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Wednesday, September 21, 2011

Still Mum on Corruption, Lippman Calls for Long Overdue Juvenile Change

New York Judge Seeks New System for Juveniles
The New York Times by Mosi Secret  -  September 21, 2011

New York State has long dealt with 16- and 17-year-old defendants more severely than almost every other state, trying all of them as adults in criminal courts. Now, New York’s chief judge is calling for a less punitive approach that would focus on finding ways to rehabilitate them.  The judge, Jonathan Lippman, is proposing that the state transfer jurisdiction for 16- and 17-year-olds accused of less serious crimes to family courts, which have more social services, while continuing to prosecute the most violent juveniles as adults. The plan reflects an emerging consensus in many states that troubled teenagers have been mishandled by the adult court system.  If the state adopts the plan, it will most likely have to allocate more money for social services and for the court system, which is already financially overburdened. The change would require a reorganization of the network of city and state agencies in the criminal justice system. The roles of judges, prosecutors, correction and probation officers and many others would change.  “I think it’s complex but feasible,” said Edwina G. Richardson-Mendelson, the administrative judge for New York City Family Court, which would have to handle tens of thousands more cases each year under the plan.  Judge Lippman’s proposal would have to be approved by Gov. Andrew M. Cuomo and the State Legislature. The Republican majority in the State Senate has often favored more stringent criminal justice measures, and may be reluctant to approve it.  A spokesman for Mr. Cuomo did not immediately respond to requests for comment. A spokesman for the Senate majority leader, Dean G. Skelos of Long Island, said his office would review the proposal.  The Democratic majority in the Assembly has historically supported such measures.

New York and North Carolina are the only states that try all 16-year-olds as adults. This year, North Carolina lawmakers introduced legislation to move those cases to juvenile court. Several other states have made similar moves in recent years.  In a speech that Judge Lippman is scheduled to give on Wednesday to the Citizens Crime Commission of New York City, he is to push for the state’s sentencing commission to draft a bill to be introduced in the State Legislature at the beginning of the 2012 session in January.  He also plans, in the coming months, to establish a pilot program of adolescent criminal courts, dedicated to handling the cases of 16- and 17-year-old defendants. These defendants would continue to be processed in the adult court system, but judges would handle the cases as if the defendants were in Family Court.  “I want to be able to show that this works while the legislation is pending,” Mr. Lippman said in an interview.  The judge’s proposal spotlights an issue that state lawmakers and judicial officials have long pledged to tackle. When the state’s juvenile justice law, the Family Court Act, was enacted in 1962, the Legislature chose 16 as the age of criminal responsibility as a temporary measure until public hearings and research could be conducted. The state did not carry out those steps, and the age was never changed.  Judge Lippman said the time had passed for another legislative task force. “To be sure, there are issues that have to be addressed, and we will do that,” he said. “But I don’t believe we should be studying this to death.”  Instead, Judge Lippman said, he will turn to an informal network that has been working behind the scenes on the legal and procedural issues of raising the age of juvenile jurisdiction.  “We will be speaking with the advocacy groups and the institutional players to make sure we understand their concerns and address their concerns,” said Richard M. Aborn, president of the Citizens Crime Commission.  Judge Lippman is also working with the New York Center for Juvenile Justice, run by a retired judge, Michael A. Corriero, an advocate for raising the age.  Every state maintains one court and correctional system for juveniles and another for adults. The juvenile system generally has more employees as well as programming that focuses on treatment and rehabilitation. Juvenile court records are sealed, making it easier for young people who do not commit crimes as adults to find jobs, apply for public housing and receive financial aid for college.  Thirty-seven states, the District of Columbia and the federal government have set the age of criminal responsibility at 18; 11 states have set the age at 17.  There were 45,873 youths ages 16 and 17 arrested last year in New York State, according to the New York State Division of Criminal Justice Services. The overwhelming majority of the arrests were for nonviolent crimes.  Opponents of changes in the system in other states have questioned the costs of transferring more people to juvenile courts at a time when states are facing deep budget deficits.  Many supporters have pointed to a 2005 decision by the Supreme Court, in Roper v. Simmons, which banned the death penalty for defendants who were younger than 18 when their crimes were committed. The court’s majority based its decision on the “general differences” distinguishing people under 18 from adults: lack of maturity, greater susceptibility to peer pressure and undeveloped character.  Studies have also concluded that adolescents who are tried as adults are more likely to go on to commit other crimes.  John Feinblatt, the chief criminal justice adviser for Mayor Michael R. Bloomberg, offered tentative support for Mr. Lippman’s proposal.  “The practical considerations should not shut down the discussion,” Mr. Feinblatt said. “They should be part of the discussion.”

An Open Court

An Open Court
The New York Times  -  EDITORIAL  -  September 18, 2011

The Reporters Committee for Freedom of the Press proposed last week that the Supreme Court adopt a new rule saying every document filed in or by the court “shall be available to the public for inspection” unless it orders that the document be sealed. That presumption of openness would be in the interest of everyone — the Supreme Court, lawyers who practice before the court, scholars who study the court and, of course, the American public.  It is sometimes necessary to restrict public access to court documents — to protect privacy, genuine secrets and people in danger, and for other reasons. But in the last 18 years, the court has gone from allowing records to be sealed in two cases per term to 24 last term out of 9,066 petitions for review. While the fraction remains tiny, the increase is disturbing.  Informed self-government is essential to a healthy democracy. The First Amendment’s guarantees of free speech and press are intended to ensure that. It is important that the Supreme Court’s rules reflect its long-stated preference for the open administration of justice.  The court has ruled that access to proceedings and records in criminal cases can be limited only in exceptional circumstances. Federal appeals courts have said so convincingly about civil proceedings, including records. But the Supreme Court needs a clear rule that ensures transparency whenever possible.  The Reporters Committee urges the court to adopt a rule about the presumption of public access like that of the United States Court of Appeals for the Seventh Circuit. Judge Frank Easterbrook of that circuit wrote, “The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat.” His argument is compelling.

Tuesday, September 20, 2011

OCA's Dysfunction Strikes Again

Judge Resigns Second Department Over Wages
The New York Law Journal by Daniel Wise  -  September 20, 2011

Justice Joseph Covello of the Appellate Division, Second Department, who resigned last week, expressed disappointment yesterday that the pay raise approved by a special commission last month "isn't a ton of money," especially since the state's 1,300 judges have only received one raise in the last 20 years.  Justice Covello called his decision to leave the bench to join an eight-lawyer litigation firm in Mineola "incredibly bittersweet," but "clearly an economic one." With his arrival, the firm has been changed to Lynn, Gartner, Dunne & Covello.  Justice Covello is the third Appellate Division judge to cite the pay drought as what drove him from the bench. The others are Robert Spolzino in the Second Department (NYLJ, Aug. 4, 2009) and James M. McGuire in the First Department (NYLJ, Nov. 15, 2010).  The commission created by statute to end the stalemate over raises for the state judges approved an increase in the salary of Appellate Division justices from the current $139,700 to $168,600 next April, to $176,000 in 2013 and to $183,300 in 2014. Those raises will take effect automatically unless the Legislature and the governor object.  Justice Covello was elected to Nassau District Court in 1995 and to Supreme Court in 2000. He was appointed to the Second Department bench in 2005.

Monday, September 19, 2011

Scheindlin Considers Pledge for Jurors on Internet Use

Judge Considers Pledge for Jurors on Internet Use
The New York Times by Colin Moynihan  -  September 19, 2011

As a federal judge looked over lists of proposed questions for prospective jurors in the case of Viktor Bout, a Russian businessman accused of planning to sell weapons to Colombian rebels, one question suddenly stood out to her: “Do you go on the Internet?”  That question, rhetorical as it might seem nowadays, prompted the judge, Shira A. Scheindlin of Federal District Court in Manhattan, to muse aloud about problems caused by jurors who look up information in cyberspace to supplement evidence presented in the courtroom.  “I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name,” the judge said at the hearing, held this month. “We in the judiciary have been discussing this.”  A few moments later, Judge Scheindlin told the lawyers that she would write a pledge that jurors might be required to sign, promising that they would not turn to the Web to look up Mr. Bout or anything related to his trial until it was over.  Those who signed the pledge, Judge Scheindlin said, would be subject to perjury charges if they broke the agreement.  While it is not clear whether other judges have used similar measures, several lawyers and experts said they did not know of any other instances.  “I have never heard of a judge asking jurors to sign a pledge or any kind of written document,” said Tara Trask, the president of the American Society of Trial Consultants, who commended Judge Scheindlin for a “forward-thinking idea.”  Jurors rendering a verdict may consider only evidence presented during a trial, and judges have tried to ensure that deliberations are not contaminated by outside information.  Juries are typically instructed not to read newspaper articles or watch television programs about the cases they are involved in. Judges now often add instructions telling jurors not to research cases on the Web, but the ubiquity of laptops, smartphones and other devices has made it easier and perhaps more tempting for jurors to do exactly that.  In the Bout case, defense lawyers immediately endorsed Judge Scheindlin’s idea. Prosecutors appeared more reluctant to embrace the possibility of a pledge, saying they thought an oral directive could suffice.  But some legal scholars wondered whether the normal instructions were effective in preventing jurors from doing Internet research.  “I think it is inevitable that courts will have to do something more than simply ask jurors not to look at what is available to them every time they turn on the computer,” said Suzanne B. Goldberg, a professor at Columbia Law School.  Over the last few years, some lawyers have begun using the phrase “Google mistrial” to refer to cases disrupted by jurors searching the Web.  One of the more notable examples took place in Florida in 2009, when a judge declared a mistrial in a federal drug prosecution after learning that nine jurors had used the Web to research the case.  The Bout trial would appear to offer particularly rich fodder for independent research.  Mr. Bout, who has pleaded not guilty, is accused of agreeing to sell millions of dollars’ worth of weaponry, including surface-to-air missiles and AK-47s, to federal agents posing as members of the Revolutionary Armed Forces of Colombia, or FARC. The agents claimed that they wanted the arms to use against American pilots monitoring drug trafficking.  Mr. Bout, a former Soviet air force officer who speaks several languages, is considered by many to be the world’s biggest arms dealer and has been referred to by some as the Merchant of Death.  He is thought to have provided the basis for the 2005 film “Lord of War,” in which Nicolas Cage portrays a weapons seller pursued by Interpol.  In pretrial hearings, Judge Scheindlin and the lawyers in the case have carefully carved out which parts of Mr. Bout’s history will be presented to the jurors and which parts will be left out.  The judge has said, for instance, that she will not allow the mention of countries like Libya, Liberia and Rwanda, which have come up in connection with Mr. Bout, because references to those nations could prejudice the jury.  During the hearing this month, Judge Scheindlin told the lawyers that she wanted to figure out a practical way of dissuading jurors from doing searches that would violate the parameters she had agreed upon with the lawyers.  “I can’t seize their computers and their BlackBerrys,” she said. “I can’t lock them up. I can try to intimidate them.”  It remains to be seen how well a pledge, if instituted, might work, said Stephen Gillers, a professor at New York University law school.  “Judge Scheindlin apparently believes that the affirmative act of actually signing a specific pledge may more dramatically impress jurors with their duty and increase the likelihood of obedience,” Professor Gillers wrote in an e-mail message. “I think she’s correct. It can help and certainly can’t hurt.”

Sunday, September 18, 2011

Manhattan AG's Office Suspends Lawyer Who Moonlights as a Dominatrix

Manhattan AG's office suspends lawyer who moonlights as a dominatrix
The New York Post by Jamie Schram and Bob Fredericks  -  September 17, 2011

A well-respected lawyer in the state Attorney General’s Office spends her days toiling in securities fraud -- and her nights moonlighting as a dominatrix, The Post has learned.  Alisha Smith, 36, who dresses demurely as a buttoned-down prosecutor, turns up the heat when she becomes perky persecutor “Alisha Spark,” a nom de dom she uses when she performs at S&M events for pay, according to a fetish source.  “They pay her to go to the events. She dominates people, restrains them and whips them,” the fetish source said.  At a recent event in which she posed for photos with fellow fetishists, she was espied wearing a skin-tight, see-through latex dress with heart-shaped pasties. Now Smith is on the receiving end of some serious discipline from her bosses at the AG’s office. Yesterday, she was removed from her duties -- for which she earns $78,825 annually -- after The Post inquired about her saucy S&M lifestyle.  “The employee has been suspended without pay, effective immediately, pending an internal investi-gation,” said a spokesman for state Attorney General Eric Schneiderman.  The spokesman would not elaborate on why Smith was being professionally spanked.  It comes just three years after she was lauded by then-AG Andrew Cuomo for her role in obtaining a $5 billion settlement from Bank of America and others in a securities-fraud case.  Smith declined to speak to The Post when approached outside her Manhattan home.  Her attorney, Marshall Mintz, would not comment on her side work or on whether she’s been paid.  Sources familiar with the issue say Smith’s punishment has less to do with her personal pleasure and more to do with the possibility that she profited from it.  It is common in the S&M community for dominatrixes to receive payment for appearances at fetish parties, where they unleash tawdry torments on eager sub missives.  Sources cited a standing executive order in the Attorney General’s Office that requires employees to “obtain prior approval from the [Employment Conduct Committee] before engaging in any outside pursuit ... from which more than $1,000 will be received or is anticipated to be received.”  Smith has left traces of her secret S&M life online.  In an Aug. 5 Twitter posting to friend and well-known dominatrix Jade Vixen, Smith tweeted, “Ricky’s doesn’t have the 500ml. is the cheapest I could find for Eros” -- a reference to Eros Power, “a premium cream lubricant” on a sex-products Web site.  “They’ve known each other for years,” the S&M source said of Smith and Vixen, whose real name is Edythe Maa. “They’re very close.”  The source said Smith and Vixen regularly attend fetish parties where they “work together on one” submissive.  In a recent photo from a fetish event, a sexy Smith is seen sandwiched between Vixen and Vixen’s boyfriend, each of whom is dressed in a rubber nurse’s costume.  Three of Vixen’s male associates have met untimely deaths since 2008.  On Aug. 18, she found her boyfriend, 49-year-old engineer Peter Stelzenmuller, dead in the attic of their Pennsylvania home. The attic was filled with paraphernalia, including rubber masks and clothes and cans of whipped cream.  Stelzenmuller is believed to have died of self-suffocation, police said. His obituary claimed he had been trying on scuba gear.  In December 2008, a former Vixen client, David Krieg, shot and killed her then-boyfriend, Anthony Ottaviano, a lawyer.  Krieg later blew his own brains out.  On Aug. 19, a day after finding Stelzenmuller dead, Vixen tweeted: “Ladies night with Mistress Tyler, Alisha Spark and Lydia Mischief.”  Additional reporting by Eric Kriss and Reuven Fenton  -

Thursday, September 15, 2011

Law Students Get Proof That All Of NY Justice Has A Price

Hofstra Renames Law School for Contributor of $20 Million
The New York Law Journal by Andrew Keshner  -  September 14, 2011

Hofstra University School of Law will be renamed in honor of a graduate who has agreed to donate $20 million to the Long Island school, the school announced yesterday.  It will become the Maurice A. Deane School of Law at Hofstra University in recognition of a wealthy retired pharmaceutical executive who enrolled in the school at age 50 and was the valedictorian in the class of 1981, receiving awards for both constitutional law and evidence.  The donation will approximately double the law school's endowment to about $40 million, according to Dean Nora V. Demleitner.  She said interest from the gift will be used to help with student loans and enhance offerings like student fellowships, research and travel.  In deciding how to best use the funds from the interest, Ms. Demleitner said she was "mindful" to address important issues facing law students—finding good professional positions after graduation and attempting to control debt loads.  Calling it "a wonderful opportunity for the law school," which has about 1,000 students, Ms. Demleitner said the donation "allows us to build on the future and round out the year."  More than half of the gift has been received in the past month, with the remainder coming in the next 15 months, she said.  The school said that for 30 years Mr. Deane, now in his mid-80s, has been an adviser and benefactor of the university and its law school. He served on the university's board of trustees from 1982 to 2007 and was the board's chair from 1989 to 1991. In 2008, he was named chair emeritus.  His latest contribution will be dedicated to enhancing the academic quality of the law school. Previously, he had endowed a distinguished professorship in constitutional law and a scholarship with his wife, Barbara. The law school's library is already named for Mr. Deane and his wife.  Mr. Deane passed the bar in 1982. Though he did not practice after graduation, he thinks his legal education "really served him well," Ms. Demleitner said.  Mr. Deane is "exceptionally fond of the law school," she said, adding that a condition of the donation was that it exclusively benefit the law school.  Ms. Demleitner said she and Hofstra University President Stuart Rabinowitz, who was once the law school's dean, decided to rename the school in light of the donation.  Ms. Demleitner said Mr. Deane's contributions to the law school were in the "millions," with this gift being his single largest donation.  A spokeswoman for the law school declined to comment on which side approached the other about a donation, but said the gift was "a continuation" of Mr. Deane's longtime support for the school.  Alexandria Sawyer, president of the law school's student bar association and a third-year student, said news of the donation created "a lot of talk and a lot of excitement" among the students yesterday. "The students recognize how important and influential this will be to our school immediately," she said, noting how the donation would be used, in part, for scholarships. "This is someone as students we look up to as a role model and an inspiration," she said of Mr. Deane.  Mr. Deane helped build Endo Pharmaceuticals into one of the largest privately run pharmaceutical companies in the nation. The company was sold in 1970 to E.I. du Pont de Nemours and Co. Mr. Deane served as its president until his retirement eight years later.  Mr. Deane did not make himself available for interviews yesterday.  Andrew Keshner can be contacted at

Former Head of Make-Believe Integrity Unit Becomes Parter

Former Integrity Head Joins Kirkland & Ellis
The New York Law Journal by Joel Stashenko  -  September 15, 2011

The former head of the state Commission on Public Integrity, Mitra Hormozi, has become a partner in Kirkland & Ellis, the firm announced yesterday. She will specialize in government investigations and defending those facing white-collar prosecutions, said Jeffrey C. Hammes, chair of Kirkland's global management executive committee.  Ms. Hormozi, the former deputy chief of staff to then-attorney general Andrew M. Cuomo, was tapped as chair of the integrity panel earlier this year after Mr. Cuomo became governor (NYLJ, Jan. 19).  In the attorney general's office, Ms. Hormozi coordinated initiatives on public integrity and consumer fraud. Before that, she spent six years as an assistant U.S. attorney in the Eastern District, working primarily on organized crime and racketeering cases.  The Public Integrity Commission is now being transformed into a new Joint Commission on Public Ethics with additional powers that the old panel did not have when it was formed by Mr. Spitzer in 2007 (NYLJ, Aug. 16).

Tuesday, September 13, 2011

Tembeckjian's Corrupt Judicial Panel Accuses Surrogate of Wrongdoing

Conduct Panel Accuses Surrogate of Inaction in P.A. Counsel Scandal
The New York Law Journal by Daniel Wise  -  September 13, 2011

The New York State Commission on Judicial Conduct has accused Bronx Surrogate Lee L. Holzman of failing to turn in to the authorities a former counsel to the Bronx public administrator after learning the attorney, Michael Lippman, had received payments exceeding those authorized by an oversight commission headed by the surrogate.  The charges became public when Surrogate Holzman waived his right yesterday to have the commission proceedings against him remain confidential.  The commission issued charges on Jan. 4, 2011. But while the first witness was on the stand yesterday, a judge in Manhattan ordered the hearing temporarily stayed.  In its formal complaint, the commission charged Surrogate Holzman with misapplying guidelines for the payment of counsel to the public administrator in a case linked to Mr. Lippman, who was indicted in 2010 for collecting $300,000 in excessive fees (NYLJ, July 9, 2010).  The commission's complaint charged that in 2005-06 when Surrogate Holzman became aware that Mr. Lippman had received fees in excess of the 2002 guidelines, the judge failed to report Mr. Lippman to either law enforcement or professional disciplinary authorities.  Surrogate Holzman similarly failed to report payments that had been advanced to Mr. Lippman by a former Bronx public administrator, according to the complaint.  Surrogate Holzman's lawyer, David Godosky fired back that Surrogate Holzman "took immediate action" in late 2005 and early 2006 as soon as he learned of any misconduct in the Public Administrator's Office.  "Investigations by the Bronx District Attorney's Office, the New York City Department of Investigations and the FBI all concluded that the problem was in the Public Administrator's Office, not the Surrogate's Court," said Mr. Godosky, of Godosky & Gentile. Only the conduct commission has taken the position that Surrogate Holzman is "somehow responsible under a theory of respondeat superior," he added.  Surrogate Holzman became the chairman of the Administrative Board of the Offices of the Public Administrators in 2002, the year the body formulated guidelines for the payment of counsel to public administrators. The guidelines, which are not mandatory, set compensation at 6 percent of the first $750,000 at issue in an estate case, with the percentage declining in increments to 1.5 percent for amounts exceeding $5 million.  Surrogate Holzman remained the board's chairman through 2009 and continues to serve as a member.  The Surrogate's Court in each county appoints both the public administrator and his or her counsel. Public administrators are responsible for distributing the assets of persons who die without a will and who have no close relative to wind up their affairs.  Mr. Lippman was indicted in 2010 for receiving a total of $300,000 in excessive fees in five cases. Also, according to the conduct commission complaint, he received improper advances on his fees from a former public administrator, Esther Rodriguez. Those advances had not been approved by Surrogate Holzman.  The commission listed nearly 50 cases in which Mr. Lippman had received either excessive fees or advances on his earnings.  After learning of the improper payments in 2006, Surrogate Holzman fired both Ms. Rodriguez and Mr. Lippman, according to the commission's complaint, but allowed Mr. Lippman to continue working with the understanding that any fees he earned would be applied against the excessive or advance fees already paid to him.  A new public administrator and counsel were appointed, and during the next three years, Mr. Lippman, though no longer counsel, continued to work on 20 percent of the new cases that came into the office, said John J. Reddy Jr., who replaced the interim counsel in 2009.  Any amounts Mr. Lippman earned on those accounts were also used to replenish estates on which Mr. Lippman had received improper payments from Ms. Rodriguez, Mr. Reddy said.  With Mr. Reddy's arrival, Mr. Lippman's work on the Bronx office's cases ceased. At the time, according to Mr. Reddy, about 300 cases remained in which either overpayments or advances had not been worked off by Mr. Lippman.  Now that number is down to 32, he said.  Mr. Reddy said that fees generated by work that he or his firm, Reddy Levy & Ziffer, performed on Mr. Lippman's cases are used to replenish the estates that paid the excessive or advance fees to Mr. Lippman. Mr. Reddy said that to recover his own fees, he would have to sue Mr. Lippman for hundreds of thousands of dollars.

Stay Issued

Manhattan Justice Barbara Jaffe stayed the commission hearing yesterday morning while Ms. Rodriguez, the first witness, was on the stand.  Last Thursday Justice Jaffe had denied Surrogate Holzman's Article 78 petition for a stay to enable him to secure testimony from Mr. Lippman, who is certain to invoke his right to protection against self-incrimination until the criminal case is over. The criminal case, brought by the Bronx District Attorney's office, is still in the motion phase.  Surrogate Holzman also asked to delay the commission's hearing until the completion of Mr. Lippman's criminal case so the judge could obtain records compiled by law enforcement agencies in conjunction with the prosecution.  Yesterday, however, Justice Jaffe granted Surrogate Holzman's motion to reargue the Article 78 and stayed the commission hearing until the next court date, Sept. 21.  Daniel Wise can be contacted at


Saturday, September 3, 2011

Prosecutor May Face Disciplinary Action For Screw-Ups

DA aide's flub trouble
The New York Post b Jamie Schram, Larry Celona and Kirstan Conley 

A senior Bronx prosecutor may face disciplinary action from the Bronx district attorney for blowing deadlines that freed a parolee accused of trying to kill an NYPD cop, The Post has learned.  "Discipline is not off the table," said Steven Reed, spokesman for DA Robert Johnson. "There are a number of things we have to look at before we determine what, if anything, should be done."  Christine Scaccia, a 20-year veteran with the lofty title of director of gang prosecutions, was supposed to try Darren Morris for allegedly firing two bullets at Officer Daniel Beddows in November 2009.  Beddows tackled Morris, who was charged with attempted murder.  But Scaccia dragged her feet when she got the case and missed several deadlines that forced the charges to be dropped, sources said.  "Ultimately the case in question was dismissed because it appears that there was a serious professional lapse in the assistant's performance of the duties necessary to move the case forward," Reed said.  The arresting officers plan to meet with the US Attorney's Office next week -- and there's a good chance federal prosecutors will take the case, police sources said.  "They're definitely looking to take it," one source insisted.  Originally, the feds had shown interest because they wanted to see Morris, 27, get a stiffer penalty, but state prosecutors won out in their negotiations.  Under the "Trigger-Lock Program," gun violators convicted in federal court receive harsher sentences than they would in state court.  In 2006, Morris also pulled a gun on cops, who restrained him before he could open fire. While being cuffed, Morris tried to wrestle a cop's service weapon from his holster, the sources added.  He was convicted of criminal possession of a weapon and paroled last year.  Scaccia's bungling is the second black eye for the Bronx DA's Office this year.  In April 2011, Assistant DA Jennifer Troiano was busted on a DWI charge after being allegedly involved in a three-car wreck on the Major Deegan Expressway a year earlier.  Troiano is awaiting trial but still working for the office.

Friday, September 2, 2011

Charges of Irresponsible Accounting in Lippman's Judicial Pay Raise Mess

Raises for Justices Mean Higher Pay for Some D.A.s
The New York Law Journal by John Caher  -  September 2, 2011

With last week's recommendation to increase judicial pay 27 percent over the next three years, many upstate and Long Island chief prosecutors are in line for a substantial raise under Judiciary Law §183-a, which links their salaries to judges'. However, district attorney salaries, unlike judicial salaries, are primarily a local expense, and the counties, already reeling over a new law that imposes a limit on property tax increases and perpetually leery of mandates that do not come with money, are alarmed.

ALBANY, NY - A statutory link between judicial and district attorney salaries means many upstate and Long Island chief prosecutors are in line for substantial pay increases over the next three years, and the increased cost may be entirely borne by counties already up in arms over "unfunded mandates."  Under Judiciary Law §183-a, district attorneys in counties outside of New York City with more than 500,000 residents are entitled to the same salary as Supreme Court justices, and full-time prosecutors in counties with populations between 100,000 and 500,000 get paid the same as a county judge.  The provision would affect 22 of 57 counties outside New York City. The law does not apply to the city's district attorneys, who earn $190,000 a year.  With last week's recommendation by the Special Commission on Judicial Compensation to increase judicial salaries 17 percent next April and 27 percent over the next three years—which is binding unless the Legislature and Governor Andrew M. Cuomo enact legislation rejecting the proposal—district attorneys will receive the same raise. Supreme Court justices now make $136,700 and county court judges are paid between $119,800 and $136,700.  However, district attorney salaries, unlike judicial salaries, are primarily a local expense.  In the past, when judicial salaries were determined by the Legislature, lawmakers routinely added an offset to help cover the additional expense for prosecutors imposed on counties.  For instance, the last time judicial and district attorney salaries were increased, in 1999, the state picked up between 36 percent and 42 percent of the cost of the D.A. raises, depending on the county.  But in this round, the Legislature and governor are not involved in setting judicial, and therefore district attorney, salaries and, so far, there is no offset. And the counties, already reeling over a new law that imposes a limit on property tax increases and perpetually leery of mandates that do not come with money, are alarmed.  "It was incredibly irresponsible [to not factor in district attorney salaries while debating judicial salaries], especially as the counties are all earnestly working to cap their property taxes," said Stephen J. Acquario, executive director of the New York State Association of Counties.  William C. Thompson Jr., the former New York City comptroller and the chairman of the now dissolved pay commission, was not immediately available for comment.  Mr. Acquario said he and the counties are lobbying for additional state funds, but it remains unclear whether the state will cover any portion of the increased expense.  Mary Pat Hancock, chairwoman of the Genesee County Legislature, is hopeful that when the monies are actually appropriated for the judicial raises funds will be included to reimburse the counties for the district attorney raises.  "I certainly hope they do it, because we sure don't need another mandate," Ms. Hancock said.  Michael Whyland, spokesman for Assembly Speaker Sheldon Silver, D-Manhattan, said that if the matter is addressed, it will have to be addressed in Mr. Cuomo's budget for the next fiscal year, which begins on April 1, 2012, the same day the first phase of the raises takes effect.  Mr. Cuomo's Division of Budget did not respond to several inquiries on the issue this week.  John Caher can be contacted at

Judge Asked to Revisit Prosecutorial Misconduct in Grand Jury Proceedings

Nassau Prosecutors Ask Judge to Revisit Allegations in Opinion
The New York Law Journal by Andrew Keshner  -  September 2, 2011

The Nassau County District Attorney's Office has decried what it characterizes as a judge's unfounded accusation in a written opinion that prosecutors had improperly manipulated a grand jury, allegations that a prosecutor said would "besmirch" his reputation.  Assistant District Attorney Michael Bushwack on Wednesday moved to reargue an Aug. 23 decision by Acting Supreme Court Justice George Peck in People v. Draper, Indictment No. 894N-11, dismissing two counts of criminally negligent homicide and one count of third-degree criminally negligent assault against upstate trucker Ryan Draper.  "[T]here is absolutely no evidence of prosecutorial misconduct or improper influence on the Grand Jury," District Attorney Kathleen Rice said in a statement yesterday. "If Judge Peck examined the record closely and allowed prosecutors a fair hearing, he would know that these outstanding ADAs did nothing wrong. Instead, he admittedly based his conclusions on assumptions and speculation, with reckless disregard for the facts. We have moved to reargue to ensure that Judge Peck appreciates the law and the propriety of the prosecutors' conduct throughout this case. If the motion is denied, we will appeal."  Mr. Draper was charged in connection with an April 2010 multi-car collision at a Bethpage intersection that resulted in the deaths of Barbara Ryan, 44, and her 11-year-old daughter, Joanna.

Justice Peck held that the prosecution had presented insufficient evidence to demonstrate that the incident was anything other than an accident. But he also said that he was dismissing the negligence counts "for the reason of improper prosecutorial conduct and unfair dealing which usurped the power of the Grand Jury."  On the morning of May 19, the grand jury declined to indict Mr. Draper for homicide but charged him with criminally negligent assault, reckless driving and two traffic infractions. But the judge complained that Mr. Bushwack returned and initiated a colloquy with the grand jury in the afternoon although it had not asked for his legal advice.  After Mr. Bushwack re-instructed the grand jury on the law, it reversed its earlier decision by indicting Mr. Draper for homicide.  "There might be an appropriate explanation why the prosecutors took the action they did," the judge said. "However, on the state of this record, this court can only conclude that it is more likely than not that the prosecutors were dissatisfied with the recorded action of [the grand jury's] morning session and thereafter in the afternoon session exercised improper influence which undermined the integrity of the Grand Jury."  Mr. Bushwack said in his motion that he had been merely trying to determine how many grand jurors had voted to dismiss the charges because, by law, a grand jury cannot dismiss a charge without the agreement of 12 members.  "The lack of any evidence that there is impropriety is striking," he wrote. "This court undertook no investigation and had no hearing before making its damaging finding. The Court's decision, which mentions me by name, will henceforth besmirch my reputation based solely upon speculation about matters not appearing in the record of this proceedings."  Mr. Bushwack recounted that during the morning deliberations he had gone to handle a case in another building, leaving the grand jury in the care of Vehicular Crimes Bureau Chief Maureen McCormick, his supervisor. At lunch, Mr. Bushwack said that he had run into Ms. McCormick and she told him about his result.  However, Ms. McCormick said that the foreperson of the grand jury had not been asked if there were 12 votes for dismissal. Ms. McCormick said in an affirmation that she does not usually present cases to the grand jury and that she had simply forgotten to ask.  Mr. Bushwack recommended that the question be posed in the afternoon, and she agreed. He stressed that he never communicated with any jurors between the time he left to deal with another case to his grand jury appearance after lunch.  "Just as there is nothing improper about confirming that a petit jury has followed a court's instructions, for example, by polling jurors to confirm that their verdict is unanimous, there is nothing improper about confirming that a Grand Jury has followed a prosecutor's instructions to ensure that the proceedings are proper and not subject to dismissal pursuant to CPL §210.20(c)," he wrote, referring to a provision authorizing an indictment's dismissal due to a defective grand jury proceeding.

Question of Evidence

Mr. Bushwack also argued that there was ample evidence to let the criminal negligence charges go forward.  According to statements made to police that were later cited by prosecutors, Mr. Draper took his eyes off the road momentarily to check his mirrors and reach for a lighter. He never saw a light at the intersection change to red and saw Ms. Ryan's car too late.  Mr. Draper was allegedly traveling between 47 and 50 m.p.h. at the time of the incident. The posted speed limit is 40 m.p.h.  There were no drugs or alcohol involved in the case; nor was there bad weather or heavy construction at the time.  Mr. Draper, of Lowville, has pleaded not guilty and is free on bail.  Justice Peck concluded that prosecutors had presented insufficient evidence to demonstrate Mr. Draper's "gross deviation" from what a reasonable person would have done, noting "[n]ot all conduct which evinces a lack of care or prudence amounts to criminal conduct."  Viewing the evidence "in its best light," Mr. Draper could have been speeding "to a slight degree" before the traffic light turned red, Justice Peck wrote.  Prosecutors brought in an accident reconstruction expert, Ronald Baade, who Justice Peck said was there "presumably to testify among things as to his opinion as to the defendant's speed at impact with the victim's car."  But Justice Peck said Mr. Baade was "inexplicably" never asked for an opinion on Mr. Draper's speed.  "In essence there was no competent sworn expert testimony of the witness concerning his opinion as to the defendant's speed at impact," Justice Peck wrote, saying Mr. Baade's testimony had to be discounted.  Mr. Bushwack argued that Mr. Baade had indeed stated an opinion although he couched it in other words, by stating that he had reached his "conclusion" using "industry standards" and "scientifically acceptable methods."  Joseph A. LoPiccolo of Hession, Bekoff & Lo Piccolo in Garden City represents Mr. Draper.  In an interview, he said Justice Peck's dismissal of the case's top charges was a "verification of the fact that sometimes an accident is just an accident. There's not criminal culpability to every accident."  Mr. LoPiccolo called the district attorney's decision to file the motion to reargue "essentially a stall tactic" that allows more time for the office to determine whether to appeal to the Appellate Division, Second Department.  "It's a unique decision here because the judge didn't just dismiss on the law, he dismissed on the grounds of prosecutorial misconduct to the grand jury," he said.  Andrew Keshner can be contacted at

Thursday, September 1, 2011

EDITORIAL: Return to The Bad Old Days, Thanks to Certain Courts

Bad old days
The New York Post -  EDITORIAL  -  August 31, 2011

Younger New Yorkers can be forgiven bemusement when their elders speak of the time, not so long ago, when New York City seemed totally out of control.  Back then, before 1993, criminals and crazies ruled the seedy streets, City Hall was paralyzed and the rights of everyday New Yorkers were subordinate to the whims of psychos and social misfits.  It was a time captured in Tom Wolfe’s justly celebrated novel, “The Bonfire of the Vanities” -- and symbolized by a Post front page that pleaded with the city’s then-mayor: “Dave, Do Something.”  That New York is long gone, thankfully -- but is the pendulum swinging back?  Take Carol Feinman, the Bronx jurist who seems to be channeling the late Judge “Turn-’Em Loose” Bruce Wright by repeatedly setting violent criminals free without bail.  Feinman -- a former Lower East Side community board chair -- sprang one thug accused of robbery and assault because she didn’t believe the victim’s testimony.  She also let walk a serial burglar busted for breaking into a church after his DNA matched a sample from the scene, asserting that the perp was too experienced a criminal to leave DNA.  Mind-boggling.  Like Bruce Wright, Feinman and her defenders cite the Eighth Amendment, which forbids excessive bail.  But, just like Wright, Feinman seems to believe that any bail is excessive.  Then there was yesterday’s New York Times story about Sojourner Hardeman, a vagrant panhandler who’s won a court-approved stipulation in which the NYPD agreed not to arrest her unless she’s otherwise breaking the law -- which may seem reasonable, but which is not.  Hardeman is not a mentally ill drug-abuser, like so many of the deinstitutionalized homeless of the ’80s -- including the notoriously deranged “Billie Boggs,” who became a media darling for successfully challenging a Koch administration policy that mandated treatment for vagrants deemed dangerous.  Unlike “Boggs” -- who used to sit in her own excrement and scream at passersby -- Hardeman’s panhandling is passive: She doesn’t aggresively demand money. But she’s no victim, either; the Times reports that she quit a job as a law-firm assistant to find something “more fulfilling.”  Now she’s busy asserting her First Amendment right to block pedestrian traffic on high-volume streets.  Just as a group called Picture the Homless this month trumpeted the “First Amendment right” of vagrants to sleep anywhere they want -- Penn Station, the subways, Grand Central -- because city shelters don’t offer sufficient “respect.”  Talk about back to the future.  Feinman, elected last year to the Civil Court but transferred to the criminal bench to fill a vacancy, reportedly hates the gig -- though she’s not saying for sure.  “Get the f--k away from me or I’m calling the police,” she growled at a Post reporter yesterday. Nice.  Jonathan Lippman, the state’s top judge and a fellow old enough to remember the bad old days, needs to find Feinman a job that she’s up to, before she lets a killer free.  Traffic court, maybe?

Judge With a Grudge

Bail-fail judge with a grudge
The New York Post by Amber Sutherland, Kirstan Conley and Bob Fredericks  -  August 31, 2011

The rookie Bronx judge who has been allowing violent criminals to walk free without bail despises her job -- and hopes she'll force a transfer from the rough-and-tumble Criminal Court to the cushier civil division, a well-placed source told The Post.  Carol "Set 'Em Free" Feinman, 57, was elected as a $125,000-a-year civil court judge, but was bumped to criminal court immediately after her Jan. 3 start date because of a heavy backlog of cases.  "She's unhappy on the criminal side," the law-enforcement source said. "Most of the judges who get transferred step up to the plate."  Feinman had no criminal-law experience before she was elected, having served 25 years as an administrative-law judge, earning nearly $87,000 in that job in 2009.  Cops and Bronx prosecutors are outraged that Feinman has free rein to let dangerous perps walk free, beholden to no one except voters in 2020.  A source said no complaints have been filed against the judge and it is unclear if any action could be taken against her if they had.  Court spokesman David Bookstaver declined to comment on Feinman's status -- but suggested a transfer is possible.  "The decisions about judicial assignments for next year will be addressed in the fall," he said.  Feinman -- a longtime West Village activist and former chair of Community Board 2 -- yesterday snapped at a Post photographer outside her apartment.  'Get the f - - k away from me or I'm calling the police!" she snarled.  Among her rogues' gallery of freed thugs is Ramon Barroso, 45, an ex-con with four burglary convictions since 1985.  The career thug was charged with breaking into the Miracle Provider City Church in The Bronx on June 29, after cops matched his DNA to a sample from a safe.  Barroso told cops he was an expert safe cracker who would have worn gloves.  At his arraignment, prosecutors asked for $50,000 bail -- but Feinman incredibly declined.  "I am going to release the defendant," she said. "I think his past history would indicate that if he were to commit a burglary, he would be smart enough to wear gloves."  Pastor Kenneth Hunter was dumbfounded.  "I'm not looking to judge the person, but the person should have a judge. Until that time, he should be held so that he cannot commit these same crimes," Hunter said.  In another controversial case, she released a teen with a previous gun arrest who allegedly mugged a cop, ignoring the assistant DA's request for $25,000 bail.  And she also sprang an accused armed robber because she didn't buy the victim's story that he was able to overpower his attacker.  Additional reporting by Daniel Gold, Helen Freund, Larry Celona

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2
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