2015 Distinguished Pro Bono Service Award Recipients Presented by the Volunteer Lawyers Project of Onondaga County

ONONDAGA COUNTY BAR ASSOCIATION

VOLUME 60 NUMBER 5 | May 2015

CNY Philanthropy Center | 431 East Fayette St. | Syracuse, NY 13202 | Phone: 315-471-2667 2015 Distinguished Pro Bono Service Award Recipients Presented by the Volunteer Lawyers Project of Onondaga County

Sally Curran, Esq. Executive Director, From left to right: Briana Fundalinski, Esq., Marion Hancock Fish, Anthony Marrone, Esq., and Volunteer Lawyers Project with Leslie Esq., Joseph Bergh, Esq., Nolan Lafler, Esq., Karla Corpus, Esq., Samantha Aguam, Esq., OnVLP Staff Bowser, Esq. Sharon Ames, Esq., Hon. George Lowe, Alex Davidson, Esq. and Attorney Brian LaClair, Esq. This year’s recipients and the area for which they were The Volunteer Lawyers Project of Onondaga County honored are: recognized the work of eleven outstanding volunteer attorneys and one law firm at the organization’s Volunteer Sharon Ames Immigration Law Appreciation and Recognition Party. The awards were Joseph Bergh Eviction & Most Overall Hours presented on Wednesday, June 3 at the CNY Philanthropy Leslie Bowser Talk to a Lawyer Clinic Center. Karla Corpus Family Law Additionally, OnVLP recognized Emilee Lawson-Hatch, who Alex Davidson Veteran Law received the NYSBA President’s Pro Bono Service Award for the Marion Hancock Fish Nonprofit Law 5th Judicial district in May. Briana Fundalinski Nonprofit Law These generous attorneys work tirelessly to ensure that those in need receive legal representation, information and assistance. Anthony Marrone Surrogate’s Court We salute their dedication and spirit of community. Matthew VanBeveren Medical Legal Clinic The mission of the Volunteer Lawyers Project of Onondaga Brian LaClair Unemployment Insurance County, Inc. is to expand access to justice by identifying and Nolan Lafler Unemployment Insurance meeting the unmet civil legal services needs of low income Bond, Schoeneck & King Law Firm w/ Most Overall Hours people in Onondaga County through increasing the pro bono More information about the organization, its volunteers and participation of the legal community. services can be found at www.onvlp.org.

UPCOMING JUNE EVENTS: MISSION : To maintain the honor and dignity of YLS Reception at Small Plates Thursday | June 18 the profession of law, to cultivate social Enhanced Earnings CLE Friday | June 19 discourse among its members, and to increase its significance in Animal Advocates CLE Tuesday | June 23 promoting the due administration of Jury Selection CLE Thursday | June 25 Justice. From the President: Dear Friends, This past month, we had the pleasure of honoring newly appointed Court of Appeals Justices Leslie E. Stein and Eugene M. Fahey at a wonderful event held at the Woodcliff Hotel in Fairport, New York on May 20, 2015. What made this event special was that it was co-hosted by the Onondaga, Erie and Monroe Bar Associations as well as the New York State Academy of Trial Lawyers. It was a great opportunity to meet our colleagues from across Upstate New York and make new connections. Later that evening, I attended a dinner honoring Chief Judge Jonathan Lippman, who will be retiring at the end of this year. While addressing his guests, Judge Lippman talked about his long and stellar career and his experiences in the court system. It was clear those experiences are why Judge Lippman has been a leading advocate in the pursuit for access to justice for both criminal and civil cases. We certainly wish him well as as he nears the end of his term. Later this month, the New York State Bar Association will be holding its House of Delegates annual meeting in Cooperstown, New York on Saturday, June 20, 2015. On the agenda for the meeting is the installation of David P. Miranda, Esq. as the new president as well as several committee reports, including the Committee on Re-Entry and Committee on Women in the Law. Another report that will be presented is “Social Media Ethics Guidelines”, which was developed by the Commercial and Federal Litigation Section. All three are relevant and current topics that I look forward to hearing more about. If you would like a copy of any of these reports, please contact the OCBA office. Looking forward, we have some great events planned in the upcoming months. The Young Lawyers Section will be hosting a reception at Small Plates on Thursday, June 18, 2015. Please make a note on your calendar to stop by and meet the energetic members of this section. On July 7, 2015 they will also be hosting a CLE and reception on the Loggia located on the second floor of the CNY Philanthropy Center. With the warmer weather, what better way to spend a couple of hours and earn those CLE credits! Last, OCBA is always looking for unique and exciting CLE presentations and presenters. Do you have special knowledge in a particular area of law? Would you like to share that knowledge and earn CLE credits at the same time? If so, please contact our CLE Coordinator, Chele Stirpe at (315)579-2578. As we start our summer here in Central New York, I wish you health and happiness!

Regards, Jean Marie Jean Marie Westlake | OCBA President [email protected] Telephone: (315) 479-9000

2015 OCBA BOARD OF DIRECTORS

President Immediate Past President Romana A. Lavalas Jean Marie Westlake Nicholas J. DeMartino Scott A. Lickstein Hon. James P. Murphy President-Elect Executive Director Frank B. Pelosi Anne Burak Dotzler Jeffrey A. Unaitis Wendy S. Reese Aaron J. Ryder Vice President Directors James M. Williams Blaine T. Bettinger David M. Snyder Kimberly M. Zimmer Treasurer Bruce R. Bryan John T. McCann Joseph J. Bufano Ex Officio Sam Elbadawi Dean Hannah R. Arterian Secretary Paula Mallory Engel Mark W. Wasmund Deborah Sundquist O’Malley Danielle M. Fogel Stuart J. LaRose

2 VIEW FROM THE BENCH: A Sandoval Victory Lost and a Good Faith Basis Hon. John J. Brunetti There is an objection based upon the Sandoval ruling and the rule that, by taking the stand at trial, a criminal defendant Note: While the first part of this does not put his character in issue so as to allow proof of bad article is devoted to a criminal law character by the People3. issue, the second part is devoted to The correct ruling on these two arguments is “Overruled”! an issue that arises in both civil and Why? criminal cases. The defendant became his own character witness and thereby Most lawyers have either been opened the door to questioning that might otherwise have taught or intuitively concluded been precluded a result of his successful Sandoval motion. that accrediting a witness in the Who says so? The Third Department—twice—once for a beginning of direct examination is a bad act and once for a conviction. fundamental tenet of trial advocacy. Indeed, an article published by the Association of Trial In People v. Morehouse, the Court ruled that “[d]uring Lawyers of America asserts: “Always accredit your witness. defendant’s testimony, he attested to his good character by In addition to name and address, you may inquire into submitting his military service record. Therefore, he opened educational background; work history; health history; the the door to questioning concerning the prior bad act.” 4 names, ages, and school or work locations of family members; The Court cited People v. Jones,5 where “[a]fter a favorable military service; and club and organization memberships.” pretrial ruling on his Sandoval motion, the defendant took When it comes to a criminal defendant that has won a the witness stand and testified that while in the Marine favorable Sandoval ruling1, that would be bad advice. Corps, serving in Vietnam, he received [a variety of awards]”. Assume John Smith is on trial for burglary. At a pretrial The Court ruled that since the only purpose of the military meeting, the People express the intent to ask him about testimony was “evidence of good character,” the question by a criminal conviction for forgery in the third degree and the People, about the previously precluded conviction, was a prior bad act of beating his wife that did not result in an proper. 2 arrest. The court rules, pursuant toPeople v. Sandoval , that Proceedings in People v. Smith continue. the probative weight as to both topics is outweighed by its prejudicial effect. The court precludes their use during cross- “Counsel: Alright, judge, but I have another objection. examination of the accused. Court: Yes? When Mr. Smith takes the stand, assume that after he Counsel: There is no good faith basis for the question provides name, address, occupation, and family background, about the axe attack. the following ensues: Court: Very interesting!” Q. Have you ever served in the military? A witness in any civil or criminal case, whether a party or A. Yes. not, does not expose himself to cross-examination about a 6 Q. What branch? prior bad act unless the cross-examiner has a good faith basis7 to ask about it. The rule statement begs the question: A. Marine Corp. exactly what constitutes a “good faith basis” for asking a Q. What type of discharge did your get? prior bad act question on cross-examination? A. Honorable. The Court of Appeals tells us that the cross-examiner must have “some reasonable basis for believing the truth of During the middle of cross-examination, the prosecutor asks things [s/he is] asking about”,8 and that the judge makes the following question: that determination by ascertaining whether “the question Q. Isn’t it a fact that on April 30, 2015, you struck your pertains to an actual occurrence”.9 Examples of good faith wife with an axe? Continued on page 8

1People v. Sandoval, 34 N.Y.2d 371 (1974). 2People v. Sandoval, 34 N.Y.2d 371 (1974). 3People v. Nuzzo, 294 N.Y. 227, 233 (1945)[“A defendant does not “put his general character in issue by taking the stand unless he introduces affirmative proof of good character.”]; People v. Kuss, 32 N.Y.2d 436, 443 (1973)[“Whether the defendant’s character will become an issue in the trial is the defendant’s option, for until he introduces evidence of good character the People are precluded from showing that it is otherwise.”]. 4People v. Morehouse, 5 A.D.3d 925, 928 (3d Dep’t 2004). 5People v. Jones, 121 A.D.2d 398, 399 (1986). Conviction. 6People v. Sorge, 301 N. Y. 198, 200; People v. Webster, 139 N. Y. 73, 84. 7People v. Greer, 42 N.Y.2d 170, 176 (1977)[“Scarcely necessary for repetition is the rule that a defendant who chooses to testify may be cross examined concerning any immoral, vicious or criminal acts of his life which have a bearing on his credibility as a witness, provided the cross examiner questions in good faith and upon a reasonable basis in fact.”]. 8People v. Alamo, 23 N.Y.2d 630, 633 (1969). 9People v. Alamo, 23 N.Y.2d at 633, citing 3 Wigmore, Evidence [3d ed.], ‘ 988 and Fisch, New York Evidence, ‘ 178, p. 94. 3 WANTED: ATTORNEY ADVOCATES FOR ABUSED ANIMALS

Oftentimes a severely physical abused animal must remain in a safe and secure environment, regains health while confined in an animal shelter or hospital recovering from in a medical facility, and when appropriate, to seek the its injuries while and until the criminal case, which it is surrender of ownership from the defendant. In addition, the subject of has been resolved. While the criminal case the volunteer attorney will also work cooperatively with is pending, the defendant/owner maintains “ownership” law enforcement, veterinary professionals and members rights of the abused animal. of the local animal advocate organizations, to assist with In an effort to address this problem, the OCBA, in potential fostering, aftercare and adoption. partnership with the Animal Abuse Task Force of If you are interested in participating in this CNY, the Onondaga County District Attorney’s volunteer pilot program, you must first Office and the Syracuse City Court has complete the training seminar, which is being created the volunteer “Animal Advocate” Pilot provided by the OCBA at the CNY Philanthropy Program. Center second floor ballroom, on Tuesday, The objective of this program is to establish June 23, from 12:00 to 2:00 pm. As a bonus 2 a group of trained volunteer attorneys who hours of CLE credit will be offered at no cost will work cooperatively with the Court, defense for those attorneys who enroll to participate in attorney, and district attorney on behalf of a the program. physically abused animal in Syracuse Animal Abuse Topics will include an explanation of the program Court, and when appropriate, seek the termination of and of Animal Abuse Court, how an animal abuse case is ownership rights from an abusive owner and then assist investigated by the Syracuse Police Department and how with fostering and adoption of the abused animal. veterinary hospitals care for and treat abused animals. The volunteer attorney’s role would be to work If you are interested, please enroll using the form on page cooperatively with the Court, the defense attorney and the 19 of this newsletter or online at http://www.onbar.org/ District Attorney to ensure that the abused animal remains cle-programs/. For more information call 315-579-2578.

The University Building APPEALS Civil, Criminal, Administrative Referrals Welcome (315) 474-1285 John A. CIRANDO Attorney at Law

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4 Criminal Case Notes Bradley Keem, Associate | D.J. & J.A. Cirando APPELLATE DIVISION | FOURTH DEPARTMENT Expert Testimony Consecutive/Concurrent People v. McCullough, KA-11-01614, 3/27/15 – In People v. Brahney KA-13-01456, 3/20/15 – Defendant unlawfully accordance with People v. LeGrand (8 N.Y.3d 449), entered the home of his former girlfriend and their three-year-old son when determining whether expert testimony on while they were asleep, and stabbed his former girlfriend 38 times, eyewitness identification is appropriate, the trial court must first decide causing her death. whether the case turns on the accuracy of eyewitness identification, As part of defendant’s sentence, it was directed that the two counts and whether there is corroborating evidence connecting defendant convicting him of Burglary in the First Degree would run concurrently with the crime. Then, the second part of the inquiry asks the trial court with each other, and consecutively to the conviction of intentional to determine whether the proposed testimony is: (1) relevant to the murder. The majority determined that such a sentence was appropriate witness’s identification of defendant; (2) based on principles that are because the evidence established that after defendant entered the generally accepted within the scientific community; (3) proffered by a apartment through a window that he smashed with a cinder block, qualified expert; and (4) on a topic beyond the ken of the average juror. he dragged the victim from her bed and down the stairs to the living In regard to the first part of the inquiry, the People acknowledged that room, where he killed her. The majority stressed that while some the instant case hinges on the accuracy of the eyewitness’s identification blood was upstairs, indicating a struggle occurred, a tremendous of defendant, and the Appellate Division agreed with defendant that amount of blood was located downstairs indicating that it was there there was little or no corroborating evidence connecting him with that defendant killed her. Accordingly, the majority determined that the crime. In regard to the second part of the inquiry, the Appellate defendant’s acts were sufficiently separate and distinct acts to support Division determined that the proposed testimony satisfied the criteria consecutive sentencing. for admissibility of expert proof. Under such circumstances, therefore, the judgment of conviction was The dissent, however, explained that since it could not determine that reversed, and a new trial was ordered. the Burglary and Murder offenses were separate and distinct because Fair and Impartial Jury it was possible that, considering the former girlfriend’s blood was found upstairs and on the staircase, that the stab wound the former People v. Strassner, KA-10-01374, 3/20/15 – During voir dire, the girlfriend suffered upstairs may have ultimately caused her death, and statements of three prospective jurors with respect to the credibility of thus concurrent sentences were required. the testimony of police officers or bias in favor of the police cast serious doubt on their ability to render an impartial verdict. The jurors failed People v. Brooks KA-08-00031, 2/6/15 – The Record was silent as to to provide unequivocal assurance that they could set aside any bias and whether the sentence was to run consecutively to another sentence, render an impartial verdict. Specifically, the three jurors “nodding” and thus the matter was remitted for resentencing. as part of a group of prospective jurors who were “all nodding Criminal Procedure Law Article 440 Hearing affirmatively in regard to the statement [of another prospective juror]” People v. Martinez, KA-13-02053, 3/20/15 – The trial court denied was insufficient to constitute an unequivocal declaration. defendant’s Criminal Procedure Law §440.10 Motion to vacate the Therefore, since defense counsel had exhausted his peremptory judgment of conviction for the crime of Rape in the Third Degree. challenges prior to the completion of jury selection, the denial of Defendant’s Motion contained an Affidavit of his daughter, the victim, defendant’s challenge for cause regarding the three jurors necessitated in which she recanted her accusations against defendant. The Affidavit a new trial. of the daughter claimed that the daughter made the accusations Felony Murder to ensure that she would live with her maternal grandmother. The Affidavit also indicated that the maternal grandmother advised the People v. Davis KA-13-01176, 3/27/15 – Defendant and his daughter to make the allegations. Though the trial court found that accomplices entered into the apartment of the victim, who was 41 the recantation was inherently unbelievable, based on the totality of years old, overweight, and suffered from heart disease. While inside, an the circumstances, including the essential nature of the daughter’s altercation took place in which the victim suffered a fatal heart attack. testimony against defendant at trial, such a finding was unwarranted Defendant left the apartment with a bag of stolen property. During the in the absence of a Hearing. The matter was therefore remitted for such altercation, the victim sustained a broken jaw, lacerations to his face, a Hearing. and abrasions to his elbow and knees. The autopsy concluded that the victim died from “Hypertensive Cardiovascular Disease, with obesity People v. Wilkens, KA-13-00189, 3/20/15 – Defendant, in a Criminal being a contributing factor. Procedure Law Article 440 Motion, asserted that his judgment of conviction for the crime of Depraved Indifference Murder should Under the circumstances, defendant did not cause the death of the be vacated. Defendant asserted that the common law definition of victim. The Appellate Division stressed that the injuries inflicted upon “depraved indifference” was changed in his favor by the Court of the victim by the defendant were not life threatening. Notably, the Appeals before his judgment became final. County Court denied the Appellate Division relied on the fact that the Chief Medical Examiner Motion without a Hearing. did not testify that defendant’s culpable act was a direct cause of the death or that the fatal result was reasonably foreseeable. Defendant shot a man after arguing over whose team would play the Jury Note next game of basketball. People v. Garrow, KA-12-00111, 3/20/15 – The trial court violated the The judgment of conviction became final with the Court of Appeals core requirements of Criminal Procedure Law §310.30 in failing to denial of leave to appeal on November 2, 2004. The law of depraved advise counsel, on the Record, of the contents of a substantive jury indifference, however, changed on Ocotber 19, 2004 when the Court note before accepting a verdict. Moreover, despite defense counsel’s of Appeals decided in People v. Payne (3 N.Y.3d 266), that absent failure to object to the error because the error involves the mode of unusual circumstances, “a one-on-one shooting or knifing (or similar proceedings preservation is not required. killing) can almost never qualify as depraved indifference murder”. Accordingly, the matter was remitted to for a ruling on the merits of People v. Harvey, KA-11-01211, 1/2/15 – The plea colloquy was defendant’s Motion. Continued on page 10 5 6 7 A Sandoval Victory Lost and a Good Faith Basis from page 3 bases include questions based on sworn testimony,10 and, on the merits20 may not be asked about-- a good faith basis is by extension, a description of an act alleged under oath or deemed eliminated by both. Counsel seeking to impeach the under penalty of a false statement prosecution. Thus, an witness by inquiring into an alleged bad act which was the subject act recounted in an affidavit, verified civil complaint, or in of a criminal prosecution carries the burden of establishing that the witness was not acquitted and that a dismissal was not on the a police report of an interview of a person who reported an 21 11 merits. If counsel sustains that burden (notwithstanding sealed incident would provide a good faith basis for asking about 22 23 it, but the mere existence of a federal lawsuit naming the record provisions), inquiry will be proper. witness without a specific allegation of misconduct would There are only three types of final dispositions of criminal cases: not.12 However, case law is more liberal on this point. First, conviction, acquittal and dismissal. Unlike a conviction and an “there is no requirement that the [cross-examiner’s] good acquittal, a dismissal is often an “unexplained termination”24 that faith basis stem from evidence in admissible form.”13 Second, provides no basis for determining whether the reason for the dismissal “bespeaks the absence of a reasonable basis for believing an unsworn disciplinary letter addressed to a witness by an 25 employer fits the bill for a good faith basis.14 the truth of the charge.” Thus, the Court of Appeals has ruled that a witness may not be asked about acts underlying a charge that What does not constitute a good faith basis for a prior bad was dismissed at the close of the People‘s case,26 yet may be asked act question? One for which the judge rules that have there is about an incident presented to a grand jury that did not result in an no “reasonable basis for believing the truth of things [counsel indictment.27 A criminal charge that was dismissed in satisfaction is] asking about”, 15 because the judge is not satisfied that “the of a guilty plea to an unrelated charge would not seem not to be a question pertains to an actual occurrence”. 16 Examples include dismissal on the merits28 nor would or a dismissal in the interests an act verbally attributed to the accused by unnamed residents of of justice or an adjournment in contemplation of dismissal which a housing project17 and an act of misconduct at a school which leads to a dismissal was not sufficiently documented so as to satisfy the judge that the 18 Let’s return to our scenario involving Mr. Smith. A police report of incident actually occurred. the incident recounting the spouse’s allegations of assault would be When it comes to criminal charges that did not result in a enough for a good faith basis, but a mere unsworn verbal statement conviction, the waters get a bit murky. As a general rule, a charge made by the spouse to the cross-examiner might not, depending on for a criminal act that resulted in either an acquittal19 or a dismissal the judge’s discretion of course!

10People v Montgomery, 216 A.D.2d 332 (2d Dep=t 1995)[“The challenged questions were based on information derived from the Grand Jury proceedings. Therefore, the prosecutor had a good faith basis for asking them.”]. 11People v. Grant,186 A.D.2d 267 (2d Dep’t 1992)[“The questions posed concerning the gasoline station attendant were predicated upon a police report reciting the attendant’s recollections that a man matching the defendant’s description had purchased gasoline in an anti-freeze container near the scene of the fire shortly before the conflagration erupted. Likewise, a police report also indicated that the defendant was acquainted with a local livery cab driver and thus, a goodfaith basis existed for the prosecutor’s questioning concerning an alleged encounter between the defendant and this driver following the fire.”]. 12People v. Andrew, 54 A.D.3d 618 (1st Dep’t 2008)[“The mere existence of the federal litigation was not a proper subject for cross-examination and the defense failed to establish a good faith basis for eliciting the underlying facts as prior bad acts as the complaints and amended complaints in the federal actions did not allege, or even support an inference, that this detective personally engaged in any specific misconduct or acted with knowledge of the misconduct of other officers.”]. 13People v Sealy, 167 A.D.2d 362 (2d Dep=t 1990). 14Winant v Carras, 208 A.D.2d 618 (2d Dep=t 1994)[“The plaintiff claims that it was reversible error for defendant Epstein’s counsel to question the plaintiff’s expert during cross examination with respect to the expert’s alleged drug addiction which, it was contended had caused his employer to suspend his clinical activities. The questions, which were asked in good faith and based on a letter by the expert’s employer, were properly used to cross examine the expert with regard to inconsistent statements and his character in general.”]. 15People v. Alamo, 23 N.Y.2d 630, 633 (1969). 16People v. Alamo, 23 N.Y.2d at 633, citing 3 Wigmore, Evidence [3d ed.], ‘ 988 and Fisch, New York Evidence, ‘ 178, p. 94. 17People v Hargrove, 213 A.D.2d 492 (2d Dep=t 1995)[“[D]efense attorney’s offer of good faith for seeking responses to the questions which he was precluded from asking, was that he had been told by some residents of the housing project where the witness resided that the witness had previously dealt in stolen goods. The information allegedly obtained from people in the housing project constituted hearsay, and the trial court did not improvidently exercise its discretion in precluding questioning on the subject.”]. 18People v. Colas, 206 A.D.2d 183 (1st Dep=t 1994)[Prosecutor Aphrased her questions to defendant to suggest that he ‘grabbed a woman’@, who was a fellow student at a school he attended, and ‘dragged’ her ‘to a spot further down in the hallway to a corner in a secluded part of that hallway’...... Discussion at a Bench conference reveals that no arrest resulted from this asserted assault. The school never reported it, and it was unknown whether any internal disciplinary action was taken against defendant as a result. Finally, the court was told that the alleged victim had no recollection of the incident, which was recounted to an investigator by an administrator at the school.”]. 19People v. Alamo, 23 N.Y.2d 630, 633 (1969.People v. Schwartzman, 24 N.Y.2d 241; People v. Booker, 134 A.D.2d 949 (4th Dep’t 1987). 20People v. Steele, 168 A.D.2d 937, 938 (4th Dep’t 1990)[“An acquittal of the witness or a dismissal on the merits negates the good-faith and basis-in-fact requirements .”]. 21People v. Plaisted, 2 A.D.3d 906, 908 (3d Dep ‘t 2003)[“Here, because defense counsel failed to “demonstrate that the absence of convictions for those alleged crimes was for any reason other than an acquittal or dismissal on the merits,’ we agree with County Court’s determination that the subject questions were improper.”]; see also People v. Grant, 291 A.D.2d 912 (4th Dep’t 2002); People v. Stabell, 270 A.D.2d 894 (4th Dep’t 2000). 22CPL 160.50 for dismissals and acquittals; CPL 160.55 for non-criminal convictions. See also People v. Hunter, 88 A.D.2d 321 (2d Dep’t 1982)[“We hold that where inquiry discloses that the basis for impeachment of a witness by interrogation concerning prior criminal, vicious, immoral or wrongful acts involving moral turpitude is the improper inspection and use of police records made confidential by section 784 of the Family Court Act, the Judge presiding at the trial should inform the witness that the source of the cross-examiner’s question is privileged from disclosure and that he or she may either waive the privilege and consent to answer the questions or may refuse to waive it, in which event the jury must be instructed to disregard the questions.”]. 23People v. Matthews, 68 N.Y.2d 118, 123 (1986)[inquiry proper where charge “was not finally dismissed on the merits”]. 24People v. Vidal, 26 N.Y.2d 249, 253 (1970[“The otherwise unexplained “termination” of the assault charge is not an acquittal, which bars cross-examination of the underlying acts.”]. 25People v. Korn, 40 A.D.2d 561 (2d Dep’t 1972). 26People v. Vidal, 26 N.Y.2d 249, 253 (1970[“Nor is a ‘termination’ necessarily tantamount to an acquittal, as is, for example, the dismissal of a case at the close of the prosecution’s case.”]. 27People v. Alamo, 23 N.Y.2d 630, 633 (1969)[[T]he failure of the Grand Jury to indict defendant for the taxicab robberies did not make it improper for the prosecutor to question defendant as to the underlying fact.”]. 28People v. Steele, 168 A.D.2d 937, 938 (4th Dep’t 1990)[“The record reveals that the charges against Ridgeway were dismissed and that the dismissal was not the result of a plea bargain or the grant of youthful offender treatment. Defense counsel was unable to establish that the dismissal was not on the merits, and thus, failed to establish a factual or good-faith basis for further inquiry. The trial court, therefore, did not abuse its discretion in restricting that line of questioning.”].

8 Report from NYSBA: Uniform Bar Exam Will Replace New York Bar Exam New York will adopt the Uniform Bar be administered in July 2015. He set a Nov. 7, 2014 deadline Exam beginning in July 2016, Chief Judge for submitting comments on the proposal. After the State Jonathan Lippman has announced. Bar November 1, 2014 House of Delegates on Nov. 1 called for The decision by the state Court of Appeals, additional time to study the plan, he agreed not to implement the which oversees admission to the bar, exam in 2015. He also extended the comment period to March 1, makes New York the largest of 16 states 2015, created a study committee and held public hearings. requiring applicants to pass the Uniform “We raised a lot of concerns about the importance of testing on Bar Exam (UBE). In addition, New York knowledge of New York law. We had a lot of questions. We had a applicants will be required to take an online full hearing,” said State Bar President Glenn Lau-Kee, adding the New York law course and pass a separate Association will monitor the new licensing process. multiple choice exam with 50 questions “Our big issue continues to be how to make sure that new specific to New York law. attorneys are prepared to practice law in New York--both for the In his Law Day address on May 5, the chief judge said the change protection of the profession and the protection of the public,” he ushers in “a new era of licensing lawyers to meet the challenges added. of our global world,” making it easier for attorneys to be admitted For more information about the new UBE rule: to practice in multiple states. “While the legal community has • Order amending court rules @ http://www.nycourts.gov/ adapted to the reality of multi-jurisdictional and cross-border ctapps/news/nottobar/nottobar050515.pdf practice, the licensing process for attorneys in the United States • Report of the Court’s Advisory Committe on the Uniform Bar has not.” Exam @ http://www.nycourts.gov/ip/bar-exam/ Chief Judge Lippman originally proposed that the first UBE exam NEW YORK STATE COMMISSION ON JUDICIAL NOMINATION

The New York State Commission on Judicial Nomination practice in New York State for at least ten years. The Governor’s announced that it is seeking recommendations and applications appointment is subject to confirmation by the New York State of persons who may be qualified to serve as Chief Judge of the Senate. State’s highest Court, the Court of Appeals of the State of New As part of the Commission’s process of identifying and York, as well as Chief Judge of the State of New York. On January 1, nominating potential candidates, it will conduct one or more 2016, a vacancy will exist due to Chief Judge Jonathan Lippman’s public informational meetings to discuss the requirements for mandatory retirement by reason of age. Under the Constitution the position and the Commission’s procedures and rules for of the State of New York, Judges of the Court must retire at the submitting recommendations for qualified candidates. The end of the year in which they turn seventy. meeting(s) will be open to the public, and all are encouraged Candidates for Chief Judge Lippman’s vacancy may download an to attend and express their views (orally or in writing) about application from the Commission’s website: community needs, the general qualifications for judicial office, www.nysegov.com/cjn or contact the Commission’s Counsel: and the nominating process. The Commission will shortly Henry M. Greenberg, c/o Greenberg Traurig, LLP circulate further information regarding any such meetings. 54 State Street, 6th Floor, To fill past judicial vacancies on the Court, the Commission has Albany, New York 12208 nominated to the Governor a wide variety of lawyers, including [Tel.: (518) 689-1492 private practitioners, public interest attorneys, law professors, e-mail: [email protected] government officials and sitting Federal and State judges. Fax: (518) 689-1499]. While prospective candidates must file an application with the Applications may be filed electronically by e-mailing them to Commission, recommendations may be made by anyone who [email protected] or submitted by mail to the believes that a prospective candidate could be an excellent Commission’s Counsel. Chief Judge of the Court of Appeals and the State of New York. Applications must be submitted to the Commission no later Recommendations of qualified candidates for a vacancy are than July 13, 2015. encouraged and may be made to the Commission’s Counsel. The Commission was created by Article 6, § 2 of the New If any person or organization wishes to receive copies of future York State Constitution. Consistent with its mandate, the Commission press releases, please provide an e-mail or mailing Commission is entrusted with responsibility for evaluating, and address to the Commission’s Counsel. The Commission will then recommending to the Governor, candidates to fill vacancies register the address and make every effort to distribute future on the Court of Appeals. The Commission vigorously seeks out, press releases in the designated manner. carefully evaluates and then shall nominate to the Governor Persons interested in learning more about the Commission are seven well-qualified candidates for the office of Chief Judge from encouraged to visit its website: www.nysegov.com/cjn. the extraordinary, diverse community of lawyers admitted to 9 created, especially considering the sexual nature of the instant charge. The Criminal Case Notes from page 5 prosecutor’s inquiry, concerning a sexual practice that is not a crime, had no logical bearing on the question of credibility. APPELLATE DIVISION | FOURTH DEPARTMENT Motion to Withdraw Guilty Plea Moreover, the prosecutor improperly bolstered her case by only People v. Days, KA-12-00113, 2/13/15 – County Court, who did not questioning an officer regarding how young people reveal details about preside over the original guilty plea, verbally inquired into some of the alleged sexual abuse, since such testimony was equivalent to an opinion claims contained in defendant’s Motion to Withdraw his Guilty Plea. that defendant was guilty. Finally, the prosecutor improperly elicited Overall, however, the court was not sufficiently familiar with the case to testimony that defendant lived with individuals with criminal records, make an informed determination as to the Motion. Therefore, the matter and that defendant previously bailed his roommates out of jail or hired was remitted to adequately afford defendant an opportunity to present his them an attorney, which encouraged the jury to find defendant guilty by contentions in regard to his Motion to Withdraw his Guilty Plea. association. Therefore, the judgment of conviction was reversed, and a new trial was ordered. People v. McDonald, KA 14-00040, 2/6/15 – Matter was remitted due to the failure of the trial court to rule on a Motion to Withdraw defendant’s Request for Replacement Counsel Guilty Plea. The failure to rule on such a Motion cannot be deemed a People v. Gibson, KA-09-00395 3/20/2015 – One month prior to trial, denial thereof. defendant requested replacement defense counsel in a letter to the trial court. Two weeks later, defense counsel moved to withdraw as assigned Persistent Violent Felony Offender Hearing counsel, stating he could no longer effectively communicate with People v. Vanhooser, KA-12-00729, 3/27/1 – Defendant admitted that defendant. At a subsequent court appearance, defense counsel repeated he was convicted of two prior violent felonies, but objected to the tolling that their last meeting was “antagonistic.” Defense counsel called his periods computed by the County Court, and thus requested a Persistent Motion request a “drastic measure,” and noted that he never before made Violent Felony Offender Hearing. The trial court discussed the matter such a request. with defendant, and thereafter defendant conceded that the trial court’s computations were correct, waiving the necessity for a Hearing. The trial court denied the request, stating that a lack of communication does not constitute good cause for the appointment of substitute counsel During the conversation, however, the trial court improperly indicated that especially where the source of communication difficulties lies with the request for a Hearing was a violation of the plea agreement. The trial defendant not defense counsel. Such a denial was erroneous because court never advised defendant during his plea that admitting to Persistent a complete breakdown in communication was established. Moreover, Violent Felony Offender status was a condition of the plea agreement. there was no support on the Record for the trial court’s assertion that the Thus, the matter was remitted for resentencing following a Hearing where reason communication broke down between the parties was solely based the People will have the burden of proof of establishing that defendant is a on defendant’s conduct. Accordingly, the judgment of conviction was Persistent Violent Felony Offender. reversed, and a new trial granted. Post-Release Supervision Restitution People v. Lassalle, KA-07-00713, 3/20/2015 – Informing the defendant People v. Johnson, KA-13-01618, 2/6/15 – Defendant contended that the that a period of post-release supervision could be imposed as part of a trial court erred in ordering $7,378 in restitution to be paid to the Genesee maximum sentence does not establish that defendant was aware that the County Department of Social Services (DSS) for the cost of providing terms of his specific promised sentence included a period of post-release foster care for the victim. The foster care expenses were the result of the supervision. Accordingly, the judgment of conviction was reversed, and placement of the victim in the care and custody of the DSS pursuant to a defendant’s plea vacated. proceeding in Family Court, and thus DSS was performing its statutory Prior Bad Acts duty pursuant to Social Services Law §398 [2] [b]. While the legislature has People v. Gibbs, KA-11-00056 3/20/2015 – In a trial accusing defendant provided that certain governmental agencies and entities are entitled to of committing the crime of Predatory Sexual Assault Against a Child, restitution when performing their statutory duties (see Penal Law §60.27 the trial court improperly admitted evidence of prior bad acts of sexual [9]. [10], [13]), no such legislative intent exists to allow a finding that DSS abuse by the defendant against the victim’s mother and another woman. is a “victim” pursuant to Penal Law §60.27. The evidence was admitted as part of a recorded telephone conversation People v. Nelson, KA-11-01945, 2/13/15 – Despite defendant’s failure to between the victim’s mother and defendant. The trial court reasoned that preserve his challenge to the restitution amount, because the Record did the evidence was inextricably interwoven with the crime charged in the not include sufficient evidence to establish the amount of restitution, the Indictment. The evidence, however, was not explanatory, numerous, and Appellate Division elected to review the issue as a matter of discretion in could have been redacted. The prejudicial effect of the many references to the interest of justice. Upon such a review, the matter was remitted for a the prior bad acts outweighed any probative value and thus that evidence Restitution Hearing. should have been redacted. Therefore, a new trial was ordered. People v. Wilson, KA-11-00580, 2/6/15 – During the plea proceedings, Prosecutorial Misconduct defendant was not informed that restitution was part of the plea agreement. People v. Griffin,KA-10-02154, 2/13/15 – The prosecutor began Therefore, at sentencing, defendant should have been permitted the her summation by characterizing the People’s case as “the truth,” and opportunity to withdraw his plea. The matter was remitted to either denigrating the defense as a diversion. Later in the summation, the impose the promised sentence or to afford defendant the opportunity to prosecutor impermissibly shifted the burden of proof, repeatedly vouched withdraw his guilty plea. for the veracity of the complainant, and appealed to the sympathies of the jury by extolling the complainant’s bravery. In addition to the issues Second Violent Felony Offender at summation, the prosecutor asked improper questions and attempted People v. Nieves-Rojas, KA-13-01572, 3/20/2015 – Though defendant did to elicit irrelevant and inflammatory statements during her direct not properly preserve the issue, the Appellate Division exercised its interest examination of the People’s witnesses. Therefore, because prosecutorial of justice jurisdiction in finding that defendant was improperly sentenced misconduct permeated the instant trial, and the evidence was far from as a Second Violent Felony Offender inasmuch as the underlying predicate overwhelming, the judgment of conviction was reversed, and a new trial conviction, the New Jersey crime of Burglary in the Third Degree, is not ordered. the equivalent of a New York felony. The matter was, therefore, remitted for resentencing. People v. Scheidelman, KA-14-00815, 2/6/15 – At a trial in which defendant was accused of reaching into the pajama bottoms of young Selective Silence - COURT OF APPEALS boys, the prosecutor questioned defendant about his homosexuality. People v. Williams, No. 34, Court of Appeals, 4/7/15 Defendant was Specifically, the prosecutor inquired as to a past consensual relationship accused of sexual offenses. The prosecutor, during his opening statement, defendant allegedly had with the uncle of one of the complainants. Such improperly commented that defendant was selectively silent in regard to questioning’s probative value was far outweighed by the prejudice it Continued on page 11 10 or health or protracted loss or impairment of the function of any bodily Criminal Case Notes from page 10 organ.” whether he had sex with the victim. At trial, a police officer testified that The evidence at trial revealed the victim sustained a two to three inch defendant neither admitted nor denied having sex with the victim. Such laceration, which would leave a scar, that had to be closed by staples, evidence was improper because it allowed the jury to make unwarranted and caused swelling and bruising. The wounds were not so severe as to inferences of defendant’s guilt, prejudicing defendant. Accordingly, a new create a “substantial risk of death.” The wounds also did not amount to trial was ordered. “serious and protracted disfigurement” as the laceration did not alter the Sentencing - APPELLATE DIVISION | FOURTH DEPARTMENT victim’s physical appearance in a distressing or objectionable fashion. The People v. Graham, KA-10-02192, 2/13/15 – Defendant was convicted mere presence of a scar is insufficient to establish serious disfigurement. of the crimes of Arson in the First Degree. Due, however, to defendant’s Finally, the injury did not establish a “protracted impairment of health or lack of prior felony convictions, minimal damage caused by his conduct, protracted loss or impairment of the function of any bodily organ.” and the lack of injury to others, the sentence was reduced from an The evidence, however, was sufficient to support a conviction of indeterminate term of imprisonment having a minimum term of 25 years, ATTEMPTED GANG ASSAULT IN THE FIRST DEGREE because and a maximum term of life, to an indeterminate term of imprisonment defendant, while acting in tandem with three other individuals, who having a minimum term of 15 years, and a maximum term of life. were actually present, intended to inflict serious physical injury on the People v. Kelly, KA-13-00885, 3/20/15 – Although defendant waived his victim, but actually only inflicted physical injury. Therefore, the judgment right to appeal, such a waiver does not encompass his allegation that the was modified by reducing the conviction of GANG ASSAULT IN THE court improperly enhanced his sentence. Furthermore, despite defendant’s FIRST DEGREE, to ATTEMPTED GANG ASSAULT, and the matter was failure to object to the enhanced sentence or move to withdraw his plea, remitted for sentencing on that reduced count. the Appellate Division elected to exercise its interest of justice jurisdiction Sexual Gratification to review the issue. People v. Hoffert, KA-14-00714, 2/6/15 – The trial court erroneously As part of defendant’s plea, the trial court indicated it would sentence granted defendant’s Omnibus Motion seeking to dismiss the crime of defendant to a determinate term of imprisonment between one and three Sexual Abuse in the First Degree. During the Grand Jury proceedings, years. There was no indication that defendant violated any condition. the complainant testified that she previously was in a relationship with The trial court’s sentence, however, exceeded three years, and as such, defendant and that, on the day in question, defendant sent her text the matter was remitted for the trial court to impose a sentence within messages demanding to know whether she had another man at her house, the promised sentencing range or to afford defendant the opportunity to entered her house without her permission while she slept, choke and beat withdraw his plea. her, demanded to know whether she had recently had sex, and forcibly placed his fingers in her vagina after saying “I’m going to see if you had Serious Physical Injury sex.” People v. Armstrong, KA-11-00803, 2/13/15 – An element of GANG ASSAULT IN THE FIRST DEGREE is that the victim sustain serious Under such circumstances, the Grand Jury could have inferred that physical injury. Penal Law §10.00 [10] defines “serious physical injury” as defendant touched the victim’s vagina for the purpose of gratifying his “physical injury which creates a substantial risk of death, or which causes or the victim’s sexual desire. Whether a person is acting to please their death or serious and protracted disfigurement, protracted impairment Continued on page 12

Trust and Estate Associate

Bond, Schoeneck & King, PLLC is seeking an experienced associate-level attorney for its Trust and Estate Department in Syracuse, New York. A minimum of 4 years relevant trust and estate work experience, focusing on elder law matters, is desired. Applicants must have

excellent academic credentials and communication skills. Compensation commensurate with relevant experience and Fallon, Fallon & Bigsby credentials.

We are an EEO employer.

Please send cover letter and resume Workers Compensation Law Offices and Social Security

to:

[email protected]. (315) 475-4410

501 East Washington Street, Syracuse, New York 13202

11 defendant’s hand was in his pocket does not, standing alone, provide a Criminal Case Notes from page 11 reasonable basis for suspecting that defendant was armed and dangerous. A jeans pocket, unlike a waistband or even a jacket pocket, is not a place sexual desire can be inferred from the conduct of the perpetrator. A normally associated with the placement of weapons. Moreover, defendant contrary finding would skew a reviewing court’s inquiry and restrict, if did not make any furtive or suspicious moves at the time of the encounter. not extinguish, the Grand Jury’s unassailable authority to consider logical Thus, since the pat frisk of defendant was unlawful, the handgun was inferences that flow from the facts presented to it. suppressed, and the matter was remitted for further proceedings. SORA - COURT OF APPEALS Theory of Prosecution - COURT OF APPEALS People v. Ford, No. 47, Court of Appeals 3/26/15 – The Court of Appeals People v. Shaulov, No. 43, Court of Appeals, 3/31/15 – Defendant was determined that a 15 point assessment for the “acceptance of responsibility” accused of multiple sex offenses. During pre-trial Hearings, the People category in a Sex Offender Risk Level Determination Hearing was explicitly stated that it would not provide prompt outcry evidence. In inappropriate where the defendant failed to complete treatment because reliance upon such a statement, defense counsel, in his opening statement, he was too often confined to disciplinary housing. Assessing points for stressed that the complainant delayed in making the instant allegations. failure to accept responsibility is appropriate when the individual refuses Shortly thereafter, the complainant testified, and revealed prompt outcry or is expelled from Sex Offender Treatment. Accordingly, the matter was evidence. Defense counsel requested a mistrial, or striking the testimony. sent to the Hearing Court for consideration of defendant’s classification The trial court denied the defense counsel’s requests. without the 15-point assessment. The Court of Appeals found that since defense counsel was deprived of SORA - APPELLATE DIVISION | FOURTH DEPARTMENT the opportunity to timely and meaningfully revise his trial strategy, and People v. Owens, KA-14-00544, 3/27/2015 – Where the People failed to the trial court failed to provide any remedy for the unfair and prejudicial provide proper notice that they sought to seek a determination different surprise, the judgment of conviction was reversed, and a new trial ordered. than that recommended by the Board of Examiners, as required by Youthful Offender - Correction Law §168-n (3), and where the People failed to demonstrate APPELLATE DIVISION | FOURTH that points should be assessed regarding defendant’s history of drug or DEPARTMENT alcohol abuse, defendant was found to be a Risk Level I Sex Offender. People v. Angel T.C., KA-13-01936, 3/20/15 – Defendant’s valid waiver of the right to appeal did not encompass his contention regarding Stun Belt - COURT OF APPEALS whether he would be adjudicated a Youthful Offender because it was People v. Cooke, No. 73, Court of Appeals, 2/24/15 – A trial court’s failure not mentioned before he waived his right to appeal. Upon review of to make a finding of necessity for a stun belt’s use does not constitute an the contention, defendant, 16, committed the offense while walking unwaivable mode of proceedings error. Thus, where defendant failed to with two friends in the park, saw a vehicle with its keys in the ignition object, and expressly consented to wearing a stun belt at trial, he waived and wondered what it would be like to steal the vehicle. Defendant his contention that he was denied a fair trial due to his restraint by a stun expressed remorse after the incident. Accordingly, because the incident belt. reflected that defendant was an impulsive youth, rather than a hardened Suppression - APPELLATE DIVISION | FOURTH DEPARTMENT criminal, the sentence was modified to adjudicate defendant as a Youthful People v. Burnett, KA-13-01489, 3/27/15 – The police lacked reasonable Offender. suspicion to justify the search of defendant’s person. The fact that

Mackay, Caswell & Callahan, P.C. > > Civil & Criminal Tax Referral Welcome In Memoriam … Since 1961, Mackay, Caswell & Callahan has focused on tax and business law in Central Donald A. Lux New York. April 4 Straight Talk ~ Mackay, Caswell & Callahan, P. C. Effective Solutions© Straight Talk ~ 2015 Effective Solutions© Suite 203Civil & Criminal Tax Referrals Welcome 103 East Water Street

John F. McDonough, Jr. SinceSyracuse, 1961, Mackay, NY 13202 Caswell & Callahan has 103 East Water Street Suite 203 May 21 focusedPhone: on tax844-MCC-4Tax and business law in Central Syracuse, NY 13202 Email: [email protected] New York. Phone: 844-MCC-4Tax 2015 Attorney Advertising Email: [email protected] Attorney Advertising

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Nick DeMartino Joins Team Green Attorney at Bond, Schoeneck & King; a member of the Frishman Nicholas J. DeMartino has joined Team Law Firm; and an Associate Attorney at Poskus, Caton & Klein in Green Lawyers as a criminal defense Denver, CO. He is admitted to practice law in New York State and attorney, bringing a wealth of knowledge Colorado. earned through over thirty years of Aaron is a graduate of George Mason University School of Law practicing law in Central New York. and Hobart and William Smith Colleges. He is currently enrolled Nick DeMartino began his career in 1986 in Leadership Greater Syracuse, Class of 2015 and he is a 2014 by serving as a Deputy County Attorney recipient of the Business Journal 40 Under Forty Award. Aaron with the Onondaga County Department serves as a volunteer on the Finance Committee of the Alzheimer’s of Law prosecuting child abuse and neglect Association, Central New York Chapter; the Onondaga County Bar cases. He then joined the Onondaga County Association’s Volunteer Lawyers Project; and the Jewish Federation District Attorney’s Office, rising to the rank of Chief Assistant of Syracuse Young Leadership Program. District Attorney. He was assigned to the Homicide Bureau where He resides with his family in Jamesville-Dewitt. he prosecuted homicides for eleven years and was made Chief of the Economic Crime Bureau. New Offices for Alderman and Alderman Nick has spent the last seven years as an Assistant Attorney We are proud to announce that we have moved to our brand new General at the New York State Office in Syracuse in the Criminal offices. As of June 1, 2015, our new address witll be as follows: Prosecutions Bureau, investigating and prosecuting white collar Alderman and Alderman and financial crimes such as mortgage fraud, embezzlement, and AXA Tower I, Suite 1220 tax fraud. Prior to that, Nick spent three years in private practice. 100 Madison Street When asked about his decision Nick stated “I’m extremely excited to Syracuse, NY 13202 begin this new chapter in my professional life. It’s an honor to have Our telephone and fax numbers will remain the same, as follows: the opportunity to work with such a fine group of professionals.” Tel: (315) 422-8131 Fax: (315) 474-7507 Scott Brenneck, Partner in Green & Brenneck PCs said “We Manuel A. Arroyo Joins Hancock couldn’t be happier to welcome Nick to the team. His experience Estabrook LLP in prosecution with all types of crimes brings an unparalleled level of legal knowledge that will benefit our clients. He is well known Hancock Estabrook, LLP is proud to and respected in our community and we look forward to working announce that Manuel A. Arroyo has together.” joined the firm. Mr. Arroyo is a member of our Corporate Practice and also our firm’s Contact: [email protected] Ph:315-424-8326. Diversity Officer. He represents clients in Zachary R. Benjamin joins Costello, matters involving business formations, Cooney & Fearon, PLLC mergers and acquisitions, contract Zachary R. Benjamin has joined the firm, negotiations, commercial transactions as a Partner in its Business Law practice and commercial litigation. Mr. Arroyo has group. Mr. Benjamin has a statewide founded and operated several businesses through which he gained practice focusing on business, estate, tax, extensive experience in both corporate and real estate transactions. succession and transactional planning for Prior to joining Hancock Estabrook, he was a commercial litigator closely held and family owned enterprises. at the New Jersey firm of ShapiroCroland. Mr. Arroyo received a B.A. from the University of Massachusetts at Amherst, an Ed.M. He is a graduate of Syracuse University, from Harvard University and a J.D. from Rutgers University. He is Magna Cum Laude & University at Buffalo admitted in New York and New Jersey. School of Law, Cum Laude. Seeking a Will for Alfons J. Pohopek Aaron D. Frishman Joins Bousquet It is believed that Alfons J. Pohopek of 9051 Main Street, Holstein PLLC Westernville, NY, 13486, made a will with a Syracuse area attorney. Bousquet Holstein PLLC is pleased to Date of death is November 26, 2014. Any information regarding announce that Aaron D. Frishman has Mr. Pohopek can be directed to: James Pflanz, Tel. (440)327-9761 joined the law firm as Of Counsel in the or email: [email protected]. Estates and Trusts Practice Group. Aaron has extensive experience in providing New Location for Scalfone Law Office PLLC clients with comprehensive estate and tax Melody D. Scalfone, Esq. planning, drafting wills, trusts, powers of 247 West Fayette Street, Suite 203 attorney, and health care proxies. Aaron Syracuse, New York 13202 will also be representing clients in estate administration, trust and estate litigation, and guardianship Phone: (315) 254-5119 matters, as well as providing Medicaid planning to elderly and Fax: (315) 497-5564 disabled clients. www.scalfonelaw.com Email: [email protected] Prior to joining Bousquet Holstein, Aaron was an Associate 13 LEGAL BRIEFS BRIEFS BRIEFS LEGAL

Hiscock & Barclay, Damon Morey Create Barclay Damon in Buffalo, and across upstate, is more good news and another Hiscock & Barclay and Damon Morey today announced their new example of the tremendous growth and continuing renaissance firm, to be called Barclay Damon effective immediately. The firm of the Western New York economy.“We see significant benefits to will be the largest in upstate New York with 30 to 105 attorneys clients of the combined firm,” he added. each in Buffalo, Rochester, Syracuse and Albany. Barclay Damon Marlette will serve as managing director of also has growing offices in New York City, New Jersey, Boston, the firm’s Buffalo office with current H&B Toronto, New York’s Southern Tier, and Washington, D.C. Managing Director James P. Domagalski. The new firm also creates one of the largest health-care practices With 105 attorneys in Buffalo, the firm’s in upstate New York, and will continue to offer well-recognized commitment to and strength in the Western expertise in practice areas of energy; intellectual property; labor New York region and Buffalo community and employment; business and finance; real estate and project continues unabated. Which Buffalo office development; public finance; and commercial and civil litigation, building the new firm will use has yet to be among others. Providing excellent client service and top quality decided. legal work will remain cornerstones of the enhanced firm. The new firm will also have greater gender “This marriage establishes an organization equity compared to other firms nationally. unique in the Northeast that brings together The combined firm will have 26 women some of the most prominent lawyers in partners, moving toward one in four, and 37 women associates, their fields,” said John P. Langan, managing more than 50 percent of all associates. Both categories are partner of Hiscock & Barclay. “The Damon statistically above the averages for law firms nationwide, according Morey attorneys share our commitment to ABA’s A Current Glance at Women in the Law, July, 2014. to providing outstanding legal advice and One of the most significant aspects of the combination is the solutions in a changing marketplace. They ability of Barclay Damon to provide a full range of sophisticated have great lawyers, a wonderful base of legal services for health care and human service providers. The clients, and are well known in our region firm’s Health Care and Human Services Practice Area will now and nationally.” have an enhanced ability to offer focused advice to every part of “The value added to our current and the industry, including health systems; hospitals; physicians and prospective clients is that we now have literally hundreds of medical groups; surgery centers; skilled nursing and assisted living remarkable attorneys, many of whom could live and practice facilities; continuing care retirement communities; developmental anywhere, but choose to live in upstate cities where they maintain disabilities providers; behavioral health providers; home health more focused client relationships. The unique platform allows us agencies; hospices; diagnostic imaging centers; health information to pass along cost savings to our clients while also presenting an organizations; medical transporters; substance abuse agencies and attractive alternative home for top lateral attorneys, groups, and pharmacies, among others. other firms interested in building something special,” he added. Barclay Damon creates one of the largest health law practices Langan agreed to continue as managing partner of Barclay Damon. in upstate, with 23 attorneys whose practices are exclusively or “This combination creates exciting possibilities in one stronger substantially devoted to health care. Many of these attorneys have firm. We will have the ability to offer a greater depth and breadth of decades of experience working with health-care and human-service services to our clients with broader geographic reach,” said Peter S. providers, and several are former employees of the New York State Marlette, managing partner of Damon Morey. “This development Department of Health, New York’s Medicaid Fraud Control Unit of a new super-regional law firm with a significant presence and other governmental agencies.

TORTS & INSURANCE ATTORNEY DID YOU KNOW … SYRACUSE A large New York State law firm, with offices throughout OCBA receives calls every week from clients New York State and the Northeast, is seeking a full time who are trying to locate documents or files associate in its Syracuse office for its Medical Malpractice / Plaintiff’s Personal Injury Practice. Litigation attorneys once held by their attorneys, after that attorney with 2 - 6 years of torts practice experience (representing has moved, stopped practicing or passed away. plaintiffs and/or defendants), are encouraged to apply. Candidate must be licensed to practice in the state of If you know where your files will go after you’re New York; have superior verbal, written, and interpersonal gone, Contact Membership Coordinator: skills and have demonstrated abilities to work directly with clients. Interested candidates should submit resume, Peggy Walker at 579-2582 cover letter, transcript and writing sample in confidence ONONDAGA COUNTY BAR ASSOCIATION | 431 East Fayetteto: St. | Syracuse, NY | 13202 or email [email protected] Phone: 315-579-2578 | Fax: 315-471-0705 | [email protected] [email protected] | Subject Line: Torts

14 OCBA Paralegals Committee Contributor | Karen Hawkins Inc. was re-elected ESAPA Vice President and Shannon Mack from Capital Monthly Luncheon Meetings District Paralegal Association, Inc. was re-elected ESAPA Secretary. The May 14, 2015 – Blaine T. Bettinger, Ph.D., Fall Meeting will be held in Saratoga on September 19th and 20th, 2015 with Bond Schoeneck & King, spoke to us at the offices of Nixon Peabody and is slated to be hosted by Adirondack regarding the subject of Intellectual Property. Paralegal Association and/or Capital District Paralegal Association, Inc. Blaine is a registered patent attorney and a member of the firm’s Intellectual Property To find out more about ESAPA please check out their website at: http:// and Technology practice, focusing on empirestateparalegals.org the prosecution and litigation of patents, The Executive Committee Could Use Your Help trademarks and copyrights. He works closely The Paralegals Executive Committee (“EC”) meetings are scheduled the with inventors to prepare patent applications first Wednesday of the month. EC meetings begin at noon at Gilberti in such fields as biotechnology, biochemistry, Stinziano Heintz & Smith, P.C., 555 East Genesee Street, Syracuse, NY genetics, immunology, molecular biology, 13202 (parking is available in front of the building on East Genesee Street, chemistry and software. at the rear of the building at 510 East Fayette Street, and the parking Blaine provided us with an overview of the various terms of patents, lot between the GSHS offices and Hamilton White House). EC Chair copyrights, trademarks and trade secrets and at what point in time patents Kathrine Cook extends an invitation to paralegals who would like to find and copyrights enter public domain. He also imparted examples of various out more about serving on the Executive Committee. (If you have thought trademarks and the degree of protection afforded them. about joining the Executive Committee but the meeting time doesn’t work for you, let us know. We may change the meeting time for our Executive Blaine obtained a B.S. in Biology from St. Lawrence University in Canton, Committee meetings, or some of the meetings, if it would work for more New York in 1998. He received a Ph.D. in Biochemistry from SUNY volunteers). If you are interested in attending the EC meetings to share Upstate Medical University in August 2006, and a J.D. from the Syracuse your ideas for upcoming programs and ways to better serve the paralegal University College of Law in May 2009. members, please contact Kathrine Cook at [email protected] The Paralegals Committee would like to thank Blaine for taking time Job Bank from his busy schedule to share some of his vast knowledge of intellectual Are you an employer with a job that needs to be filled? Our Listserv can property with us. help! This service is free to employers – just email Paralegals Committee Looking ahead – June 11. Please join us when Sean Ralph from the NYS Chair, Kathrine Cook, at [email protected] to have their job Department of Financial Services, Criminal Investigations Unit will provided to OCBA Paralegal members via the Listserv. The Listserv is present on Insurance Fraud. open to all OCBA Paralegal members (including student members) as a benefit of paid OCBA membership. Paralegals should contact Peggy We’ll be taking July and August off, but please join us September 10, Walker at the OCBA offices (471-2667) to confirm current membership or 2015. Geoff Bench from Home Point Financial will be guest speaker and to join the OCBA. Peggy and Kathrine work together to ensure Paralegal will present on Reverse Mortgages. members are added to the Listserv. Employers and/or Paralegals can email Just a reminder that we have returned to Spaghetti Warehouse at 689 Kathrine should they have any questions. North Clinton Street for our monthly meetings which begin at noon. Please invite your bosses, legal administrators and co-workers. These luncheon meetings are not restricted to just Paralegals Committee TERENCE A. LANGAN, P.C. members. 33 Years Experience Even if the luncheon topic doesn’t fall in the area of law in which you Florida and New York Estate Administration work, come anyway. You never know what you might learn and how New York Commercial Real Estate it may affect you! And, you will be supporting the OCBA Paralegals Committee. The cost for lunch is $11 for members and $12 for non- members. Reservation deadline is 4:00 pm the day before the luncheon. (315) 445-9761 [email protected] Please RSVP Jean Swanger: [email protected] or 442-0174. REFERRALS WELCOME E-mails are preferred. Stay tuned for further information regarding upcoming luncheons. 333 Butternut Drive, Suite 103 If you have suggestions for guest speakers or presentation topics, DeWitt, New York 13214-1982 please do not hesitate to contact any member of the Executive Committee. We value your input! Kathrine Cook [email protected] FROM THE EDITORIAL BOARD Cynthia Wade [email protected] Ranette Releford [email protected] To advertise in the Bar Reporter, call the Onondaga County Bar Faye Williams [email protected] Association at 315.579.2578. Jean Swanger [email protected] Angelique Kraus [email protected] The Editorial Board encourages members to submit articles for Karen Hawkins [email protected] publication concerning issues presented in each edition or other issues related to the legal community. Submissions should be ESAPA News sent to OCBA, Attention Bar Reporter or Email [email protected]. Empire State Alliance of Paralegal Associations, Inc.’s Editor Emeritus: John A. Cirando. Editorial Board Members: (“ESAPA”) Spring Meeting was held on Saturday, April 25, 2015 in Buffalo at the offices of Phillips Lytle, LLP, Hon. John J. Brunetti Thomas E. Myers 125 Main Street. Our ESAPA delegate, Faye Williams, Nicholas J. DeMartino Nancy L. Pontius attended the meeting and was accompanied by Debra Anne Burak Dotzler Chele Stirpe Turner, Angelique Kraus and Glafira Pytlak. Each member Karen M. Hawkins Jeffrey A. Unaitis association/organization submitted reports regarding their activities and Michael G. Langan James M. Williams initiatives. Raeann Bromark from New York City Paralegal Association, 15 BAR BOARDS: Opening for Estate & Trust Attorney at Melvin & Melvin, PLLC Mid-size Syracuse law firm has opening for an attorney in upstate New York with 2-5 years’ experience in the area of estate and trust practice. Please send response to [email protected].

Office Space Available | Liverpool Prime Liverpool law office space available at corner of Vine and 2nd St. (Route 370). Can share conference room and receptionist with three other attorneys. Ideal for attorney practicing in Matrimonial | Criminal | Workers Comp. Contact Peter at 315-457-0506.

Experienced Litigation Associate/Onondaga County Firm with growing national practice is seeking an experienced Litigation Associate. Candidate must have commercial litigation experience in NYS courts and be able to assume existing caseload. Five or more years of experience preferred. This position can be full-time or part-time, available immediately and perfect for an attorney re-entering practice. Salary is commensurate with experience. Send resume and writing sample to PO Box 622, Brewerton, NY 13029.

Business, Transactional & Commercial Attorney Mackenzie Hughes LLP is seeking to enhance its Business Department with an experienced attorney capable of serving our existing clients and further expanding the practice. We seek a minimum of 5 years of in-depth business, transactional and commercial lending experience. Please provide your qualifications in confidence to [email protected].

Attorney Downtown Syracuse Firm Opening for Attorney in Downtown Syracuse law firm. Meggesto, Crossett & Valerino, LLP is currently looking for an attorney licensed to practice law in New York State. Some experience in civil litigation preferred. Benefits and Parking. Salary DOE. Send confidential Resume to [email protected].

North Syracuse Firm Looking For New Associate Hall, Martin & Lauri, a small North Syracuse civil firm is looking for a new Associate with 3-5 years experience hursday ugust ompey lub to join their growing practice. Proficiency in handling real estate and estates a bonus. Salary DOE. Send T | A 13, 2015 | P C confidential resume to brianlauri@HMLlawyers

Annual 50-Year Luncheon

Join your colleagues at the Bar Foundation’s Annual Event Thursday, September 10 at Drumlins 12:00 pm Celebrate this milestone and applaud those in our community for their decades of practice, service and commitment. This year’s honorees include: Donald P. Colella C. Daniel Shulman Hon. George H. Lowe Michael D. Stern Joel N. Melnicoff Carter H. Strickland Dennis G. O’Hara Paul A. Trivelpiece Roy Sanders Samuel B. Vavonese 16 The Lawyers’ Assistance Project Of Onondaga County

What is the Lawyers’ Assistance Project? The Lawyers’ Assistance Project of Onondaga County is a confidential service providing information, referrals, access to professional counseling and peer support. What Kind of Assistance is Available? You are entitled to a confidential telephone consultation, free counseling sessions with a professional counselor, and participation in peer support groups. What Can I Expect When I Call for an Appointment? You will talk to an intake coordinator who may refer you to an experienced counselor. Family Services Associates serves as the Project’s counseling agency. Is Contact with the Lawyers’ Assistance Project Confidential? YES. You can discuss the issue of confidentiality with the intake coordinator or counselor. Why Was the Project Set Up? For more information contact: The Project was established to assist lawyers who have problems The New York State Bar Association Lawyer Assistance with alcohol, drugs, stress, anxiety, depression, gambling and other Program-- (800) 255-0569 personal problems. Who May Call? Family Services Associates-- (315) 451-2161 Attorneys, judges and law students in Onondaga County and these Onondaga County Bar Association other neighboring counties: Oswego, Jefferson, Lewis, Herkimer, Executive Director, Jeff Unaitis-- (315) 579-2581 Oneida, Cortland, Cayuga and Madison counties.

14th Annual Dan Mathews Golf Outing Thursday | August 13, 2015 | Pompey Club Sponsored By

GEDDES FEDERAL SAVINGS and Loan Association Westvale Plaza Limestone Commons 2208 West Genesee Street 240 West Seneca Street Syracuse, NY 13219 Manlius, NY 13104

Phone 468-6281 • www.geddesfederal.com Automated Banking Phone: 1 (888) 881-8627 Limited to one flight which will fill quickly! • 18 Hole Play + Cart • 11:30 Registration and Lunch • World Famous Steak Dinner • Plaques and Prizes for Winning Teams • Free Beverage Cart

Additional Details and Registration Form Coming Soon!

17 OCBA CONTINUING LEGAL EDUCATION 431 East Fayette St. | Syracuse, NY | Phone: 315-579-2578 | Fax: 315-471-0705 | [email protected]

Enhanced Earnings Issues in Divorce Proceedings 2.0 MCLE Professional Practice Friday, June 19 Philanthropy Center 3rd Floor Conference Room 12:00 – 2:00 pm. Member $40 | Paralegal $30 | Lifetime $0 Legal Services Member $0 | Non-Member $60

This two hour program begins with an overview of the enhanced earning valuation process, then focuses in greater detail on the estimation of earnings capacities and the selection of a discount rate. The program incorporates case law to support the approaches used and is presented in a manner that will enable attorneys to understand and, when necessary, challenge the valuation assumptions.

Robert W. Jones, Esq. Scott Schulz Robert W. Jones is an attorney and economics Scott Schulz is a member of Valuation professor at Rensselaer Polytechnic Institute in Resource Group, LLC, a litigation consulting Troy, New York. He is a graduate of Albany Law firm located in East Greenbush, New York. School (JD), Rensselaer Polytechnic Institute He is a graduate of the State University (Ph.D.), The William E. Simon Graduate of New York at Albany (BS). He holds the School of Business Administration (MBA), professional designations of Certified and Pomona College (BA). He has prepared Valuation Analyst and Certified Equity valuation reports of businesses and enhanced earnings capacities for Professional. He has over fifteen years’ experience in the valuation nearly twenty years, provided expert testimony in state and federal of businesses and enhanced earnings capacities. Scott has provided courts, and assisted attorneys in preparing cross-examinations on expert testimony on the valuation of enhanced earnings capacities in hundreds of valuation matters. New York State Supreme Court.

Under NYS rules this CLE has been APPROVED for both Newly Admitted and Experienced Attorneys $

Enhanced Earnings Issues in Divorce Proceedings

Attendee(s) ______Phone ______

Seminar Fee ______Firm ______Email ______

Address ______Billing Zip ______

o Check Enclosed o Will bring Check to CLE o CC Card# ______Exp. ______

Member $40 | Paralegal $30 | Lifetime $0 | Legal Services Member $0 | Non-Member $60

18 OCBA CONTINUING LEGAL EDUCATION 431 East Fayette St. | Syracuse, NY | Phone: 315-579-2578 | Fax: 315-471-0705 | [email protected]

Animal Abuse Court: Jury Selection: Advocacy Training & Process Preparation & Process MCLE 1.0 Skills + 1.0 Prof. Practice MCLE 1.0 Skills + 0.5 Ethics Tuesday, June 23 Thursday, June 25 CNY Philanthropy Center 2nd Floor Ballroom CNY Philanthropy Center 3rd Floor Conference 12:00 – 2:00 pm. 12:00 – 1:30 pm.

FREE to those willing to participate as a Volunteer Advocate Member $30 | Paralegal $20 | Agency, Lifetime $0 Member $40 | Paralegal $30 | Agency, Lifetime $0 Non-Member $40 Non-Member $60

Hon. Rory A. McMahon | Syracuse City Court Judge Nicholas J. DeMartino, Esq. Nicholas J. DeMartino, Esq. | Green & Brenneck Green & Brenneck Alison Fineberg, Esq. | Onondaga County ADA This CLE focuses on the preparation and process of jury selection, including ethical considerations Officer Rebecca Thompson | Syracuse PD and ethical issues that arise during voir dire. Although this seminar addresses criminal aspects Open to Attorneys, Law Enforcement, and members of the Vet- of jury selection, the concepts and theories erinary Community CLE credit FREE to those willing to volunteer discussed will also benefit civil practitioners. for the Animal Advocacy Program. Nick DeMartino served as a Deputy County Attorney prosecuting child The objective of this program is to establish a group of trained abuse and neglect cases, then joined the District Attorney’s Office, volunteer attorneys who will work cooperatively with the Court, was assigned to the Homicide Bureau for 11 years and was made Chief defense attorney, and district attorney on behalf of an abused of the Economic Crime Bureau. He spent the last seven years at the animal in Syracuse Animal Abuse Court. This proposal has been New York State Attorney General’s Office in the Criminal Prosecutions reviewed with, and has the support of Syracuse City Court Judge Bureau, prosecuting white collar & financial crimes such as mortgage Stephen Dougherty, the Judge assigned to Syracuse Animal fraud, embezzlement, and tax fraud. Abuse Court. Nick joined the criminal defense law firm of Green & Brenneck in May of 2015, specializing in all aspects of criminal defense.

Under NYS rules this CLE has been APPROVED for both Newly Admitted and Experienced Attorneys

Seminar ______Fee ______Seminar ______Fee______

Attendee(s) ______Phone ______

Firm ______Email ______

Address ______Billing Zip ______o Check Enclosed o Will bring Check to CLE o CC Card# ______Exp. ______

Animal Abuse CLE FREE to those willing to participate as a Volunteer Advocate

19 Onondaga County Bar Association 431 East Fayette St. Syracuse, NY 13202

Professor Connors CPLR Update 2015 A Huge Success!

The CNY Philanthropy Center Ballroom was filled to capacity for our Annual CPLR Update last Friday, June 5, with Patrick Connors, professor at Albany Law presenting in the Siegel tradi===tion. Our 2014 CLE award winner, Kevin Kuehner provided a warm OCBA welcome at the breakfast CLE. We have many dedicated attorney-members who have graciously given their time to make our CLE program a success. Providing quality programs with talented local attorneys and judges has been an important goal of the Onondaga County Bar Association. We have three more important programs this month and our Young Lawyers Section is working on an Employment CLE for early July, followed by a reception where we will be taking advantage of the “Loggia” or verandah just outside the Ballroom for afternoon cocktails. Please check our website early and often!! 20