion Office due to high volume of programming. Suites 12:00—1:00PM via ZOOM Please submit all CLE forms 1 credit in professional practice Skills credits are also available for newly admitted attorneys to [email protected] for credit.

NOVEMBER 13 Thank you. We look forward to Dean’s Hour: What Happens to Your Debt When You Die? "seeing" you soon. Program sponsored by NCBA Corporate Partner Champion Office Suites —Jen and Patti 12:15—1:15PM via ZOOM 1 credit in professional practice Skills credits are also available for newly admitted attorneys 12 November 2020 Nassau Lawyer Criminal Law U.S. Department of Education Issues New Rules Protecting Due Process Rights in Student Disciplinary Hearings

In 2011, without much notice or public she was subjected to off-campus Investigations schools use the lower preponderance of the comment, the due process rights of students sexual misconduct, Title IX does evidence standard that is traditionally used When a complaint is filed, the accused of sexual misconduct were severely not require the school to impose to resolve civil disputes. school must send written notice of curtailed at the nation’s colleges and uni- discipline for conduct that was Required procedures for disciplinary the allegations to both the accuser versities. Educational institutions did so out not part of the school’s education hearings involving Title IX charges are and the accused. The school must of fear of losing federal funding for actually program. Whether the school designed to respect an accused student’s then gather evidence in an investi- affording students a fair hearing. In case after chooses to adopt these rules gov- constitutional right to due process.15 Those gation. Neither the accuser nor the case, colleges and universities assumed that erning student’s behavior outside procedures include: accused is required to conduct an accusations were true without providing a of the educational program is up • Written notice of the allegations in investigation, but the school may meaningful opportunity for the accused to to the school, but schools are not advance of the hearing not interfere with the accused’s present a defense. required to do so under Title IX. • The right to select an advisor of the stu- Scott J. Limmer opportunity to conduct an inde- This denial of due process came in dent’s choice, who may be an attorney pendent investigation. For exam- response to the Department of Education’s Complaints • A “live” hearing rather than a decision ple, the school cannot impose a 2011 Dear Colleague Letter which threatened based on a review of documents Schools must designate a Title IX “gag order” that prevents the accused from to withhold federal funding from educa- Coordinator to receive reports about con- • The opportunity to present evidence tional institutions that applied traditional discussing the accusations with potential wit- duct that would violate Title IX. The reports 10 • The opportunity for the accused’s advisor procedural safeguards.1 In the years that nesses. need not be made by the alleged victim. The to cross-examine the accuser followed its 2011 Dear Colleague Letter, the The school’s investigators, like the Title Title IX Coordinator must be neutral, not an • A written decision that explains the deci- Department of Education experienced signif- IX Coordinator, must be neutral. The inves- advocate who sides with either the accuser or sionmaker’s conclusions icant pushback from law professors, parents, tigation must be objective and cannot favor the accused.6 civil libertarians, educators, politicians, and either the accuser or the accused because of In addition, the new rules require that the The Coordinator must respond whenever the courts.2 preconceived notions that sexual misconduct decisionmaker cannot also be the investiga- An escalating pattern of due process vio- the school learns of a potential Title IX viola- accusations are usually true or usually false. tor. The common practice of having an inves- lations has motivated various courts to aban- tion. That response must include a confiden- The school cannot prevent the accused tigator decide guilt—a practice that predeter- don their prior deferential attitude toward tial conversation with the alleged victim that from being represented by an attorney. If the mined guilt, since the investigator typically outlines the supportive measure the school accused hires an attorney, all documents that acted as an advocate for the accuser—must student disciplinary proceedings. Federal 7 judges, aghast at the blatant bias against can provide. The school is not required must be provided to the accused must also be replaced with a system that assures the 11 accused students that characterized these to decide whether the accusations are true be provided to the accused’s attorney. The decisionmaker be free from bias and neutral. disciplinary hearings, began overturning sus- before offering such supportive measures. accused has the right to submit evidence to pensions and expulsions when schools failed Supportive measures are non-puni- investigators throughout the investigation. Change of Emphasis to respect due process rights. tive actions that would permit the accuser Whether the accused should do so is a strate- The approach that the Department initiat- The Department of Education then to receive the full benefit of an education gic decision. Students will likely benefit from 8 ed in 2011 made schools fear that they would reversed course in 2017, but only recently without unduly burdening the accused. legal advice in these circumstances. lose federal funding if they did not accept has it announced new rules that schools must Supportive measures might include coun- Documents resulting from the school’s every accusation as true and expel or suspend follow as a condition for accepting federal seling or a change of class schedule that investigation must be furnished to the accused the accused, whether or not the evidence was funding.3 These new rules are a victory for would allow the accuser to avoid the accused. and their attorney at least ten days before a dis- credible. This new approach makes clear that 12 all students, who are now entitled to a fair Disciplinary proceedings against the accused ciplinary hearing. Those documents include schools may now face a loss of funding if hearing when they are accused of sexual mis- are not regarded as supportive measures. investigative interviews, witness statements, they fail to provide supportive services to stu- conduct on campus. Discipline may only follow the filing of a for- and other evidence (photographs and police dents who report sexual harassment or sexual mal complaint, a neutral investigation of the reports). The school must also provide an assault. The new emphasis is on helping stu- New Rules facts, and a fair hearing. investigative report that fairly summarizes the dents who feel they are victims while at the The Department’s new rules address The Coordinator must give the accuser evidence. This requirement is meant to change same time assuring that accused students are sex discrimination, sexual harassment of an opportunity to make a formal com- the practice of slanting evidence to favor the given a fair hearing. employees, and other acts that do not neces- plaint. No disciplinary action may be pur- accuser while concealing any evidence that In addition, the rules make clear that the sarily give rise to student discipline.4 As the sued against the accused in the absence of might cast doubt on the accusations. 9 Department will not second-guess a school’s rules affect complaints of sexual misconduct a formal complaint. A complaint may only A school may choose to discontinue an disciplinary decisions unless the school’s by one student against another, the rules add be filed if the accuser is still participating investigation if the accuser wishes to with- approach to an accusation is clearly unrea- several important safeguards to protect the or attempting to participate in the educa- draw the complaint. Schools typically regard- sonable. A disciplinary process that respects due process rights of accused students. tion program. ed the 2011 Dear Colleague Letter as requir- the due process rights of accused students The Coordinator must consider the accus- ing them to proceed with an investigation should be regarded as reasonable, even if Jurisdiction er’s wishes and should generally respect the and disciplinary proceeding whether or not 13 accusers or their advocates disagree with the Some schools have disciplined students accuser’s desire not to make a formal com- the accuser wanted to continue. result of a given hearing. for off-campus acts that are best addressed plaint. However, the Coordinator is autho- rized to file a formal complaint on behalf of Hearings Scott J. Limmer concentrates his practice in by the criminal justice system. The new rules the areas of criminal defense and college dis- state that Title IX is implicated only if the act the school against the accuser’s wishes unless The new rules prohibit the school from cipline defense. He is also the co-host of the occurred as part of the school’s education filing the complaint and initiating an investi- restricting a student’s constitutional rights podcast “Reboot Your Law Practice.” Scott program. To be so considered, the conduct gation would clearly be unreasonable. during a hearing. For example, it cannot can be reached at [email protected]. must generally occur on campus or on prop- The Department’s 2011 Dear Colleague require an accused student to surrender the erty over which the school exercises sub- Letter was widely perceived as prohibiting right to remain silent. The new rules express- 1. U.S. Dep’t of Educ., Dear Colleague Letter (Apr. 4, 2011),. https://bit.ly/30QLIIm stantial control. Also included are buildings informal resolutions of sexual misconduct ly require the school to presume the inno- 2. Colleges push back against Title IX guidelines on inves- controlled by a student organization that the allegations. The new rules allow students cence of the accused. This represents a sig- tigating sex abuse, TribLive, Sept. 14, 2016, / https://bit. school has recognized (such as a fraternity or to agree upon a non-adversarial approach, nificant change from earlier procedures that ly/33HzELc; Law Professors’ Open Letter Regarding sorority house), or during a school activity such as mediation, to arrive at an outcome tacitly encouraged schools to assume that all Campus Free Speech and Sexual Assault (May 16, 2016), (such as a field trip) if the school had control that will resolve the allegations without dis- accusations of sexual misconduct are true. https://bit.ly/36MHHs2 5 3. U.S. Dep’t of Educ., Dear Colleague Letter (Sept. 22, over the accused individual at the time. ciplinary proceedings. That change permits The new rules also allow schools to use a 2017),. https://bit.ly/3deBlD2 While a school can provide supportive accusers to avoid formal proceedings which “clear and convincing evidence” standard of 4. U.S. Dep’t of Educ., Title IX: U.S. Dep’t of Educ. measures to a student who alleges that they may not wish to participate in. proof.14 The former guidance demanded that Title IX Final Rule Overview (May 6, 2020), https://bit. ly/33H9yIh 5. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 86 Fed. Reg. 30026, 30094 (May 19, 2020) Subscribe today (codified at 34 C.F.R. §§ 106). 6. Id. at 30112. 7. Id. at 30113. 8. Id. at 30308. 9. Id. at 30245. 10. Id. at 30295. 11. Id. at 30298. 12. Id. at 30306. 13. Id. at 30290. 14. Id.,at 30373–74 15. U.S. Dep’t of Educ., Title IX Final Rule Overview. Nassau Lawyer November 2020 13 Criminal Law Virtual Testimony in Criminal Trials The COVID-19 pandemic has fundamen- permitted the use of virtual testi- duct virtual court proceedings in hardship on the witness and because the tally altered the operations of courts across mony at trial for child victims and New York. These applications can court found that Skype was sufficiently “reli- the state and the country. Courts have heav- expert witnesses.13 quickly be downloaded onto com- able, accurate, and widely used.”24 ily relied upon virtual proceedings in lieu In addition, in United States v. puters, phones, and other devices of in-person proceedings to facilitate the Gigante, the Second Circuit upheld at little to no cost. To testify virtu- Benefits of Virtual Testimony essential functions of the criminal justice the trial court’s use of two-way ally, all a witness needs is internet During a Pandemic system while protecting public health and closed-circuit television to permit a access and a phone or comput- There are substantial benefits to the use safety. Courts across the state are now deal- terminally ill witness in the Federal er with video-conferencing soft- of virtual testimony during a pandemic. The ing with the challenges of conducting trials Witness Protection Program to tes- ware. All the courtroom needs is COVID-19 pandemic requires that persons, without jeopardizing the health and safety tify from a remote location.14 The internet access, a computer with including witnesses, cover or shield at least of judges, jurors, attorneys, court staff, court Second Circuit held that it was the same video-conferencing soft- part of their face using a clear plastic face officers, corrections officers, police officers, appropriate to allow the witness Christopher M. ware, and a screen or screens that shield or cloth face mask. In addition, court- defendants, and witnesses. These challenges to testify remotely for two reasons. Casa can clearly project the witness and rooms will likely erect plexiglass dividers are significant. First, the witness’s poor health ren- their testimony to the trial participants. and barriers to prevent the transmission Fortunately, the use of virtual testimony, dered him unable to come to court.15 Second, of the virus from one person to another in when necessary and required by exceptional the procedure used to receive the remote tes- The taking of virtual testimony using the courtroom. None of these safeguards is circumstances, can protect the health of all timony preserved the central characteristics of such video-conferencing software would necessary for a witness who testifies virtually. of the participants in a trial, preserve the the face-to-face confrontation that would have afford defendants the same opportunities Accordingly, all of the participants in a trial integrity of the proceedings, and safeguard occurred had the witness testified in person, to cross-examine witnesses as they would if will have a better opportunity to observe the rights of the accused. and therefore the defendant’s Confrontation the witnesses were present in the courtroom. and hear a witness who testifies virtually and Clause rights were sufficiently protected.16 The prosecutor would ask questions of the is displayed on a screen than they would a Courts Have Permitted Virtual Specifically, the witness was sworn, was sub- witness and the witness would answer those witness who is in-person but shielded by any Testimony Before COVID-19 jected to a full and complete cross-examina- questions. The defense attorney would then number of barriers and coverings. tion, and testified in full view of the jury, the ask questions of the witness and the witness This use of virtual testimony at a criminal The use of virtual testimony will allow court, and the accused.17 would answer those questions. The defen- trial is not a novel concept. There is prece- witnesses to testify even if they are unable to The requirements for taking virtual testi- dant, the judge, the attorneys, and the jurors dent for taking virtual testimony via two-way come to court. A witness cannot even enter a mony established in Wrotten are consistent would all have the opportunity to see, hear, television or remote video-conferencing in courthouse if that witness recently tested posi- with the requirements articulated by the and evaluate the witness. All of this would lieu of in-person testimony at criminal trials. tive for COVID-19, recently experienced symp- United States Supreme Court in Craig and by The United States Supreme Court paved transpire just as it would if the witness was toms of COVID-19, recently came into contact the Second Circuit in Gigante.18 Accordingly, the way for the use of virtual testimony in physically present in the courtroom. with a person who has recently tested positive criminal trials back in 1990. In Maryland compliance with Wrotten ensures that the use The use of video-conferencing software of virtual testimony at a criminal trial does for or experienced symptoms of COVID-19, v. Craig, the Supreme Court held that a to admit virtual testimony into evidence at or recently travelled to or from one of an Maryland statute that permitted the use of not violate a defendant’s right to a fair trial, a criminal trial is not without precedent. In even if the defendant objects. ever-changing list of restricted states and coun- one-way closed-circuit television to take tes- People v. Novak, the trial court, applying the tries.25 If any of these conditions are present for timony from children allegedly abused by The Wrotten Two-Prong Test Wrotten test, permitted a witness to testify a witness then that witness is unable to testify the defendant did not violate the defendant’s virtually via Skype video-conferencing soft- in-person but might be able to testify virtually. rights under the Confrontation Clause.1 In The Wrotten Court established a two- ware because requiring the witness to appear reaching its holding, the Court reasoned that prong test for the use of virtual testimony in in person would have imposed a substantial See TESTIMONY, Page 19 the Confrontation Clause does not guarantee a criminal trial. First, since virtual testimony criminal defendants the absolute right to face is “an exceptional procedure to be used only their accusers in-person in the courtroom.2 in exceptional circumstances,” there must In People v. Wrotten, the New York Court be a “case-specific finding of necessity.”19 of Appeals upheld a trial court’s decision to Second, the virtual testimony must be taken permit a witness for the prosecution to testi- in a way that ensures its reliability and does fy at trial via live two-way television from a not violate the Confrontation Clauses of the Tax Defense & Litigation remote location.3 Although there is no statute Constitutions of the United States or of New that expressly authorizes the use of virtual York State. 20 testimony, the Court of Appeals reasoned that To establish that the use of virtual testimo- Judiciary Law § 2-b(3) empowers courts to use ny is necessary in a particular case, the court innovative procedures, including permitting must find that the witness’s testimony would witnesses to testify virtually, when necessary.4 be material and that it would be impossi- In upholding the use of virtual testimony, the ble for the witness to testify in-person. In Court of Appeals held that “the public policy Wrotten, the Court found that the prosecu- of justly resolving criminal cases while at the tion’s expert witness satisfied this standard same time protecting the well-being of a wit- because he was “85 years old, frail, unsteady ness can require live two-way video testimony on his feet, and had a history of coronary in the rare case where a key witness cannot disease [such that he] could not travel to New physically travel to court in New York and York without endangering his health, and where…defendant’s confrontation rights have was therefore unavailable.”21 In Giurdanella, been minimally impaired.”5 the court found that the victim satisfied this New York courts have relied upon Wrotten standard because a foreign government was when permitting witnesses to testify virtually. preventing him from returning to the United For example, in People v. Beltran, the Second States.22 Accordingly, this prong of the test Department upheld the trial court’s decision can be satisfied if the trial court makes a to allow a vulnerable child victim to testify via finding that a witness’s testimony is material Harold C. Seligman has been a member of the 6 two-way closed-circuit television. In addition, and the witness is physically unable to come United States Tax Court since 1987. in People v. Giurdanella, the First Department to court or cannot come to court without upheld the trial court’s decision to allow the significantly endangering his health. He has represented individual and corporate clients victim to testify virtually where the victim was To ensure the reliability of virtual testi- in hundreds of tax cases, both large and small, unavailable to testify at trial because he had mony and not run afoul of the Confrontation travelled to Egypt and was prevented by the Clauses, witness testimony must meet the over the past 30 years against the IRS and New York Egyptian government from returning to the following qualifications: (1) the testimony State Department of Taxation and Finance. United States.7 Moreover, in State v. Robert must be live, (2) the testimony must be given F., the Court of Appeals affirmed its holding under oath, (3) the witness must be subjected in Wrotten that courts have the discretion to contemporaneous cross-examination, and to use virtual testimony, but reiterated that (4) the witness must be displayed in such a Long Tuminello, LLP courts must first make a specific finding of manner that the judge, jury, attorneys, and necessity, because taking virtual testimony is defendant can clearly see and hear the wit- 120 Fourth Avenue “an exceptional procedure to be used only in ness and have the opportunity to assess the Bay Shore, New York 11706 exceptional circumstances.”8 credibility of that witness.23 (631) 666-2500 Courts around the country have permitted Video-conferencing technology can easily witnesses to testify remotely. As the Wrotten facilitate the taking of virtual testimony in a court noted, Wyoming,9 Minnesota,10 and way that satisfies all of these requirements. www.longtuminellolaw.com Florida,11 have all permitted witnesses to tes- Video-conferencing applications—such tify virtually or remotely.12 Moreover, courts as Zoom, Skype, or Microsoft Teams—are in New Jersey, California, and Florida have commonplace and are already used to con- 14 November 2020 Nassau Lawyer Criminal Law The Lawyer as Comic Book Crime Fighter “I love Daredevil! You know he went to The response was overwhelmingly There, court room scenes are por- he takes a terrific mauling. At the same time, Columbia Law School! First of all, he has a positive as blind people enjoyed trayed with realistic detail and the Matt is consumed by Catholic-inspired guilt very good-looking girlfriend, Elektra—and having the stories read to them program takes its representation of over his own propensity for violence. He also he’s a man without fear. He doesn’t have many and were “pleased to have a super- the bar rather seriously. assumes the guise of the devil. The arc of the powers either—but he has a kind of courage to hero who was sightless.”3 Cox portrays the character as series is rife with religious symbolism. expose what’s wrong and keep fighting against Lee had Matt defend in court a man of integrity, with an exten- He nevertheless stands in stark contrast the odds and somehow that appealed to me. many of the criminals that sive knowledge of the law. Cox to his arch foil, Wilson Fisk, aka Kingpin You know it’s one thing if you’re Superman, Daredevil apprehended the night is perfectly cast as a young, ide- (Vincent D’Onofrio) or the even more mani- and you’re not afraid of getting shot. Daredevil before.4 The sixties were the hey- alistic lawyer dedicated to rep- acal vigilante Frank Castle/The Punisher (Jon got beat up every single comic book, but he day of the Warren Court, with its resenting those on the margins Bernthal). Neither of these characters has any limped home with a victory.” emphasis on protecting the rights of society. Inspired by Thurgood grounding in faith, finding direction in their —Professor Tim Wu, Columbia Law School of the accused. The need to recon- Rudy Carmenaty Marshall, the actor’s depiction of own worldly obsessions. cile the character’s dual nature— Matt Murdock can well serve as Fisk is motivated by his unquenchable Within the realm of the Marvel Universe, the lawyer working responsibly a role model for aspiring lawyers thirst for power and haunted by his abusive no lawyer is more highly regarded or in within the legal system and the vigilante who envision a career in the public interest. childhood. Castle is spurred on by a compul- greater demand than Matt Murdock, aka working outside the law—has been ever con- Matt and his partner Foggy (Elden sion for vengeance after his family was killed Daredevil—the Man without Fear. Ranked stant.5 Hansen) passed on an offer from a pres- following his return from military service. the #1 Lawyer in Comics in the ABA Journal, The comic took a quantum leap forward tigious, white-shoe Manhattan law firm. Ultimately, Daredevil will bring Fisk to justice Murdock is “the go-to lawyer for the whole when Frank Miller became associated with Instead they devote their efforts to repre- for his crimes in Season Three while in Season stable of Marvel characters—from Spider- the title in 1979.6 Miller’s contributions to senting the downtrodden: criminals accused Two Matt serves as Castle’s defense counsel. Man to the Hulk.”1 the Daredevil saga are incalculable. During of assorted crimes, struggling immigrants, Matt is compelled to “use his gifts to Created by Stan Lee and Bill Everett in the early Eighties, he refashioned the charac- and tenants who are being driven from their protect the city when the law fails them, but 14 1964,2 Daredevil explores themes that tran- ter’s backstory and crafted gripping neo-noir rent-stabilized apartments in Hell’s Kitchen. he does not feel above the laws of God.” scend traditional comic book fare. The char- stories that explored themes of violence and Theirs is a rather ecumenical law practice. The Fifth Commandment—“Thou shall not acter is an enigmatic and engagingly com- retribution. His setting was the dark urban One of their first clients is Karen Page (Deborah Kill”—is at the heart of Matt/Daredevil’s plex distillation of the American lawyer. A landscape of pre-Giuliani New York. Ann Woll), a young woman framed for murder moral dilemma. Murder is for him perpetu- superhero in tights by night, Murdoch is a Miller’s inspired storytelling and his who subsequently joins the office as a paralegal. ally a bridge too far. Matt’s abiding Catholic button-down, practicing attorney by day. graphic artwork were both “cinematic and The firm of Nelson & Murdock is an oasis of faith prevents him from going to the murder- 7 Operating a two-lawyer firm in Hell’s atmospheric.” Miller transformed Daredevil high-mindedness in service to those who are ous lengths that either his adversaries or his Kitchen with his Columbia Law School class- from essentially a second-tier “Spiderman” to genuinely underserved. compatriots routinely undertake without a mate Foggy Nelson, Matt represents work- a cultural icon with his own devoted follow- The product of considerable study, Cox’s moment’s hesitation. ing-class New Yorkers in the city’s court ing. His most indelible contribution was the characterization of Matt’s blindness is sincere Miller’s tales from the 1980’s may have rooms. Bound by legal strictures during busi- creation of Elektra Natchios, Matt’s deadly and accurate. The actor is also sensitive when provided the source material for the series, ness hours, Matt assumes the mantle of con- nemesis and a former lover, who became a conveying the character’s other now-en- but it is the acting, writing, direction, and flicted vigilante when he dons his red mask. fan phenomenon in her own right. hanced senses, so the audience is confronted production values that bring the show vividly The inherent tension between the letter of Most telling of all, Miller never lost sight with a character who is both handicapped yet to life. Unfortunately, Marvel’s Daredevil was the law and attaining justice is at the heart of of the fact that Matt/Daredevil was a lawyer extraordinary at the very same time. cancelled in 2018, but the episodes are still the comic. blessed with a keen legal mind. In the char- Cox as Daredevil operates in a nefari- available on Netflix. They are well worth Unlike Superman with his x-ray vision, acter’s own words: ous world of sin and violence, wherein his watching, serving as both an exciting legal Daredevil is distinguished from his fel- “We are only human ... We can be convictions as an attorney are continuously drama and a gritty tale of super heroics. low superheroes by virtue of being blind. weak. We can be evil. The only way challenged by harsh inequities. The program Matt/Daredevil is obviously a fictional Ironically, he was blinded by saving the life of to stop us from killing each other is to offers a haunting portrait of a man at odds character, a figment of pop culture. Yet in a sightless man who was about to be struck make rules, laws. And to stick to them. with himself, as Daredevil tends to meet out countless ways, human beings are shaped by They don’t always work. But mostly, in an alley a truer measure of justice than that both fact and fiction, reality and inspiration. by an oncoming truck. The resulting acci- 8 dent saw radioactive waste spilled over Matt, they do. And they’re all we got.” which Matt is often able to achieve before The law finds itself in expected as well as unexpected places, from statutes to scripture, robbing him of his vision. But as this window Miller’s Daredevil was a revelation, her- a judge. After all, he is the “Devil of Hell’s from codes to comics. closed, quite literally another opened. alding a new direction in the world of com- Kitchen.” Myths, religious traditions, and the laws For the incident hyper-accentuated ics. It would also prove to be a harbinger of Adding further texture to Cox’s perfor- society enacts all play their part in fashion- his other senses. His newfound capabili- things to come as Miller’s conception provid- mance, Matt is a Roman Catholic. Not only ing our perceptions of the law. For more ties more than augment his loss of sight. ed the paradigm for all subsequent depictions are the character’s professional ideals tested, than half-a-century, Daredevil has been a He now possesses an innate extra-sen- of the character in print and on film. but so are the dictates of his conscience. By tantalizing character on the periphery of the sory radar and such acute hearing that In 2015, Daredevil came to television any measure, the Catholicism of Marvel’s legal profession. Thanks to Stan Lee, Frank he can gauge the beating of the human on the streaming service Netflix.9 Starring Daredevil is “gritty, complex and heroic” as Miller, Charlie Cox, and others, the character heart, a skill which functions much like an British actor Charlie Cox, Marvel’s Daredevil “Daredevil demonstrates what a real Catholic will continue to fascinate readers, entertain ingrained polygraph machine. spanned three seasons consisting of thir- does in the face of adversity. He fights, he 10 audiences, and maybe even encourage an Beyond these attributes, Daredevil has no ty-nine episodes in total. The show is dark, struggles, and he fights some more.” appreciation for the law. discernable superpowers other than his acro- the characters are three-dimensional, and the Taking its cue from Miller’s interpretation batic skill and athletic prowess. His walking depictions of violence realistically harrowing. of the character from the1980’s, the religious Rudy Carmenaty serves as a Bureau cane contains a grappling hook which he uses This series is a far cry from the camp Batman dimension of Matt’s nature is one of the Chief in the Office of the Nassau County program’s most provocative facets. Daredevil Attorney, is the Director of Legal Services to scale city buildings. He is also very good tv-show made popular in the 1960’s. for the Nassau County Department of with his fists. But like many lawyers, he is all Though this may sound outlandish at stands at the crossroads between right and wrong, guilt and absolution. As Frank Miller Social Services, and the Language Access too human. first blush, the series is one of the most Coordinator for the Nassau County himself observed: “I figured Daredevil must Co-creator Stan Lee was initially con- thought-provoking, adult depictions of the Executive. He is also Vice-Chair of the be Catholic because only a Catholic could be cerned about the public reaction to his char- legal profession ever presented on the small NCBA Publications Committee. both an attorney and a vigilante.”11 acter’s disability, particularly those who are screen. For Marvel’s Daredevil is as much a In one episode, Matt unburdens himself 1. Jesse Thompson, “Zoinks! There’s a Lawyer Wearing themselves blind. He needn’t have worried. legal/crime drama, as it is a costume epic. in the confessional. He tells his confessor Spandex!”, Nov. 11, 2011 at https://www.abajournal.com. 2. The character first appeared in Daredevil (Apr. 1964). Father Lantom (Peter McRobbie), “I’m not 3. Roy Thomas, “Stan Lee’s Amazing Marvel Interview”, seeking forgiveness for what I’ve done, Father. Alter Ego #104 (Aug. 2011). I’m asking forgiveness for what I’m about to 4. Peter Sanderson, Marvel Universe, (1st ed. 1996) at 182. d o.” 12 To truly appreciate this, one needs to 5. Id. 6. Gina Misiroglu with David A. Roach, The Superhero understand the Irish Catholic milieu Matt Book, (1st ed. 2004)at 162. was raised in and which forms the core of 7. Id. his identity. 8. Sanderson, supra at 188. Matt was raised by his boxer father—a 9. In 2003, the character was transferred to the movie pug-fighter named Battlin’ Jack Murdock. screen in the film Daredevil starring Ben Affleck and Jennifer Garner; it was written and directed by Mark His father was murdered for double-crossing Steven Johnson. the mob and winning a fight he was paid to 10. Bradley J. Birzer, “The Brilliant and Profoundly throw. Just as he became a lawyer to fulfill Catholic Daredevil”, Dec. 11, 2018 at www.theamerican- his working-class father’s ambitions, Matt conservativve.com. 11. Brian Cronin, “Comic Legends: When Did We Learn sacrifices his body each night battling evil as Daredevil was Catholic?”, Jan. 25, 2019 at https://.cbr. a “way of dealing with the guilt he feels about com. the murder of his father.”13 12. Charles Moss, “Daredevil’s Greatest Superpower Is His As portrayed by Cox, Matt/Daredevil is a Catholicism”, Apr. 10, 2015 at www.slate.com. 13. Id. latter-day Saint Sebastian, the early Catholic 14. Meghan O’Keefe, “What Happened in Daredevil Marvel's Daredevil © Marvel Studios martyr traditionally depicted as being shot Season 1? Your Catch-Up Guide for Season 2”, May 17, from head to toe with arrows. Every night 20176 at https://dedider.com. Nassau Lawyer November 2020 15

In 2020, the House seems poised to pass to New York, both through sales taxes on 9. Luis Ferre-Sadurni and Jesse McKinley, “Tax the Hazy 2020 ... the Marijuana Opportunity Reinvestment the purchase of marijuana as well as income Ultrarich? Cuomo Resists, Even With a $14 Billion Budget Gap.” New York Times, Sept. 8, 2020, https://nyti. Continued From Page 6 and Expungement (MORE) Act, a more taxes based on the employment opportuni- ms/2GNPCuv aggressive attempt at marijuana reform. This ties created by a New York State green rush. 10. Id. impact. Illinois, like New York State, first bill would clearly and definitively de-crim- But now is the time for action by state elect- 11. The states deeming recreational use to be essential introduced the concept of cannabis legaliza- inalize cannabis and thus enable interstate ed officials. Depending on the outcome of are Alaska, Oregon, California, Nevada, Colorado, the 2020 elections, the federal government Alabama, Illinois, Washington, and Michigan. By late tion via medical marijuana when it enacted commerce and pave the way to a green rush. spring, Massachusetts, Vermont, Maine, and the District the Compassionate Use of Medical Cannabis The MORE Act is sponsored in the House could step up its efforts to legalize marijua- of Columbia allowed for the re-opening of cannabis 20 Pilot Program Act in 2013. In 2019, Illinois by New York Congressman Jerry Nadler na throughout the United States in 2021. businesses. became the first state to enact legalization and in the Senate by California Senator (and But while de-criminalizing marijuana would 12. Alicia Cohn, “ Marijuana Sales Surge Amid Coronavirus Outbreak.” The Hill, March 20, 2020, of adult-use marijuana via state legislation, now Democratic nominee for Vice President) have significant practical legal effects and 21 provide marijuana consumers and business- https://bit.ly/34K0phD as opposed to a state-wide ballot initiative. Kamala Harris. While the House is expect- 13. “Equity Programs,” Cannabis Control Commission, Within the first six months of its adult-use ed to pass the MORE Act sometime this fall, es streamlined regulations and protections, Commonwealth of Massachusetts, https://bit.ly/2FiPfaQ cannabis program, Illinois collected more than the bill is unlikely to move forward in the states lagging in the establishment of adult- 14. Id. $52 million in state tax revenue and provided Republican-controlled Senate in this hotly use programs may not reap the maximum 15. “Leafly Jobs Report: Cannabis is the fastest-grow- ing American industry, surpassing 240,000 jobs,” employment for more than 9,000 in the space, contested general election cycle. financial benefit. New York needs to see through the haze and recognize that now Businesswire, Feb. 7, 2020, https://bwnews.pr/2FelSpZ resulting in additional income and other The MORE Act specifically seeks to 16. Jesse McKinley and Luis Ferre-Sadurni, “Marijuana related tax revenue to Illinois’ coffers.17 Pre- remove marijuana from the list of scheduled may be the most opportune time to legalize Will be Legalized in 2020, Cuomo Vows.”, New York pandemic economic predictions suggested substances under the Controlled Substances adult-use marijuana for the benefit of the Times, Jan. 8, 2020, https://nyti.ms/3iIwB9V that the Illinois program may see employment Act and eliminates criminal penalties for an state, its businesses, and its residents. 17. “Gov. Pritzker Announces $52 Million in Adult-Use 18 Cannabis Tax Revenue in First Six Months of Industry,” gains by as much as 63,000 jobs by 2025. individual who manufactures, distributes, Elizabeth Kase is a Partner and Chair of Press Release, Illinois Dept. of Commerce & Economic 22 Other state-wide adult-use programs, such as or possesses marijuana. In the parlance of the Criminal Law Department and Co-Chair Opportunity, July 14, 2020, https://bit.ly/30KvsIT Massachusetts, saw slower financial returns, as marijuana law, this would be its own rev- of the Medical Marijuana Law Group at 18. “Illinois tripled weed jobs last year,” Crain’s Chicago Abrams, Fensterman, Fensterman, Eisman, Business, Feb. 7, 2020, https://bit.ly/36KAqcp compared to Colorado and California, though olution reckoning the bizarre landscape of Formato, Ferrara, Wolf & Carone, LLP. marijuana law as a controlled substance, ille- 19. H.R. 1595, 116th Cong. (1st Sess. 2019). the long-term outlook is extremely positive for 20. H.R. 3884, 116th Cong. (2nd Sess. 2020, https://bit. both increased job creation, tax revenue, and gal federally while states legalize its use. The 1. Christopher Klein, “Before FDR, Herbert Hoover Tried ly/30OQgis minority business opportunities. states’ adult-use programs have been operat- His Own ‘New Deal’”, History.com, Feb. 28, 2019, https:// 21. S2227, 116th Cong. (2nd Sess. 2020https://bit.ly/ ing with the tacit permission of the federal bit.ly/33LbrUm (noting that it was Democratic Vice 34JX9m8 Presidential candidate John Nance Garner who accused Will the Feds Beat government. But with clear delineation of a 22. In addition to de-scheduling marijuana from the Republican President Herbert Hoover of having econom- Controlled Substance Act, the MORE Act proposes New York to Legalize? re-classification of cannabis, it would be fed- ic policies that were “’leading the country down the path additional changes to our country’s approach towards of socialism.”) The House of Representatives has begun erally regulated, allowing for interstate trade. marijuana and its usage, as follows: Although the clearer lines of legality would 2. “The Employment Situation – August 2020,” Press • replacing statutory references to marijuana and mari- to take major steps towards legalizing canna- Release, United States Bureau of Labor Statistics, Sept. 4, huana with cannabis; assist attorneys, businesses, financial insti- 2020, USDL-20-1650, https://bit.ly/3lvq2JD bis. To address the extreme conflicts and legal • requiring the Bureau of Labor Statistics to regularly tutions, and consumers, the federalization of 3. “NYS Economy Added 244,200 Private Sector Jobs in uncertainty that govern the cannabis indus- publish demographic data on cannabis business own- July 2020,” Press Release, New York State Dept. of Labor, cannabis will greatly impact small-business ers and employees; try, the House passed the Secure and Fair Aug. 20, 2020, https://labor.ny.gov/stats/pressreleases/ job growth in states, such as New York, that • establishing a trust fund to support various programs Enforcement (SAFE) Banking Act of 2019 pruistat.shtm. last September.19 The SAFE Banking Act have not yet legalized adult use. Existing 4. “An Update to the Budget Outlook: 2020 to 2030,” and services for individuals and businesses in commu- state-run programs that successfully regulate Congressional Budget Office, Sept. 2, 2020, https://bit. nities impacted by the war on drugs; prohibits a federal banking regulator from • imposing a 5% tax on cannabis products and requiring and promote their own local/statewide busi- ly/3lyGU1Z penalizing a financial institution from pro- 5. Id; see also Jeff Stein, “U.S. government debt will nearly revenues to be deposited into the trust fund, viding banking services to legitimate mari- nesses could be priced out of the marketplace equal the size of the economy for first time since World • making Small Business Administration loans and juana-related businesses, though marijuana by larger conglomerates ready to create inter- War II, CBS says.”, Washington Post, Sept. 2, 2020. services available to entities that are cannabis-related state platforms. 6. Karen DeWitt, “2020 state legislative session winding legitimate businesses or service providers; remains federally illegal. The legislation was • prohibiting the denial of federal public benefits to a passed with over 300 votes and had signifi- down, with no budget deficit resolution in sight.” WBFO, Conclusion July 23, 2020, https://bit.ly/33KjWPK. person on the basis of certain cannabis-related con- cant bipartisan support. The House vote was 7. “DiNapoli: Local Sales Tax Collections Drop for duct or convictions; historic as it was the first time a stand-alone Winston Churchill once said “Never Second Quarter of 2020,” Press Release, Office of the • prohibiting the denial of benefits and protections bill that would legalize some aspect of mari- waste a good crisis”—advice that should New York State Comptroller, July 24, 2020, https://bit. under immigration laws on the basis of a cannabis-re- ly/3nJgGfo lated event (e.g., conduct or a conviction), and juana policy passed a house in Congress. The now be heeded by Governor Cuomo and 8. Bernadette Hogan and Aaron Feis, “Cuomo: NY faces • establishing a process to expunge convictions and SAFE Banking Act has yet to be considered New York State lawmakers. Legalization of school, hospital cuts without $61 billion in aid”, New conduct sentencing review hearings related to federal by the United States Senate. cannabis will bring in much-needed revenue York Post, May 12, 2020, https://bit.ly/3nAsWP2 cannabis offenses. See n.11, supra. National Pro Bono Week Means Another Successful (Virtual) Open House

Gale D. Berg education, and housing. Volunteer attorneys recorded an informational session on how public were satisfied with the outcome. One spoke one-on-one with residents to explain the court can help answer questions from the resident stated, “Thank you so much for orga- complicated legal issues and provide guidance, public who are not represented by an attorney nizing this. It was a pleasure to meet with this counsel, and referrals. “Given the protracted and need help, which has been added to the attorney and I am grateful for the opportunity. and serious consequences facing our com- NCBA website at www.nassaubar.org. They were tremendously comprehensive and munities by reason of a global pandemic and When asked, many NCBA volunteer attor- very generous with their time.” financial crisis, there is an increased need neys will say that it is a rewarding experi- NCBA Members can volunteer for any for pro bono services during these uncertain ence. Pro Bono is volunteering and if you Mortgage Foreclosure or Bankruptcy clinic, times. The enthusiastic collaboration of the never have, you are truly missing out. Too which are usually held twice a month, or to NCBA, Nassau Suffolk Law Services and The often as attorneys, we do not see the results attend a mandatory conference, morning, or Safe Center L.I., has demonstrated the unwav- of our efforts immediately, but through vol- afternoon for a few hours only, on behalf of ering commitment of attorneys to meet this unteering, you can. "It's been a rewarding a resident facing foreclosure. Volunteer attor- For the last eight years, during National demand for pro bono services. This year’s experience hearing all the appreciation our neys are always needed, and do not follow a Pro Bono week, the Nassau County Bar Virtual Open House provides a crucial and clients have for the NCBA pro bono program. case. Please volunteer if you have not already Association (NCBA) has hosted an Open invaluable service to our communities, our Opportunities such as Open House are the done so. You can also become a member House jointly with Nassau Suffolk Law system of justice and the clients they serve,” reason I keep my NCBA membership active. of the Access to Justice Committee to help Services and The Safe Center L.I. Due to the said NCBA Vice-President Rosalia Baiamonte. I'm overjoyed to be able to give back to recruit volunteers. Contact NCBA Pro Bono COVID-19 Pandemic, that was not possible. Thanks to the Hon. Norman St George, the association which provides its members Director Gale D. Berg at [email protected] However, the NCBA was not to be deterred. Nassau County Administrative Judge, court with so much," said NCBA Member Matthew for more information. The Chairs of the NCBA Access to Justice personnel Neil Doherty and Mary Gallagher Weinick. Both the volunteer attorneys and the Committee, Rosalia Baiamonte, NCBA Vice- President, and Kevin McDonough, with Vice- Thank You To The October 2020 Virtual Open House Volunteer Attorneys Chair Sheryl Channer, thought that in order to assure that the event wasn’t cancelled (having Anand Ahuja George Frooks Elizabeth Schulman Kranz Ashley Kristen Pulito William J.A. Sparks had to cancel in June,) it could be held virtu- Charlie Arrowood Domingo R. Gallardo Christina Lamm Barton R. Resnicoff Sandra Stines ally. Now that the event would be held online Rachel Baskin John Graffeo Bryce R. Levine Kenneth L. Robinson Andrew M. Thaler as opposed to in-person, it was decided that Patrick Binaskis Eric P. Habib Brian Martin Libert Mindy Schulman Roman Mary Anne Walling it could be held for a full week. Nearly 60 vol- Gail Broder Katz Wendy Hamberger Scott J. Limmer Ariel E. Ronneburger Matthew B. Weinick unteer attorneys signed up to return calls and Adam Browser Joseph R. Harbeson Gregory S. Lisi Anne Rosenbach Lisa Willis answer the questions of 123 Nassau County residents and counting who registered to Russell C. Bucheri Warren S. Hoffman Karen Luciano Lee Rosenberg Elan Wurtzel speak with an attorney one-on-one to obtain Sheryl Channer Robert Jacovetti Rhonda Maco Seth M. Rosner Glenn J. Wurzel advice and answers to any legal question. Al Constants Joy Jankunas Kimberly B. Malerba Ross L. Schiller John M. Zenir The areas of law ranged from family law, Adam D’Antonio Evelyn Kalenscher Michael A. Markowitz Scott R. Schneider real estate, labor, credit counseling, mortgage Janet Nina Esagoff Penny B. Kassel Mark I. Masini David A. Shargel foreclosure, and questions involving COVID- Jamie D. Ezratty Kristin J. Kircheim Jon M. Probstein Harold M. Somer 19 and its ramifications to employment, health, 16 November 2020 Nassau Lawyer

IN BRIEF

Ronald Fatoullah of Ronald Fatoullah & Program. Sharon N. Berlin has He received the Accredited Estate group, on recently being virtually installed as Associates received his fourteenth-year inclu- been selected by her peers for rec- Planner© (AEP©) designation Treasurer of the Theodore Roosevelt American sion as Super Lawyer© for New York Metro ognition in the 2021 27th edition of issued by the National Association Inn of Court. Litigation attorneys Russell G. 2020 which was announced in the New York The Best Lawyers in America© in of Estate Planners & Councils to Tisman and Michael A. Ciaffa will contin- Times magazine. In addition, he presented the practice areas of Labor Law— estate planning professionals who ue to serve as Directors on the Executive “Legal and Financial Planning for Caregivers” Management. Sharon was also meet special requirements of edu- Committee. These are one-year terms. for the Alzheimer’s Association LI Chapter named Best Lawyers’ “Lawyer of the cation, experience, knowledge, Four Pegalis Law Group attorneys have once Symposium. Throughout these unprecedent- Year” for Labor Law-Management professional reputation, and char- again been selected for the highly regarded list, ed times, he has been continuing to provide (Long Island) for 2020. Ms. Berlin acter. The Best Lawyers in America© for 2021. The educational webinars to the community as well delivered her message from the Mark E. Alter, senior partner four attorneys recognized for Plaintiffs Medical as to professionals regarding the upcoming Chair and together with Mr. in the Law Offices of Mark E. Malpractice are: Steven Pegalis, a Great Neck changes to community Medicaid in New York Zuckerman, authored the article, Alter, previously nominated and resident; Annamarie Bondi-Stoddard, a Port and the importance of early planning. Adam “10 Top Public Sector Labor and Marian C. Rice named to the 2013 through 2019 Washington resident; Sanford Nagrotsky, a D. Solomon was also honored by his selection Employment Law Things to Do Super Lawyers’ List, has again Mineola resident; and Robert Fallarino, an to Super Lawyer© for New York Metro 2020 as in 2020,” which appeared in the been nominated and now named East Williston resident. a “Rising Star.” New York State Bar Association Local and to the 2020 Super Lawyers List. Mr. Alter was Ellen G. Makofsky of Makofsky Law Tax attorney Karen Tenenbaum, Tenenbaum State Government Law Section’s publication, selected in the category of Personal Injury Group, P.C. was named a 2020 SuperLawyer Law, PC, has published an article in the Journal Municipal Lawyer, 2020, Volume 34, No. 1 Litigation (Plaintiffs). and received recognition for the sixth time as of Financial Planning on the topic of “COVID- issue. Mara N. Harvey will speak on the topic Vishnick McGovern Milizio LLP (VMM) one of the Top 50 Women SuperLawyers in the 19 Sheltering in Place May Lead to Tax Liability entitled “School Elections: A Looming New partner Andrew Kimler, head of the New York Metropolitan area which encom- for Clients.” She was featured on Long Island Horizon?” at NYSSBA 2020, the first Virtual Employment Law, Commercial Litigation, and passes Long Island, New York and Westchester. Business News Now about “What To Do If You Convention & Education Expo co-sponsored Alternative Dispute Resolution Practices and Ms. Makofsky is a frequent lecturer and recent- Cannot Pay Your IRS and NYS Taxes,” and was by the NYS School Boards Association and key member of the LGBTQ Representation ly presented a webinar entitled “Impending also a guest on the Law You Should Know radio NYS Association of School Attorneys. Eugene Practice, conducted a live webinar and Changes to the New York State Home Care show with Ken Landau, and discussed COVID- R. Barnosky will a speaker/facilitator on the Q&A on October 1, 2020 with the Home Medicaid Program” on behalf of The Estate 19 and residency issues. topic entitled “Collective Bargaining—More Fashion Products Association (HFPA), titled Planning Council of Nassau. Deidre M. Baker, Troy Rosasco and Daniel Hansen of Hansen than COVID-19” at the virtual 24th Annual “Returning to Work During a Pandemic: What an associate with Makofsky Law Group, P.C., & Rosasco, LLP are pleased to announce the Pre-Convention School Law Seminar co-spon- You Need to Know.” Partner Joseph Trotti, was named on the 2020 SuperLawyers Rising opening of the firm’s new Nassau office located sored by the NYS School Boards Association head of the firm’s Matrimonial & Family Stars list in the Elder Law category. at 666 Old Country Road, 9th Floor, Garden and NYS Association of School Attorneys. Law Practice and a leader of the Surrogacy, City, NY 11530, (516) 350-0789. They also Lauren Schnitzer presented on the topic “IEP Adoption, and Assisted Reproduction, have offices in Manhattan and Islandia. In Evaluations and Eligibility” at the National LGBTQ Representation, and COVID-19 Legal The In Brief column is compiled by Marian C. Rice, a partner at the Garden City law firm addition, they are both proud to have been Business Institute Virtual Seminar entitled Assistance Practices, will be leading a CLE at L’Abbate Balkan Colavita & Contini, LLP, recently recognized as 2020 Metro-New “IEPs and 504 Plans.” Adam S. Ross was inter- St. John’s University School of Law on January where she chairs the Attorney Professional York Super Lawyers. Mr. Rosasco was inter- viewed by the Buffalo NBC news station on the 27, 2021 covering recent developments in fam- Liability Practice Group. In addition to viewed last month by the Editor of Long Island topic “Analysis: Legal Rights When it Comes to ily law. representing attorneys for 35 years, Ms. Rice Business News on their livestream show dis- Returning to the Classroom.” Capell Barnett Matalon & Schoenfeld LLP is a Past President of NCBA. cussing the impact of COVID on 9/11 Victim For the seventh consecutive year, Douglas Partners Robert Barnett, Gregory Matalon, Please email your submissions to Compensation Fund claims. M. Lieberman, a partner at Markotsis & Stuart Schoenfeld and Yvonne Cort are pre- [email protected] with subject For the eighth consecutive year, Richard Lieberman, P.C., a general practice firm locat- senting multiple lectures at the 18th Annual line: IN BRIEF K. Zuckerman of Lamb & Barnosky, LLP has ed in Hicksville, has been named a 2020 Metro Accounting and Tax Symposium, organized by been selected by his peers for recognition in New York Super Lawyer in Business Litigation. the National Conference of CPA Practitioners. the 2021 27th edition of The Best Lawyers in Jacqueline Harounian, a partner in The firm is proud to acknowledge its attor- The Nassau Lawyer welcomes submissions to the IN BRIEF column announcing news, America© in the practice areas of Education Wisselman Harounian & Associates, will pres- neys selected to Thompson Reuters’ New events, and recent accomplishments of its cur- Law, Employment Law—Management, Labor ent the topic of “Pitfalls of Divorce Mediation York Metro Super Lawyers, including partners rent members. Due to space limitations, sub- Law—Management, and Litigation—Labor in Matters with Domestic Violence” for the Gregory Matalon & Yvonne Cort, and associ- missions may be edited for length and content. and Employment. Mr. Zuckerman was also American Bar Association. ate Monica Ruela, who has been selected to PLEASE NOTE: All submissions to the IN a co-speaker on the topic “Free Speech in Stephen J. Silverberg, a long-standing Super Lawyers Rising Stars. BRIEF column must be made as WORD the Public Sector: What Employees Can member of the Estate Planning Council of Forchelli Deegan Terrana LLP warmly DOCUMENTS. and Cannot Say” at the New York State Bar Nassau County, has been named as a member congratulates Michael A. Berger, an attorney Association’s virtual “Bridging the Gap” CLE of the Executive Committee of the Council. in the firm’s Employment & Labor practice NCBA Coronavirus Task Force Takes Safety Tour of Supreme Court Building

The Hon. Norman St. George, Administrative Judge of Nassau County recently invited NCBA President Dorian R. Glover and members of the Bar’s Coronavirus Task Force to tour the Supreme Court to see the protective safety Need to place a Public Notice ad measures and protocols implemented as a result in Nassau or Suffolk counties? of the COVID-19 pan- demic. Task Force mem- Our weekly rates start at 39.5 cents per line! bers were given an oppor- tunity to ask questions Please be advised that effective immediately the deadline for and observe the court’s submissions will be at 12:00pm on Monday for Friday editions. readiness as in-person courthouse proceedings Photo by Dan Bagnuola are slowly and deliberate- ly increased. The tour began at the courthouse doors, moved to the jury assembly area and con- cluded in the courtrooms, all of which have been reconfigured for jury trials to protect the health and safety of attorneys, litigants, jurors and all court users. The tour demon- If you have any questions please call Robin Burgio strated the essential collaboration and constant communication between the Bench and 631.737.1700 or email [email protected] Bar as they work to provide Access to Justice for one and all. Nassau Lawyer November 2020 17 WE CARE

We Acknowledge, with Thanks, NCBA Contributions to the WE CARE Fund Sustaining Members DONOR IN HONOR OF 2 0 2 0 - 2 0 2 1 Helaine Helmreich Emily Franchina

Frank Scalera, who was hired by Oyster Bay as the Michael G. LoRusso new Town Attorney The NCBA is grateful for these individuals who strongly value the NCBA's mission and its contributions to the legal profession. DONOR IN MEMORY OF

Sandra and Joseph Sgroi Florence Leavitt Erica Lucille Alter Hon. Richard S. Kestenbaum Hon. Susan T. Kluewer Lois Schwaeber Justice Ruth Bader Ginsberg Margaret Alter Mark E. Alter Martha Krisel Carolyn Scher Donald Finkelstein, father of Dana Finkelstein Vanessa P. Anagnostou Donald F. Leistman Michael J. Antongiovanni David I. Levine Rosalia Baiamonte Marilyn M. Levine Gregory S. Lisi Michael Ciaffa, Sr., father of Hon. Michael A. Ciaffa Ernest T. Bartol Peter H. Levy Howard Benjamin Gregory S. Lisi Abraham B. Krieger Baruch Satler Jack A. Bennardo Hon. Roy S. Mahon Hon. Maxine S. Broderick Mili Makhijani Hon. Denise L. Sher Michael Ciaffa, Sr., father of Hon. Michael A. Ciaffa Neil R. Cahn Peter J. Mancuso Jeffrey L. Catterson Michael A. Markowitz Hon. Denise L. Sher James J. Donlon, husband of Betty Donlon Alan W. Clark Tomasina Cuda Mastroianni Hon. Leonard S. Clark John P. McEntee Donna-Marie Korth Flory Warshawsky, wife of Hon. Ira B. Warshawsky Hon. Lance D. Clarke Christopher T. McGrath Richard D. Collins Anthony J. Montiglio Ellen Birch Kevin Kelly, husband of Latonia Early Kellyss Michael J. Comerford Michael Mosscrop Hon. Eileen Catherine Daly Teresa Ombres Hon. Michael L. Orenstein Hon. Denise L. Sher Hon. Ralph P. Franco Hon. Joseph A. DeMaro Michael DiFalco Lisa M. Petrocelli Laura M. Dilimetin Christian Aaron Pickney Donna-Marie Korth James J. Donlon, husband of Betty Donlon John P. DiMascio Jr. Milan Rada Janet Nina Esagoff Michael E. Ratner Howard S. Fensterman Marc W. Roberts IN HONOR OF THE WE CARE FUND Samuel J. Ferrara Jamie A. Rosen Ross Weaver Hon. Maxine S. Broderick Ellen L. Flowers Leonard M. Rosenberg Hansen & Rosasco, LLP Mary Anne Walling Thomas J. Foley Daniel W. Russo Lawrence R. Gaissert Jerome A. Scharoff Marc C. Gann Stephen W. Schlissel Eugene S. Ginsberg Hon. Denise L. Sher Frank Giorgio, Jr. Hon. Peter B. Skelos WE CARE John J. Giuffre Ira S. Slavit Dorian R. Glover Wiliam J.A. Sparks Thanksgiving Basket Donations Alan B. Goldman Jill C. Stone Stephen F. Gordon Sanford Strenger Hon. Frank A. Gulotta Terrence L. Tarver WE CARE asks you to please donate $100 Mary Elizabeth Heiskell Thomas A. Toscano or whatever you can to enable us to Alan B. Hodish Danielle M. Visvader provide two full-boxed dinners to be Carol M. Hoffman Hon. Joy M. Watson delivered to local families in need on Warren S. Hoffman David Paul Weiss Thanksgiving. James P. Joseph

To make a donation, contact Bridget Ryan at (516) 747-4070 ext. 1226 or [email protected]. To become a Sustaining Member, please contact Checks made payable to Nassau Bar Foundation — WE CARE the Membership Office at Contributions may be made online at www.nassaubar.org or by mail: (516) 747-4070. NCBA Attn: WE CARE 15th & West Streets Mineola, NY 11501 18 November 2020 Nassau Lawyer

DISTRICT COURT IN-HOUSE COUNSEL NEW LAWYERS Discusses issues arising from practice Shares information and support to assist Structured events and activities of benefit in District Court, and promotes dialogue in-house counsel and new subject matter skills. and interest to newer attorneys (within between the bench and the bar with respect Chair: Tagiana Souza-Tortorella ten years of admission) and law students, 2020-21 NCBA Committee to issues of common concern. including social and professional activi- INSURANCE LAW Co-Chairs: S. Robert Kroll and Roberta ties. Establishes support network for new List and Chairs Reviews insurance claim procedures, insur- lawyers. D. Scoll ance policies, substantive insurance law and Co-Chairs: Steven V. Dalton and Glenn related issues. Questions? Contact Stephanie DIVERSITY AND INCLUSION R. Jersey, III Encourages more diverse membership Pagano at (516) 666-4850 or INTELLECTUAL PROPERTY LAW participation at the Bar and promotes dis- Provides a source of information to prac- PARALEGAL [email protected] for cussion of issues related to diversity in the ticing attorneys whose interests relate to Promotes the exchange of information more information. practice of law. patents, trademarks, copyright and other between paralegals and attorneys and pro- vides and establishes a networking opportu- Chair: Hon. Maxine S. Broderick intellectual property matters. nity between paralegals and attorneys. Vice Chair: Rudy Carmenaty Chair: Frederick J. Dorchak Co-Chairs: Maureen Dougherty and Vice Chair: Sara M. Dorchak DOMUS (HOUSE) Cheryl Cardona Oversees repairs and refurbishing of the LABOR & EMPLOYMENT LAW NCBA headquarters. Analyzes proposed federal and state legislation, PLAINTIFF’S PERSONAL INJURY ACCESS TO JUSTICE CIVIL RIGHTS LAW Discusses new developments and changes Chair: Maureen Dougherty administrative regulations, and current judicial Develops innovative programs to provide Explores issues related to the protection decisions relating to employer-employee in the law that affect plaintiff’s lawyers and free or reduced fee access to legal counsel, of the rights of minorities and various civil EDUCATION LAW relations, pension, health and other employee their clients. advice and information. rights legislation. Discusses topics related to the legal aspects benefit plans, Social Security and other matters Chair: Ira S. Slavit of school systems. Co-Chairs: Kevin P. McDonough and Chair: Bernadette K. Ford in the field of labor and employment law. Vice Chair: David J. Barry Co-Chairs: John P. Sheahan and Chair: Matthew B. Weinick Rosalia Baiamonte Vice Chair: Robert L. Schonfeld PUBLICATIONS Rebecca Sassouni Vice Chair: Sheryl A. Channer Vice Chair: Michael H. Masri Solicits and develops articles for the month- COMMERCIAL LITIGATION Vice Chair: Abigail Hoglund-Shen ly Nassau Lawyer publication; advises and *LAWYER ASSISTANCE PROGRAM ADOPTION LAW Provides a forum for attorneys practicing supports efforts of the Nassau Lawyer ELDER LAW, SOCIAL SERVICES & Provides confidential assistance to attorneys Discusses issues relating to all aspects of editor. commercial litigation, including interaction HEALTH ADVOCACY struggling with alcohol, drug, gambling and the adoption process, including laws and Co-Chairs: Christopher J. DelliCarpini with justices and support staff of Nassau Addresses legal issues related to health, other addictions & mental health issues legislation. County’s Commercial Part. Works with other mental hygiene and social services for the that affect one’s professional conduct. and Andrea M. DiGregorio Chair: Faith Getz Rousso related committees and NCBA Officers and public and special population groups, includ- *Application & Presidential approval required Vice Chair: Rudy Carmenaty ing the poor, the aged and the disabled. Chair: Jacqueline A. Cara ALTERNATIVE DISPUTE RESOLUTION Directors on issues of corporate law affect- REAL PROPERTY LAW Co-Chairs: Katie A. Barbieri and Reviews innovative trends and strategies ing both litigated and non-litigated matters. *LAWYER REFERRAL Considers current developments relating to Patricia A. Craig the practice of real estate law. regarding alternative dispute resolution, Chair: Matthew F. Didora Advises the NCBA Lawyer Referral Service; including NCBA’s Arbitration and Mediation Vice Chairs: Marianne Anooshian and addresses policy questions regarding fees, Chair: Alan J. Schwartz Vice Chairs: Jeffrey A. Miller and program. Suzanne Levy law categories and membership. *Presidential Vice Chair: Jon Michael Probstein Christopher J. Clarke approval required Co-Chairs: Marilyn K. Genoa and Jess ENVIRONMENTAL LAW SENIOR ATTORNEYS A. Bunshaft COMMUNITY RELATIONS & PUBLIC Establishes a forum for the exchange of LEGAL ADMINISTRATORS Members approximately 65 and older meet EDUCATION information regarding substantive and Provides a forum for legal administrators to to discuss pertinent issues in their personal ANIMAL LAW procedural law in the burgeoning field of share information, learn about updates to HR and professional lives. Provides speakers to schools, libraries and Focuses on animal law-related issues and environmental matters. and labor law, gain knowledge about topics rel- Chair: Charles E. Lapp, III community organizations; conducts mock their interrelationship with other areas of Chair: Nicholas C. Rigano evant to their position, and network with other the law. trial competition for high school students; administrators, while at the same time increas- SPORTS, ENTERTAINMENT & MEDIA ETHICS LAW Chair: Kristi L. DiPaolo promotes Law Day; and plans public educa- ing visibility and understanding related to the Responds to member inquiries relating to administrator’s role within law firms. Considers topics and factors specifically Vice-Chair: Florence M. Fass tion seminars on current topics. ethics and propriety of all facets of practicing Co-Chairs: Dede S. Unger and Virginia related to practice in the field of sports, Chair: Joshua D. Brookstein law, including advertising, conflict of interest entertainment and media law. APPELLATE PRACTICE Kawochka Vice Chair: Ingrid J. Villagran and confidential relationships. Addresses effective brief writing and oral Chair: Seth L. Berman Chair: Matthew K. Flanagan LGBTQ arguments on appeal as well as develop- CONCILIATION SUPREME COURT Vice Chairs: Avigael C. Fyman and Mili Addresses equality in the law and the legal ments in the law or court rules that may Provides an alternative voluntary process concerns of the LGBTQ community. Provides a forum for dialogue among bar Makhijani members and the judiciary on topics related impact appellate practice. through which fee disputes between clients Co-Chairs: Charlie Arrowood and to Supreme Court practice. Chair: Jackie L. Gross and attorneys are arbitrated. FAMILY COURT LAW & PROCEDURE Byron Chou Addresses issues that relate to the practice Chair: William Croutier, Jr. Vice Chair: Amy E. Abbandondelo Chair: M. Kathryn Meng Vice Chair: Barrie E. Bazarsky of law in Family Court. Vice Chair: Steven Cohn ASSOCIATION MEMBERSHIP Vice Chair: Steven L. Keats MATRIMONIAL LAW Chair: Susan G. Mintz SURROGATE’S COURT ESTATES AND Develops strategies to increase and retain Promotes the standards and improves the CONDEMNATION LAW & TAX Vice Chair: Lisa Daniels TRUSTS membership as well as expand member practice of matrimonial law. Deals with estate planning, administration services and benefits. CERTIORARI FEDERAL COURTS Chair: Samuel J. Ferrara and litigation; reviews pending relevant Focuses on issues related to real property Monitors developments in federal practice Chair: Michael DiFalco Vice Chairs: Jeffrey L. Catterson and New York State legislation; and maintains valuation and litigation. and interfaces with federal judges and court Karen L. Bodner an interchange of ideas with the Nassau BANKRUPTCY LAW personnel. Chair: Richard P. Cronin County Surrogate and staff on matters of Reviews recent decisions on bankruptcy Chair: David Shargel MEDICAL LEGAL Vice Chair: Michael P. Guerriero mutual interest. law and their implications for attorneys who Vice Chair: Matthew C. McCann Reviews issues relating to medical malprac- tice litigation for plaintiffs and defendants. Chair: Brian P. Corrigan represent debtors or creditors. CONSTRUCTION LAW GENERAL/SOLO/SMALL FIRM PRACTICE Co-Chairs: Mary Anne Walling and Vice Chair: Joseph L. Hunsberger Chair: Neil H. Ackerman Provides a forum for discussion on topics MANAGEMENT Susan W. Darlington VETERANS & MILITARY LAW related to construction law. BUSINESS LAW, TAX, AND Provides networking opportunities for Vice Chair: Christopher J. DelliCarpini Reviews legislation and regulations associ- general, solo and small-firm practitioners, ACCOUNTING Chair: Raymond A. Castronovo ated with military law and veterans’ affairs, MENTAL HEALTH LAW and explores ways to maximize efficient law in particular, the needs of reservists and Educates members on emerging issues in CRIMINAL COURT LAW & PROCEDURE Provides programs on legal issues con- practice management with limited resources. National Guard called to active duty. corporate and tax law as well as accounting Reviews legislation related to the field of Encompasses a variety of areas of practice. cerning mental illness and developmental related matters, and promotes the exchange Chair: C. William Gaylor, III criminal law and procedure, and discusses Chair: Scott J. Limmer disabilities, including but not limited to, of information between attorneys and capacity, civil rights, access to treatment and WOMEN IN THE LAW problems, questions and issues pertinent to accountants. HOSPITAL & HEALTH LAW dual diagnosis, as well as discusses relevant Examines current trends regarding women attorneys practicing in this field. Considers legal issues impacting health care, Co-Chairs: Jennifer L. Koo and Scott L. statutes, case law and legislation. in the court system, and seeks to protect Chair: Dana L. Grossblatt hospitals, nursing homes, physicians, other Chair: Saundra M. Gumerove their rights to equal treatment. Kestenbaum Vice Chair: Diane T. Clarke providers and consumers. Vice Chair: Suanne Linder Chiacchiaro Chair: Edith Reinhardt Vice Chair: Anthony Michael Sabino Chair: Leonard M. Rosenberg Vice Chair: Sherwin Figueroa Safir DEFENDANT’S PERSONAL INJURY MUNICIPAL LAW BY-LAWS Vice Chair: Colleen C. McMahon Discusses new developments and changes Reviews trends and developments concerning WORKERS’ COMPENSATION Periodically reviews and suggests appropri- IMMIGRATION LAW zoning and planning, elections, employee rela- Discusses current legislation related to in the law that affect defendants’ lawyers ate changes in the current by-laws of NCBA, Discusses problem areas in immigration tions, open meetings law, and preparation and Workers’ Compensation regulations and NCBA Fund, Assigned Counsel Defender and their clients. law. enforcement of ordinances and local laws. benefits. Plan and Academy of Law. Chair: Matthew A. Lampert Chair: George A. Terezakis Co-Chairs: John C. Farrell and Chris J. Chair: Adam L. Rosen Chair: Daniel W. Russo Vice Chair: Melissa Manna Vice Chair: Lorena E. Alfaro Coschignano Vice Chair: Brian P. O’Keefe Nassau Lawyer November 2020 19 searches, housing, and access to medical and incarcerated at some point in their lives. “Walking While Trans Ban,” which effec- Transgender... mental health care that serve as a helpful This is not because Black transgender peo- tively criminalizes existing in New York Continued From Page 7 roadmap for other corrections departments ple are inherently more likely to violate the (especially New York City) as a transgender seeking to avoid litigation regarding treat- law. Instead, it is the result of a system that woman. The Governor has voiced his sup- health care. ment of transgender detainees. criminalizes the alternative economies trans- port, and the bill has majority support in The bottom line is that there are standards New York City also reached a $5.9 million gender people—in particular, transgender both the State Senate and Assembly, but it of care for the transgender community that settlement with the family of a transgender women of color—are forced to engage with has yet to come up for a vote. clearly state under what circumstances medi- woman, Layleen Polanco, who died while and a society that assumes that transgender Society is not set up in a way that allows cal care may be appropriate for a transgender in solitary confinement in 2019 after she people are necessarily defrauding others and/ transgender people to flourish and thrive. person. Insurance companies are held to suffered an epileptic seizure and jail staff or involved in devious behavior. Systems do not assume transgender people those standards of care; Medicaid programs failed to seek medical assistance. She was Due to employment and housing dis- exist. Being transgender can complicate every are held to those standards of care. Yet state in jail for a $500 misdemeanor charge. It is crimination, many transgender people must facet of life, and that reality is especially true actors in the penal system often are not. The common for transgender people to be put in engage in sex work for survival. Even for for justice-involved persons. Broader aware- result is that transgender incarcerated people solitary confinement “for their own safety,” those who do not, the New York state penal ness of these issues is an important first step go without medically necessary care despite a since being in the general population poses law contains an anti-loitering provision that towards addressing them and prioritizing diagnosis that should result in them receiving its own risks. Not only does this unfairly allows law enforcement to stop a person greater equity in an inherently inequitable that care. This can be detrimental to their punish transgender people further, but it is on suspicion of being a sex worker. In real- system. mental health and physical health—it can detrimental to their mental health. While ity, the reason is allegedly that the person Layleen’s death was the result of a medical Charlie is the Chair of the LGBTQ be unsafe to abruptly stop hormone therapy is “loitering for purposes of committing a Committee of the Nassau County Bar without the supervision of a medical pro- condition, there is evidence that being per- prostitution offense,” but the law leaves it Association and a member of the National fessional —and it can also subject them to petually singled out and, for example, being within an officer’s discretion to make that Trans Bar Association. They are Of Counsel held in segregated housing because of gender assessment based on how long the person to the Transgender Legal Defense & harassment and discrimination if, for exam- 5 ple, the results of their hormone treatment could contribute to increased risk of suicide. has been standing somewhere, what they are Education Fund’s Name Change Project, and in their private practice they provide reverse or they have not yet undergone need- wearing, with whom they are associating, Next Steps etc.6 Although the state claims to prioritize transition-related direct services to trans- ed surgical intervention and are required to gender individuals. Charlie is a parent of undress or shower in front of neighbors. While many people think New York is the ending the HIV epidemic, the fact that you two and graduate of Tulane University (B.A. gold standard for transgender rights, there are in possession of a condom can actually be History, 2009) and New York Law School Recent Settlements are many ways in which we are behind the used against you to bolster that charge. (2013). They are accessible via email at curve or could at least do better. This article S2253/A654 (Hoylman/Paulin)7 is [email protected]. It is not yet common for states or munic- began with a statistic that should alarm you: pending in the New York State Legislature ipalities to be adequately trained regard- 47% of Black transgender people have been and would repeal what advocates call the 1. National Center for Transgender Equality. (2018). ing the transgender population. Oftentimes, LGBTQ People Behind Bars: A Guide to Understanding jurisdictions address questions that arise the Issues Facing Transgender Prisoners and Their Legal from housing a transgender person only Rights at 5. Available at: https://transequality.org/trans- peoplebehindbars. because they are compelled to. 2. Id. at 6. This summer, the Transgender Legal 3. S. E. James, J.L. Herman, S. Rankin, M. Keisling, Defense & Education Fund secured a set- L. Mottet & M. Anafi, The Report of the 2015 U.S. tlement from the Steuben County Sheriff Transgender Survey 13 (2016) at 190. http://www.transe- quality.org/sites/default/files/docs/usts/USTS%20Full%20 wherein the County agreed to a variety of Report%20-%20FINAL%201.6.17.pdf new policies and safeguards to ensure trans- 4. https://transgenderlegal.org/stay-informed/tldef-reach- gender people under their supervision are es-landmark-settlement-protect-transgender-inmates/. treated with the same care and respect as their 5. U.S. Trans Survey, supra at 10 (40% of transgender 4 respondents attempted suicide in their lifetime). cisgender peers. The agreement sets out 6. Penal Law § 240.37 standards for employee conduct, names and 7. New York Senate Bill S2253/Assembly Bill A654, 2019- pronouns, commissary and programming, 2020 Legislative Session.

and Angela Pollina, then perhaps the legis- The autistic man thought he was asking Frances Catapano is an attorney whose prac- Protections ... lature should pass additional endangerment a perfectly legitimate question. He wanted tice focuses on personal injury, complex liti- Continued From Page 8 laws that specifically punish defendants who gation, and civil rights. In her spare time, she her to explain her cold shoulder because is a parent and an autism rights advocate. target autistic victims. he lacks the ability to interpret non-verbal Last year, Anthony Lanier, a school bus Need for Education social cues, and the only logical way for him 1. Centers for Disease Contorl and Prevention, What aide, pled guilty to attempted endangering the to do that was to text her. A fair result would Is Autism Spectrum Disorder?, available at https://bit. welfare of an incompetent person for striking In the hypothetical of the dejected date, jus- be for the man’s conviction to be overturned ly/3dbosd7. tice would require the law to judge him through 2. Autism Society, CDC Releases New Prevalence Rates an autistic boy on the bus in the face with the on appeal because his lack of understanding of People with Autism Spectrum Disorder, available at 7 the lens of a man affected by autism—a very child’s shoe. Unlike the case of Mr. Lanier, would negate the intent element as he did https://bit.ly/2Fesyo4. subjective one. Since the aggravated harass- there were several more alleged instances of not know that what he said would annoy the 3. U.S. v. Cottrell, 333 Fed. Appx. 213 (9th Cir. 2009). ment statute requires “intent to annoy or abuse of both boys in the Valva case over the woman. He did not even realize she was just 4. RationalWiki, Matthew Rushin, available at https://bit. harass,” the prosecution would have to prove ly/3nxNxn4. course of a few years before Thomas Valva not interested in him to begin with. that the man wanted to annoy his disinterested 5. Lowry, Lauren, 3 Things You Should Know About died. Their autism diagnoses render them date. Aggravated harassment is a specific-in- With increasing prevalence of autism, the Echolalia, available at https://bit.ly/2FfuUDb incompetent for purposes of 260.25. These tent crime, whereby he would have to intend law needs to adapt to serve this fast-growing 6. Finn, Lisa, Boy, 8, Froze In “House of Horrors”; Dad defendants allegedly punished them for fail- population. A greater understanding of the Pleads Not Guilty: DA, Patch.com (Feb. 6, 2020), available for her to be annoyed. However, her annoy- at https://bit.ly/3dfKJpS. ure to communicate – a symptom of autism. ance caught him by surprise. Subjectively, he disorder would aid prosecuting attorneys in 7. Reyes, Anthony, Buffalo Bus Aide Admits to Striking If the statute that exists is inadequate to tack did not know that his words were offensive as applying proper discretion in all criminal Child With Autism With Shoe, WKBWcom (Apr. 25, on additional charges against Michael Valva indicated by his rationalizations. cases involving those on the spectrum. 2019), available at https://bit.ly/33JnMZe.

and over 300,000 new confirmed COVID- Christopher M. Casa is a Senior Assistant 24. 41 Misc.3d 733, 735 (County Cot., Sullivan County Testimony ... District Attorney in the Vehicular Crimes 2013). 19 cases in just the last week of September Bureau of the Nassau County District Continued From Page 13 2020.28 To date, in New York, there have been 25. COVID-19 Travel Advisory, New York State Attorney’s Office. Department of Health, September 22, 2020 (https://on.ny. more than 460,000 confirmed COVID-19 gov/3jLSE0O). Moreover, the use of virtual testimony will cases, more than 32,000 confirmed COVID- 1. 497 U.S. 836 (1990). 26. People with Certain Medical Conditions, Centers for 2. Id. at 837. Disease Control and Prevention, Sept. 28, 2020 (https:// allow witnesses to testify in situations where 19 deaths, and over 5,000 new confirmed 3. 14 N.Y.3d 33 (2009). coming to court would pose a significant dan- COVID-19 cases in just the last week of 4. Wrotten, 14 N.Y.3d at 37. bit.ly/34E20Fr). ger to the health of that witness. Persons are 29 5. Wrotten, 14 N.Y.3d at 40. 27. Older Adults, Centers for Disease Control and September 2020. Therefore, there is a sub- Prevention, Sept. 28, 2020 (https://bit.ly/34IDDq3). at an increased risk of severe illness or death 6. 110 A.D.3d 153 (2d Dept. 2013). stantial likelihood that a material witness 7. 144 A.D.3d 479, 480-481 (1st Dept. 2016). 28. Coronavirus Disease 2019 (COVID-19), Centers for from COVID-19 if they have pre-existing will be physically unable to come to court 8. 25 N.Y.3d 448, 454 (2015). Disease Control and Prevention, Sept. 28, 2020 (https:// conditions such as cancer, chronic kidney dis- or unable do so without endangering their 9. Bush v. State, 193 P.3d 203, 215-216, 2008 WY 108 bit.ly/3depRPX). (2008). 29. Id. ease, chronic obstructive pulmonary disease, health due to the COVID-19 pandemic. are immunocompromised, are obese, have a 10. State v. Sewell, 595 N.W.2d 207, 210 (Minn. Ct. App. Fortunately, the use of video-conferencing 1999). serious heart condition, or are diabetic.26 In software to present virtual testimony in crim- 11. Harrell v. State, 709 So.2d 1364, 1368-1371 (1998). We Welcome the following addition, older persons are at an increased 12. Wrotten, 14 N.Y.3d at 40, n.3. inal trials is convenient, effective, and safe. It risk of severe illness or death from COVID-19, 13. Study of State Trial Courts Use of Remote New Members and the risk increases with age.27 If a witness’s ensures that both prosecutors and defense Technology, State Justice Institute, Apr. 2016 (https://bit. attorneys can present material testimony ly/2S9cfvA). age or existing medical condition would make 14. 166 F.3d 75, 80-82 (2d Cir. 1999). Victoria A. Curran it especially dangerous for them to testify in even if a witness is physically unable to come 15. Id. Akilah Folami person then the trial court should consider to court. It protects the rights of defendants 16. Id. Alexander Ross Gilbert under the Confrontation Clauses and helps 17. Id. allowing that witness to testify virtually using 18. See Craig, 497 U.S. at 845-846; Gigante, 166 F.3d at 80. Jonathan A. Moskowitz video-conferencing software. ensure a fair and speedy trial. And, it reduces 19. Wrotten, 14 N.Y.3d at 40. James P. Rosenzweig The pandemic is not over. To date, in the the risk that a witness could receive or trans- 20. Wrotten, 14 N.Y.3d at 38-39. United States, there have been more than 7 mit a dangerous viral infection to or from 21. Wrotten, 14 N.Y.3d at 37. 22. 144 A.D.3d at 480-481. Students million confirmed COVID-19 cases, more a judge, juror, attorney, court officer, police 23. See Craig, 497 U.S. at 845-846; Wrotten, 14 N.Y.3d. at Mary Diana Fatscher than 200,000 confirmed COVID-19 deaths, officer, court staff member, or the defendant. 39; Gigante, 166 F.3d at 80. 20 November 2020 Nassau Lawyer

CIVIL RIGHTS GENERAL SOLO SMALL PRACTICE ASSOCIATION MEMBERSHIP PUBLICATIONS NCBA Committee Bernadette K. Ford MANAGEMENT Michael DiFalco Christopher J. DelliCarpini/Andrea M. Thursday, November 12 Scott J. Limmer Wednesday, November 18 DiGregorio Meeting Calendar 12:30 p.m. Tuesday, November 17 12:30 p.m. Thursday, December 3 12:30 p.m 12:45 p.m. Nov. 5—Dec. 9, 2020 MATRIMONIAL LAW EDUCATION LAW Please Note: Committee Meetings are Samuel J. Ferrara PLAINTIFF’S PERSONAL INJURY John P. Sheahan/Rebecca Sassouni COMMUNITY RELATIONS & PUBLIC for NCBA Members. Dates and times are Ira S. Slavit EDUCATION subject to change. Thursday, November 12 Thursday, November 19 Check www.nassaubar.org 5:30 p.m. Tuesday, November 17 12:30 p.m. Joshua D. Brookstein 12:30 p.m. for updated information. INTELLECTUAL PROPERTY HOSPITAL & HEALTH LAW Thursday, December 3 12:45 p.m. Frederick J. Dorchak/Sara M. Dorchak MUNICIPAL LAW Leonard M. Rosenberg Monday, November 16 Chris J. Coschignano/John C. Farrell Thursday, November 19 CIVIL RIGHTS 12:30 p.m. Tuesday, November 17 12:30 p.m. Bernadette K. Ford 3:00 p.m. LABOR & EMPLOYMENT LAW SURROGATE’S COURT ESTATES & Tuesday, December 8 LEGAL ADMINISTRATORS 12:30 p.m. Matthew B. Weinick ELDER LAW SOCIAL SERVICES TRUSTS Dede S. Unger/Virginia Kawochka Monday, November 16 HEALTH ADVOCACY Brian P. Corrigan LABOR & EMPLOYMENT LAW Thursday, November 5 12:30 p.m. Katie A. Barbieri/Patricia A. Craig Matthew B. Weinick 12:30 p.m. Thursday, November 19 5:30 p.m. LGBTQ Tuesday, November 17 Tuesday, December 8 COMMUNITY RELATIONS & PUBLIC 5:30 p.m. 12:30 p.m. Charlie Arrowood/Byron Chou DISTRICT COURT EDUCATION DIVERSITY & INCLUSION Roberta D. Scoll/S. Robert Kroll WOMEN IN THE LAW Joshua D. Brookstein Tuesday, November 17 9:00 a.m. Hon. Maxine Broderick Friday, November 20 Edith Reinhardt Thursday, November 5 12:30 p.m. 12:45 p.m. BUSINESS LAW, TAX AND Tuesday, November 17 Wednesday, December 9 6:00 p.m. 12:30 p.m. ACCOUNTING CRIMINAL COURT LAW & PUBLICATIONS Jennifer A. Koo/Scott L. Kestenbaum WOMEN IN THE LAW PROCEDURE MATRIMONIAL LAW Christopher J. DelliCarpini/Andrea M. Edith Reinhardt Dana L. Grossblatt Samuel J. Ferrara DiGregorio Tuesday, November 17 11:00 a.m. Wednesday, November 18 Tuesday, November 24 Wednesday, December 9 Thursday, November 5 8:30 a.m. 12:30 p.m. 5:30 p.m. 12:45 p.m. APPELLATE PRACTICE REAL PROPERTY LAW Jackie L. Gross Alan J. Schwartz Wednesday, November 18 Wednesday, December 2 12:30 p.m. 12:30 p.m. LAWYER TO LAWYER CONSTRUCTION LAW NO-FAULT ARBITRATION APPELLATE COUNSEL

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Most recently, she was a cor Dauphin County grew by 8,997 people. Charleston, West Virginia (-1.6 percent); t majority of local hops are as a financial adviser with of Philadelphia and law degree from Dickinson and 1,661 (or 52.9 percent) lost popula on one or two acres and not pelletizing. porate social re Smoker Wealth Management. - Amy S nsyl Pine Bluff, Arkansas. (-1.5 percent); PHOTO/ “The vas Hrivnak - of Law. tion. Though there has been more growth visor and head teller II with First y She has bachelor’s and master’s . Goldm - members of Cumberland County - Farmington, New Mexico (-1.5 percent); Specialty cheese biz taps into local dairies ies said National Bank. Shesponsibility has a bach super degrees from Ashford University. - What’s happening nationally? than decline overall, the numbers indicate brewed in late summer or earlyrewer fall for FOOD BUSINESS Telecommunic Matthewan wet-hop beers,” he said. “That has been elor’s degree from York College. - Laur of the Pennsylvania S The census data confirmed that coun- Danville, Illinois (-1.2 percent); and and other b vice Adv Susquehanna Township-basedchool that this can easily shift year over year. vice presidenta J. M and cash manage Mette Evans & Woodside named By Stacy Wescoe Hills Farm in Chester County. the big limitation.” - e ties with the largest numeric growth are Watertown-Fort Drum, New York (-1.2 “We’ve recently advanced Krieger lfi was named senior has been a isorypu Board.ations Goldman Relay A deeper dive into the census data - BridgeTower Media The Millworks ment officer with Mid Penn’s First Matthew D. Co new jobs our operator training and Jones pitched the idea of using the CSA Lower Allen Town located in the south and the west. In percent). The population decreases were Lancaster-based RGS Associ Priority Bank division. She will be board. She is a speech-language ble reveals several demographic changes certification program and they would like to buy more local hops Members 1st Federal Credit - blic m S a sharehold ompany now does work format to develop a new way of selling craft ates named pathologist, has conducted er- fact, Texas claimed four out of the top primarily due to negative net domestic of Fauth Un based i ember of the er. He represents - impacting commercial real estate develop Stefanie Angstadt started making cheese cheese to cheese fans. That led Jones, Ang- Craft-beer boom spurs local hops farmersyear round, especially pelletized hops, to ect l io trainings on the importance of are currently engaged with n named s n Chester County insurance com 10 spots. Looking at population growth migration. a pilot program assessing andscape architect.Jake Krieger He ha Alma Jimenez hip-based tribute to deposit growth through - - ment: household formations, aging baby - efficienciesas a hobby for the soon use afterof graduating from col- stadt and Miller in 2016 to create the Collec- support farmers. a bachelor’s degree from Temple telecommunications for those “I think brewers absolutely want to use branch manager business development activities. panies, fraternal by metropolitan area, Dallas-Fort North Dakota was home to the fastest- lege in 2008. tive Creamery CSA, based out of Angstadt’s By Jason Scottj.com Un - with disabilities and has been boomers, growing millennials, women g University of Sci drones for 3D modeling of cpb ivers proj of the location She will also generate fee incomeand con benefit societies, - Worth-Arlington, Texas had the largest growing county. Among counties with a are vast, said Albert R. After a few years she knew it was some- Oley creamery, with Jones as the operations jscott@ it,” Musselman said, noting the differencesnamed a itcomputery. aided drafting - through involved with the administra insu Mike in the workforce and migration toward es include the use Matthew Faut inside the Gi - Flahive said. The c in smell and taste between East and Westand design designer. He also is a s tion of Pennsylvania’s telecom ra numeric growth, with a gain of 131,767 population of 20,000 or more, Williams o thing she wanted to do full time. manager and Angstadt and Miller as the two ant Foods store ucts and services, cas and expand and ducers andnce pro third- Kushner the South. Today’s demographic changes for a number of different clients, including on. h management pr iness Harrisbur Pennsylvania leads the nation in craft- - Coast hops. sergeant in the munications device distribution people, or 1.8 percent in 2018. Second County, North Dakota, claimed the top construction companies, utilities and gov She opened Valley Milkhouse in a former primary cheese makers. roducti beer is being brewed in h on East Market - retain customer relationships. She party administra - - But Musselman said he expects local was program. Hrivnak will represent present challenges for commercial real ernmentThe agencies. opportunities for creating beer p le more has an ass Street, York has tors in insurance regulatory, trans was Phoenix-Mesa-Scottsdale, Arizona, spot as the fastest-growing by percent- te leaders to support the growing drone industry. dairy farm in Oley in 2014 and began to “We thought between the three of us, we Na 43 years of financi ta But whi Technical Institute. od the PU - estate developers, but they also offer lu s hops would cost more than those from ocia tional Guard. He was a branch experience. - actional and litigation- matters. and bus manufacture and sell her cheeses profes- could pool our resources and move beyond te de noting is thatCoble the counties have main- which had an increase of 96,268 people, age. This county’s population rose by 5.9 Sarvis, an assistant professor of geospatial . She er ServicesC’s B - age places like Carlisle, Harrisburg and York, larger West Coast suppliers, given the gree from York manager for PNC Bank. crative opportunities to firms creatively technology at sionally. farmers markets,” Angstadt said. ureau tained the same order of ranking based or 2.0 percent. The cause of growth in percent between 2017 and 2018 (from le to assess lower hop volumes at local farms. Nev J al is manager of compliance and cour ence and Technology. HU has adapted its b brewers here must rely on some key in Upper Dublin Township, Mont imenez CONSTRUCTION servic of MARKETING adapting to new demands. cations, such as river Not a dairy farmer, herself, she partnered According to Jones, the trio didn’t invent on the upon population for eight-plus years. For these areas is migration, both domestic 33,395 to 35,350 people). The rapid geospatial programs t ip gomery County-based McMahon es com Consum gredients that often travel long distances. - ertheless, he said he would still buy local pe board. He - • drones and has sponsored summer camps with other small Berks County dairies to buy the idea of a cheese-based CSA. But, she Manheim Township-based Lancaster-based Wohlsen tition in the bureau’s pol Lancast - One is hops, which are not widely with Pennsylvania-producedAssociates Inc. named icy division. - example, in 2010 the counties in order of and international, as well as natural growth Williams County experienced was for students in high school and middle more hops for specialde PA Preferred brews, i.e., Ambassador Advisors LLC named Construction Co. named named Mike Kushner is the owner of Omni Realty n Pennsylvania, or on the East ps ma e school to encourage interest in the technol le had ruined a portion of fresh warm milk “straight from the udder.” said, “A cheese CSA is still pretty unique.” s pher K. Bauer r-basedsmallest Godfre population to largest were Cum- increase. In Dallas, it was natural in- due mainly to net domestic migration of - tt drone was a grown i - beer Christop Maza ciate creativeLuke director. Weidner He will Group, a real estate firm in Harrisburg. He can ogy, SarvisOthers said. pointed out that drones have been A Her cheeses — mostly a mix of softer and Jones said it also makes sense. ricultural commodities,general manager like hops of or the Camp - project Coast in general. ag Coolidge her R. manager and es Harrisb oversee message unificationberland, andDauphin, York and Lancaster. crease that served as the largest source 1,471 people in 2018. The county also ex- be reached through www.omnirealtygroup. office. He has morean associate.than 20Christo years He is Service Commission named - pt ngaged with a pilot program as used in the film and television industries, as aged styles — were a hit. “You can get subscriptions for anything In fact, most hops come from Washing investment of timator. He was urg-based State Civil an asso e David pportersHeath, director hope to of en the PA Drone Association, prepares to make remarks at Drone Advocacy Day June 11 in Harrisburg. Heath and other s how ca and Idaho, which account for grain. Manuel bran This is the samey ranking we see in 2018, of population growth. For Phoenix it was perienced growth between 2017 and 2018 com� well as in surveying rail lines and in police of project management and trans - chief resa Osborne su areas,” she said in a written “We make everything by hand. It’s very today — dog products, beauty products — Oregon Victor Shaffer and Andrew Lyons start ficer. He project engineer. - d co e and emergency appli be outfitted on ton, ne has about 40,000 cy nsiste - n portation engineering experience County a commissioner. She was and align cre training and certification program and are rescues. One story told during the June 11 gooda cheese so there is a demand,” Angstadt why not cheese?” she said. ton alo e dried hops the wealth man - He h n - the majorityi ngof the country’s hop produc ed growing an acre of hops outside of Hi lead ative resources - currently e event wa - and has h ll as a bach secretary of the Pennsylvania of Lackawanna De uch – exc farmer’s crops. said. . Wash agement depart s lor’s degree from sessing efficiencies for the use of drones for a em to pelletizem into powder Mechanicsburg last year. Their company, Te with project and - ylvania seems to be falling o conduct - tion ders recently purchased equipment that through their responsibilities as partment of Aging. - t the total damage, which helped justify the s of hops. gan growing the crop in 2017 in a bid to make locally grown ho ment and works - Millersville Uni e- a legis 3D modeling of stockpiles, excavations and In fact, demand often outpaced her sup- A profitable boost From left, Sue Miller, Stefanie Angstadt and Alex Jones brought together their collective acre armers to Mike and eySharon be Reifsnyder stand in the hop yard of their West Pennsboro Townsh called Lion Bines Hopelpe Farm, is expected to account needs to roadway slid insuranceThen claim. there are the spin-off businesses. will allow th local projec d municipalities - Two Cumberland County hop farmers m. Th PHOTO/MARKELL DELOATCH ning to grindinto thsmall pellets. Pellet with various oth - versity. en GUEST VIEW us – response to questions. ply. Nonetheless, she struggled with the lo- The Collective Creamery is now heading talents to form the Collective Creamery CSA in 2016. PHOTO/SUBMITTED far m produce a partial harvest of hops this year sure efficien c - — mea and federally funded projects. He HEALTH CARE Ryan Boswell is the Philadelphia-based - er departments. - cy. Most recent ses, Penns - gistics of getting the cheese she was making into its third year. And while it is still just available. and a full harvest tnext sponsor year. egu FlyingSeveral into new attendees roles at the June 11 event sales manager for PhaseOne Industrial, DRONE are hoping to claim a piece of that market - als - continued from page and press the o serves municipalities’ day- He is a chartered financial- analyst York East Pennsbor ly, he was the - a camera company to based the in people Colorado. who wanted it. a small part of each of the cheesemakers’ Brewing Co. in Douglasville and Covered and inspire other Pennsylvania f to-day traffic consulting needs.s on sta -based Wagman Construc PhaseOne cameras c will offer “You can get subscriptions But Reifsnyder, who retired in 2011 ized hops have a longer shelf life and are charterholder. tion Ma based Geisinger Holy Spirit day pas said they think state leaders will be sup andcreate 100,000 new jobs in the United . Coolidge design manager - According tothe a I za - variousvernments, drones toWhile quarrydo a variety operators around of work and for utilityStates80 alone percent by 2025. The as of the cheese business, it is an important one. Bridge Farmstand in Oley — and at one consider cultivating the crop for breweries year. He te nc further behind in developing a domestic or new r portive of ideas to expand drone programs is to encourage state leaders to support Farm what many brewers rely on throughout tor of business. named development for named rcial applications once they understand go the deve from the U.S. Navy after 22 years of service, ps this is a pro o Township- for Ar both within state agencies and with com unmanned aircraft systems, as they are for anything today — dog he thing. Not too many 15-acrepeo Retirement plans should be piece of M&A puzzle For now, the association isn’t asking - she makesmore formally known is – because sold other states wholesale to markets and By eliminating the middleman, the chee- location in the Lehigh Valley — Bonn Place in Pennsylvania. a chance on hops after experiment professional traffic operations Maryland. He will Joe Corson of GeisingerDr. Ho Ming Jang companies,already areamong doing so. others, Boswell said. the year. fes tisanal B Weidner me “It’s a nic took ounds of ho sional eng Manheim Township-b Weidner has a bachelor’s degree million to pay for a 50-mile unmanned air $82.1 billion in economic benefits enginee Bankruptcy Attorney the potential.Tasks such as bridge inspections or aerial semakers get more of the profit. Brewing Co. in Bethlehem. Other pickup The farm’s hop yard could yield about expand the firm’ ly Spirit Primary 2018 was a banner year for mergers So, if you’re planning a merger or acqui- restriction before being able to join the includes confirming past operational and Pennsylvania’s leaders for m corridorbetween Syracuse and Rome, the products, beauty products p plants on his RKL Wealth Ma - For example, New York is putting up $30 direc from Penn State. rewing Ventures. association said. Other states have become ing with grapesea farm, and dubbed asparagus GEMS on his a memb to be aware of what is going on and to offer federal test sites for the drone industry, r. ineer Ca - while others have been joining regional Angstadt said her profit margin is gener- locations are in the Chester County and ple do it,” said Michael Reifsnyder, who - named participation in - - and acquisitions. Global M&A activity was sition, consider the retirement plans now buyer’s 401(k) plan, losing out on a full procedural compliance, making sure all surveys that once took weeks however, seem to have a lopment of a drone in m 5,000 or 6,000 p after selling almost re. He will see support as ideas develop, several people partnerships to develop initia Carlisle-ar ar and day passes, Pennsylvania seems to be falling — why not cheese?” known oppor tunities adult patients er said. One goal is to create a working group ut that drones are regulat can now be done in a day or so, Day said. further behind in developing a domestic ally about 15 percent to 20 percent on the Philadelphia areas. planted 3,400 ho - GEMS expects to pelletize the majority Swatara Township-based Skelly senior wealth William M. Onorato s the second highest on record, with deals to avoid a headache later on. year of tax-efficient savings and employer plan documents are up-to-date, and con drone industry, observers said. nagement LLC NONPROFITS within the state aviation cau Farmers, utilities and others have seen how 1 He also saw success at nearby hop yard and Loy named ased Pennsylvania’s leaders for much – except West Pennsboro Township property in strat and enhance and drones can reduce the costs of projectsto and be aware of what is going on and to offer roughly $150,000 in gross sales she has in a By having a wider client base, the chee- the lack of new hop far breweries. of its hops this ye totaling $2.72 trillion. Looking ahead, 76 If the transaction is a stock acquisi- contributions. firming general compatibility between the lative group – to develop a roadmap that ntrols U.S. airspaces and For now, the association isn’t asking specialize - support as ideas develop, several people — Alex Jones, Collective Creamery CSA Sunny Brae Farms and thought his farm marketing spe egist. He will Philadelphia-based Pennsyl nting o inspections. They also havesaid. One goalweighed is to create a working the group li o examine high- son for , along with advise high-net- client relation in geriatric care. would “identify funding opportunities to within the state aviation caucu 2017. ting started and com - n commercial drone opera ssociation, drones year. That makes it a challenge to maintain semakers also are able to offer more variety. get s to small all of its harvest last fall to local breweries percent of top executives at U.S. compa- tion – where the buyer takes full owner- The main advantages of termination plans. Examples include reviewing non lative group – to develop a roadmap that go premium p vanians f abilitywould risks “identify funding and opportunities realized to they are better off could provide complementary varieties of cialist. She will be support critical drone, poi infrastructure,”ch co the ive A big rea LeShelle Smith worth families a ships throughout He was a clinical i es support critical drone infrastructure,” Governments, the associationThe saidassociation in a fact isn’t sheet. asking f association said in ausing fact sheet. drones. a capital-intensive operation. Anywhere Angstadt and Miller rotate between six But they are on the lookout for more pickup making wet-hopped beers — also retired or Mode nies expect to close more ship of the selling company – the buyer are that employees can be integrated into discrimination testing results from recent rucks t fresh local ho responsible - on multigenera Mar - assistant profes lations, pointing out that drones are regulat ers is difficulty in - and his wife, Sharo fresh-hop beers that use hops fresh letizedoff DISABILITY INSURANCE LAW ed by the Federal Aviation Administration, locations along their current route and for as ylan Lawrence F. varieties of cheese, including Angstadt’s equir The association isn’t asking for new regu sociation’s goal she can improve the profit margin is a boost. He s pel rn Courts named deals this year than last, then assumes all of the seller’s liabilities, the buyer’s plan with one benefit structure years, the seller’s fiduciary oversight prac lations orFAA, which controls U.S. airspaces and higher hurdle to overcome when liability graphics coordi 30 years ofd con Judge already requires commercial drone opera ly grows five tiona . He has sor of medicine tors to peting with larger established operations. hops a ed by the Federal Aviation Administration, concernsSeveral are raised, experts Day noted said. the dderconcerns t can Profits on the CSA vary from month to Witchgrass, her version of a French Valen- pockets of cheese lovers who may want to the vine. nat fory l planning, struction industry Stengel - and a majority predict including its retirement plan. The buyer for all; there is only one plan to maintain; tices, administrative operations such as for action on the “These local houses are up against com their two teenage daughters, maintain, but the plan many legacy planning, - in the division of geriatric- me or FAA, wh 2018, Pennsylvania atute. lawmakers passed Act Wet-hop batches of beer canion, use including five Butthat doesn’t mean there is no room cres mem a lready r 78, which limits the ability of municipali d month, but she said they tend to average at cay cheese, and Miller’s Clipper, an aged get in on their offerings. board ties to regulate unmanned aircraft unless be eased once the options are carefully est. GEMS 25current a preparation of - has a bachelor’s degree- fromCorson the cine at the Un these deals will be larger, has three options for how to handle the and the risk of any liability transfer into distributions, payroll and loan processes, a ustry – or the hop yard, which is entering its second business succes Jang authorized by the statute. b get a license. panies that can reach a better economy harv er tors to Butget athat license. doesn’t mean there is no room weighed. For example, the risks to survey a e, plus have quality control proce ing to 10 times as a shareholder . ordinances that can interfere with commer the higher end of her overall profits. raw-milk cheese. They also reach out to “We have to be lean and use the resources brochures, charts sion University of Bal vani He is according to a report acquired company’s retirement plan. It the buyer’s existing plan is avoided. The and fulfillment of government reporting cial operators, said David Day, executive utility line traditionally would involve work year of expe Local jurisdictions often move to pass f scal ches. vice president at Keystone Aerial Surveys o eties of hops on 3. and estate a’s Perelmaniversi School of with Manheim basedin Philadelphia. That makes educa ers using la other cheesemakers in other regions, hop- we have,” Jones said. i bat and exhibit ma rienc c tion critical, he added. for action on the state level. In October tiv The current CSA package from the Col- var planning. He has 25- years of es ine. He has a medical degree dures and logistics plans that have been d. al brewers say they are eager to bu e. He ty from Axios. These compa- can either maintain its own plan and the downside is that the employee accounts requirements. 2018, Pennsylvania lawmakers passed Act sai Loc terials. She will of Pennsyld Township-ba es. As eac ing to include their specialty craft cheeses One secondary benefit to the women’s is to eventually grow to seven acres, plant tate planning and wealth strategy EDUCATIONtimore. from Drexel University College i 78, which limits the ability of municipali in place for decades,” said Brandalynn adar,” he ties to regulate unmanned aircraft unless r r more local ingredients, including hops, ocal jurisdictions often move to pass a wider variety of hops and reach more Medi sed authorizedL by the st Armstrong, co-owner of Zeroday Brew

state level. In Octo s – in Harrisburg. “It makes it harder for the ordinances that can interfere with commer h “Expansion is on ou cial operators, said David Day, execut a leg vice president at Keystone Aerial Surveys Over 40 years experience in all forms of Bankruptcy

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GUEST VIE • Free Consultations W SUBSCRIBE TODAY! • Disability Claim Management CALL 877-615-9536 OR VISIT Kenneth Halpern year. It is my hope that the House Republican Caucus, along with the Pennsylvania Medical ters than they do at Society and other medical-service advocates, aid [email protected] face 50 percent lower costs and tion andThis innovation ASC tax wouldin health be acare. blow By to tyingcompeti will prove once more that this tax would be patients with commercial insurance plans the invisible detrimental to Pennsylvania surgery patients. pay as low as 25 p care with burde ees. Those the extra mile and demonstrate increased able toFirst, afford this state-of-the-art tax would cause equipment. ASCs to be un In addition to saving patients money, these hand of the free market in health productivity, which who shows up in a compa with large amounts of information.Such People practitioners also save Medicare $2.3general billion hospita cost theAnother state Medicaid tax on these system, it may even GUEST VIEW are engag • Talk a year on just the 120 most-common proce ny’s profit their personal lives, but rewards of the digest details in small chunks,productivity so consider and healthier patients, but under ab equipment dures that Medicare patients receive, accord nsome incidents and quality. program. What’sout in i an ongoing campaign to share bits and ercent the costs of a hospi ed at wo the rewa ingAlready to UC Berkeley. a Print &House DigitalI andurge Senate my colleagues to vote against in the Pennsylvania this proposal Subscriber? Call to upgrade - NOW! ability, turnover numbers, safety powerful motivator to expand participa Communica pieces of information, or a web page to and I taxes, we get less rk will go ls. M health and wellness program and fo tion. That participation, in turn,rds can – no build view the full information when employees a in 2015,UC Pennsylva Berkeley noted Shore Endoscopy in Cumberland County to TO THE EDITOR llows them to have higher urge G business overall. Looking to a professional a team atmosphere and lead are interested and have time. $32.6 million on cataract procedures, $1.3 edic learn about the progress that is being made by ti t for t t only for ASCs would restriction before being able to join the includes confirming past operational and In 2016, as fate would have it, an old once-a-month pickup of two pounds and in the CSAcomm to give customerson more is options. engagement. million on upper GI procedures these entrepreneurial physicians and nurses. - If there’s one constant in health direct loans to businesses, with volume rising The investments typically will flow through 2018 was a banner year for mergers So, if you’re planning a merger or acqui- hem can be a • Have a sense of humor when commu - care, it’s change. UPMC’s invest will help streamline communicakey lion on cystoscopy procedures. ov. Wolf to visit an ASC like West and acquisitions. Global M&A activity was sition, consider the retirement plans now buyer’s 401(k) plan, losing out on a full procedural compliance, making sure all friend of Angstadt’s, Alex Jones, a prominent four varieties of cheese for four months For example,unicator Miller fo is currently work - nicating. Loosening up a formal approach ment in southcentral Pennsylvania from about $10 million to $30 million in the what are known as qualified opportunity funds. for an • Consider health and wellness ambas my district,As I meet such with as those physicians at West and Shore patients En in organizer of commu- to $280 for a twice- ing withrounding a sheep such farmera program to andblend lead sheepto more sadors. Peer-to-peer c can go a long way to creating engagement has brought positive change to past three years. the second highest on record, with deals to avoid a headache later on. year of tax-efficient savings and employer plan documents are up-to-date, and con- employee were toIf thebe enacted, Wolf administration’s the Pennsylvania tax proposal Am doscopy, I have been amazed n we are Community First has been working to develop engaged, healthier employees.r ideas and best practices powerful and partnering with passionate with th in a recent stu - ot only rved. kets nity-supported agri- monthly pickup and cow milk together to make a creamy a hands-on workshop for growingbulatory veg Surgery Association, alongnia with A a our region, including new, highly s rese The nonprofit also has opened new loan offic totaling $2.72 trillion. Looking ahead, 76 If the transaction is a stock acquisi- contributions. firming general compatibility between the - - of t , Suzanne Fischer-Huettnerll right - r a team members to communicate can reto higher board with the program. etables or herbs. At GRIT, team members specialized services, thousands of a. A such funds, which could work in combination federal allocation, the organization’s eighth. What can you do? e communication and getting on coalition of state medical societies, warn thatSCs heir edi percent of top executives at U.S. compa- tion – where the buyer takes full owner- The main advantages of termination plans. Examples include reviewing non- culture programs in of one-and-a-half Camembert-style cheese. move the paternalistic facto electronic es in Allentown and Philadelphia where it would • Make in the wellness program are walkingup to 25 miles percent of these centers may need only minorWe all if can it happens relate to to the someone phrase, else.”“Surgery is new providers and leading-edge ing with other state and federal incentives. The previous seven allocations have helped the Greater Philadel- pounds and three Ultimately, their goal is to turn cheese ommunicati saved Medicare innovative approach. , includ nies expect to close more ship of the selling company – the buyer are that employees can be integrated into discrimination testing results from recent emp (via a to close - anner like to add more people to expand lending. Among the most notable of those is the 1 Old Country Road #125, Carle Place, NY 11514 • Connect the dots for employees to the tech eproduction or use, without permission,tion to fund 38 developments in the state, including tions sur loyees what it a two-way program conversation. components Ask 23. R za y “We expect to go deeper into mar - phia area, had just varieties of cheese lovers into die-hard cheese fans. bigger corporate picture. Participation in they’d like to see. Find out what might mo - ticket to step anywhere tracker in the world.costly The general more hospitals and forcing centers to dy th and theyNobody especially wants do to notbe told want they an unpleasneed surgery advanced diseases.Copyright However, 2019 byeven BridgeTower M uthori ma deals this year than last, then assumes all of the seller’s liabilities, the buyer’s plan with one benefit structure years, the seller’s fiduciary oversight prac- Appeals for Denied or Terminated - no ontent in any m A use the Hamilton Health Center in Harrisburg, wellness programs has the potential to de on withdraw from Medicaid. ional . • left a job with a CSA. for four months. “We want to cultivate the cheese culture - - tivate them to participate. Ask for ideas on creative and out-of-the-box the program,– pu at ant surgery experience. po logy olumeto treat 35, theNumber most media.com. ct and a majority predict including its retirement plan. The buyer for all; there is only one plan to maintain; tices, administrative operations such as is and $6.9 mil V ower or instru- - in,” Betancourt said. Lancaster’s Keppel Building and the renova crease company health benefit costs over c sitive change can cause confu ridget is pub In a typical CSA, CSA packages gen- in this area like it is in Europe. We don’t want ommunicating the details to staff. when paired with easy )ways to earn to participate, shing thousands of sion. I’d like to take a momentof editorial to or graphic c b But depth, he said, requires a bigger team. — likely mixed-use, commercial and ime, officials are narrowing these deals will be larger, has three options for how to handle the and the risk of any liability transfer into distributions, payroll and loan processes, all, which in turn could make a differencer. vaniansThanks have beento ASCs, given thousands a convenient of Pennsyl and 1058-3599) year tion of Gettysburg’seant Schmucker Hall. the more people will want to take part. clarify a question involvingreproduction, health email is prohibited. larnold@ For licensing, reprints, e-prints and - the m receive the tax a group of farmers erally run from five people to see cheese as a guilty pleasure, but • Use social channels to help spread quality outpatient experience with positive ight Clearance Center (ISSN at 978-750-8400 e In according to a report acquired company’s retirement plan. It the buyer’s existing plan is avoided. The and fulfillment of government reporting in employees’ premium or out-of-pocket - the word. Whether its an internal social a free airplane at the benefits plaques, yr wer M That starts at the executive level. community service projects — with a focus on insurance plans accepted at UPMC the Cop - • Stay diverse with your communica outcomes and speedy recovery in the comfort rom al post - connect with a group to six months. The as a food you eat every day,” Angstadt said. health care costs. tool such as Slack or Yammer or a closed - photocopyed articles f for internalBUSINESS corporate JOURNAL er by BridgeTo - In addition to adding new execs, the non those that exceed $5 million. down mixed-useate thatand commercialcould projects from Axios. These compa- can either maintain its own plan and the downside is that the employee accounts requirements. tions focus. If there is a large subset of of their own homes. A double tax on these Pinnacle. NN e periodic of consumers who current package is “This is a way to grow the cheese community. group be obtain L PE - Developers often have to spend more nies, and others around seller’s plan separately, terminate the become immediately accessible. So, if not Many companies partner with an out- staff who bike to work, that’s great, but if centers would not only be devastating to the - CENTRA except for the first week 0of 4-2633.July, the Th last full week hofanges across the st age employees to share pictures of their - ly ress c want to buy fresh, shortened since the “People don’t see fine cheese as a neces- premium for the milk,” she said. on Facebook or LinkedIn, encour - that’s all communications are about, the many hardworking physicians in our com UPMC Pinnacle hospitals and d the last full week of Decembdditional mailing offices. POST money to buy and fix up vacant and blighted the globe, turn to M&A seller’s plan, or merge the seller’s plan rolled over into an IRA or other retirement side consultant to conduct a thorough patients into outpat lished week an at a credits. Part of that selection process could healthy choices and/or program partici monwealth but and he p local produce. They current CSA season sity,” added Jones. “When they go to the gro- Her sources include Spring Creek Farm- in company risks losing support from other accept most major insurance November , PA properties than they can expect to get back include working with Lancaster-based deals- to increase market John into its own plan. plan, employees could squander retire- benefit plan review and help determine pation. Build a little competition between isburg ervice requested. Send addesponsible for t Tax credit plan - parts of the employee base. The same goes ient clinics continu dia, 1500 Paxton St., Harrisburg, PA 171 be r sell shares of their fu- has already begun. cery store they feel they have to get produce Wernersville, an organic dairy farm. For the sake of the health and wellness of plans, including Aetna, Capital Blue paid at Harr nic ACS S - in rental rates once construction is complet Community First Fund, which did not receiveshare and improve their Jeffrey If the buyer decides to maintain both ment assets and face penalty taxes for the best option. When experts are engaged company segments and offer content our commonwealth, I hope my colleagues in age is- After being shut out in the last fund - ture crop to the con- Customers pick and bread … we want them to think of fine Greg Stricker, a partner in Spring Creek, for any topic: if it’s strictly about one thing, Cross R: Electro rnal cannot - ed. The New Markets program takes private meant to engage the group – ask ques - Harrisburg listen to our physicians and their MASTE ness Jou but the ac y into gap financing to hel tax credits this year but has its own backlogbusiness models. plans, the newly acquired employees can early distribution. from the start, they can help ensure the the business might lose the interest of its Plan for all services. Changes in the ble, d. ing round in 2017, Central Pennsylvania will said he pays special attention to the milk he patients and reject this tax. - to: SubscriptionPe nnServices, Busi PO Box 1051, Williamsporte PA relia 17703-9940antee share of 2018ing fromtax credits a federal under program a equity frommone investors, usually banks, and sumers, who then Honey-Bell is a brie-style cheese made by up their orders at cheese like that, not as a luxury.” tions whole audience. , H ral b nd of projects. Throughout the M&A either be offered the same benefits they The final option – merging the seller’s transition is smooth and employees have their relationship between Highmark Cent ot be guar for the receive a of fu challenge., p - ig unsolicited material withco ornsidered without to the inclusion ofion a urns that The two midstate nonprofits have part - pick up weekly or Stefanie Angstadt in her Oley creamery. participating loca- Miller sees the craft cheese industry produces for Angstadt. ost a quiz or host a ‘meet this goal’ - State Rep. Greg Rothman (R) represents the 87th hmark and UPMC Health rn of es itat t process, executives are hyper-focused had previously, or a new formula for their and buyer’s plans – requires that both a clear understanding of the benefits with Interna patient and UPMC in the greater retu a solic new round PHOTO/SUBMITTED House District, which is in Cumberland County. e t developers offset some of the construction monthly boxes of the tions. Most are busi- growing in much the same way the craft beer “I always try to make the highest-quality health and wellness can make or break pro Pittsburgh and Erie areas will not stamped, self-addressedhered from sourcreturn envelope. constitutes Information in this publi nered on tax-credit projects in the past,on company synergies and big-picture employer benefits. Maintaining both plans plans be the same type and have a similar their new employer. - l c o gat designed to support large urban redevelop farmers’ latest crops, nesses that focus on industry has developed and grown, with milk, but we try to concentrate on making a gram participation.ommunicati Get together with HR, affect the relationship between cation is ed herein costs and keep rents in line with what a local including the redevelopment of the former s as well. express goals. As a result, one very important fac- can provide employees continuity of ben- plan design. This option can be efficient An organization’s retirement plan leade curacy and completeness of the information cann ment projects: the New Markets Tax Credit. real estate market can support. sharing both the risk and the rewards of the local craft foods and products like farm those in the industry working cooperatively milk that is higher in protein and butter fat UPMC Pinnacle and Highmark. The U.S. Treasury Department last month Bulova building in Lancaster. Commonwealthtor often goes overlooked – the employer’s efits with no impact to the buyer’s retire- and cost-effective – one benefit structure, should be a consideration from the early storm thership best ways to get the messageons centered out. around No information The investorst against receive their tax federal credits income in return, farmers’ season and giving those farmers a stands or craft brewers, which support “buy instead of competitively to boost the entire to make her cheeses,” Stricker said. - tone Group, based in Cornerstone poured $10 million in tax cred 516.222.1199 • [email protected] • bankruptcylawli.com and retirement plans. There are many details ment plan. However, operating multiple one plan to operate – and it also avoids the stages of an M&A. Though the evaluation Disability Claims - We look forward to continuing awarded $55 million inne taxrs credits to the more reliable source of income. local” efforts. industry by sharing tips and efforts. Stricker said the extra money a cheese- a few employees to brain • to care for all of our patients in Cor which coun its into the project, while Community First Julie to consider when acquiring a company. plans can be burdensome and expensive, negatives of plan termination. process can be lengthy, it’s better to an- Lando is the owner and president of GRIT 2019 and beyond. To learn more Pennsylvania Housing Finance Agency’s taxes. - added another $8 million. “My job was to buy products from dozens Having a variety of pickup locations in “It’s the whole ‘a rising tide raises all maker like Angstadt is willing to pay repre- Marke nding Understanding the seller’s retirement plan and nondiscrimination testing is needed if The risk associated with merging are the ticipate issues that could arise, instead of tions firmtin with offices in York and Lancaster. about Commonwealth id the fu Investors can receive credits totaling 39 Folmer said project announcements could of local farmers,” Jones said. the region helps the Collective’s members ships’ kind of thing,” she said. “We all benefit sents a needed boost for small farms like his. g Group, a marketing and communica - r sa • UPMC doctors and hos Harrisburg. and how it will fit within the current ben- employees are receiving different benefit unknown factors of the seller’s plan. Has it realizing them in the midst of the merger full percent of their investment. They can use the come this fall. She was looking to take her CSA skills spread their cheese sales farther than they from a stronger cheese industry.” “It’s a huge benefit to us when a local - our toll-free help line at 1-833- - Commonwealth Cornerstone’s executive efit structure is vital to success. packages. always operated in compliance with all the when it might be too late. , in-network access to Charlotte Folme credits over seven years as such: 5 percent and use them in a new way. She thought of could on their own. Jones said the trio is focused on being a business like that uses our product,” he said. 879-5013 or visit UPMC.com/ - director per year for the first three years and 6 per If retirement plans are not considered If the buyer is going to terminate the complex rules associated with retirement • Angstadt and another cheesemaker she had Subscriptions can be picked up in two regional leader in the craft cheese industry. “It’s essential to find someone making a Choice2019. will help the nonprofit tackle a hefty pipeline- cent for the next four years. upfront, executives may learn that the ac- seller’s plan, this decision should be made plans? If not, the buyer’s plan would be at John Jeffrey is a consulting actuary, specializing < met in her old job: Sue Miller of Birchrun Berks County locations — Hidden River They aren’t planning any major expansion. higher-end product to compete.” of projects seekingve over 40funding. projects requesting Folmer said it will be several weeks until quired company has an underfunded pen- and the process initiated before the com- risk. in retirement plan consulting and post-employ- - estion, please call the We ha www.libn.com The Central Penn Business Journal will cor “ Philip W. Guarneschelli, pitals, call Commonwealth Cornerstone receives its sion plan – which can be a deal breaker panies merge. If the acquired company’s Before deciding how to handle the sell- ment health care benefits, for Conrad Siegel, President and rect or clarify mistakes made in the publica over $700 million,” she said, noting that the – or that the seller’s 401(k) plan does not 401(k) is terminated after the transaction, er’s retirement plan, the buyer will need which is based in Susquehanna Township, tion. If you have a qu UPMC Pinnacle requests come from across the common meet compliance standards. the seller’s employees will face a one-year to perform exhaustive due diligence. This Dauphin County. wealth. Folmer said she hopes the tax credits will CEO • Disability and ERISA Litigation be able to support about seven projects this • Lump Sum Settlements OFFICE SPACE

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