Electronically In Touch

We are pleased to submit the September 2016 edition of Electronically In Touch. This issue contains Part I of a Three Part Op-Ed by a current member of the New York City Police Department on policing, an informative article on purchasing a new home, and an article on the New York Uniform Fraudulent Transfer Act, as well as reports from the Criminal Justice and Labor & Employment Law Sections.

Electronically In Touch is a member driven publication. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison, Esq. at srgrandison@gmail.com by the 1st of each month.

The Officers of YLS and the Editor of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not represent the thoughts and opinions of the New York State Bar Association, Young Lawyers Section, its Officers, or Executive Committee.

Every once and while when I find I need a little boost of confidence, I turn to a simple quote by Babe Ruth: "Never let the fear of striking out get in your way." As a young attorney, I have found that reminder to be helpful time and time again. You can prepare and prepare, but eventually, you need to step up to the plate and try something for the first time. It might not work out as well as you planned, but very rarely do you completely strike out.

The Young Lawyers Section has provided me many opportunities to step up to the plate. I believe it was the second YLS meeting I attended where then chair James Barnes asked me to help edit Electronically In Touch. I was terrified when the first issue went out. I had this image in my head of being flooded with emails asking for corrections and strangers pointing out typos. Of course, that didn't happen. Instead, I found I had the ability to reach out to writers, not only to ask for content but also to provide feedback.

Every step I have taken in my career and my work with NYSBA has involved me getting over my fears. Even if I didn't hit it out of the park on my first try, I have always been glad that I stepped up to the plate.

Erin K. Flynn, Esq.

By: Anonymous Six Year Rookie/Veteran of the New York City Police Department

In 2011 I walked a foot post in Brownsville, Brooklyn, New York, located within the 73rd precinct of the New York City Police Department (arguably one of the toughest neighborhoods in the country). I was a rookie fresh from the police academy ready to do great things in the community, build solid relationships with the people I saw every day, and most importantly, be an example to the youth in the area. These were my hopes, but the Police Department, the culture of policing, COMPSTAT, and the concept of "activity" would soon replace my hopes with realities; realities that were set in place long before I stepped a single foot into the police academy.

In Brownsville (as well as just about every other black and brown neighborhood in New York City), the right to walk along a city street without being impeded, accosted, and for lack of a better word, violated, was more of a theory than a reality. During the "Ray Kelly Days", Stop, Question, and Frisk went from being a police tool that was a great way to prevent violent crime, to a police tactic used to illegally search for petty narcotics, contraband, and illegal street interrogations.

It is important to realize that when the law allowed for street level stops, this authorization was based upon the possibility of criminality being afoot. With efforts not to make this an educational piece on Stop, Question, and Frisk, I encourage you to research the practice and gain an understanding of the levels that take an officer from observation to enforcement. I digress.

Understating the notion that anything created has the potential to be corrupted, we should not pretend that Black and Latino males' civil liberties were not being denied prior to the time the NYPD began stopping minorities in the street. There are bad apples in every bunch and bad elements in every practice, but what happens when the bunch becomes corrupted by the few, and the negative elements create misleadingly positive statistics? Mayor Bloomberg often boasted that shooting, homicides, and violent crime overall were down during his tenure, specifically crediting proactive policing as the key reason.

I'm explaining things in a manner in which both a law enforcement professional and a person who has never been in a rough inner city neighborhood MIGHT understand, but let's get down to the meat and potatoes of this thing; we could stop anyone we wanted, anywhere we wanted, and hold them there as long as we wanted. There was always a reason to stop, frisk, and question anyone without credible cause. Credible, not "probable" cause is used for a very specific reason: articulation. "A bulge was noticed; His waist was heavy on one side; He walked with an odd limp; He adjusted his waistband when he saw me"...I could go on for days). As a sworn and trained Police Officer, my words had merit in the eyes of the public, the court, and instantly became credible the moment they left my mouth.

Users and Abusers

There were those who policed the streets to the letter of the law with a genuine passion to make that community a better place by removing guns, drugs, and any other element that threatened the dignity and well-being of the people living there. However, there were others who were slaves to the city's number system and worked only to meet and exceed quotas - what we call "activity". On a monthly basis, every single police officer working in a patrol capacity is required to fill out a monthly activity report detailing every action taken to both deter and prevent crime. When the UF250 form (filled out after every stop) was added to the activity sheet, an assumed unspoken minimum monthly number came; and civil liberties went.

There were a number of police officers simply afraid to approach the known criminals, so the round kid coming home from school with a backpack and a basketball, the minister walking out of church in a suit, and the 70 year old man standing on the sidewalk in front of his own home all became easy stops and simple non-confrontational ways to make the quota. If you are a reasonable person, the examples I've provided probably sound completely ridiculous to you, and they should. The individuals involved in criminal activity had no reason to complain about being stopped, frisked, questioned, or even detained (no matter the unconstitutionality of the practice at times) because this was a part of the life they chose; "part of the game", as it is said on the street. We were winning battles. But when the abuse of stop and frisk began, we lost the war. Parents, clergy, assembly persons, even congressmen and women began to push back after hundreds of thousands of illegal, unnecessary, and humiliating stops were made just to satisfy a number in a box on a spreadsheet.

Help and Harm

If you follow local and national news outlets, you may already know that a few years ago the laws and practices surrounding Stop, Question, and Frisk were deemed unconstitutional and brought to a complete halt before overhaul. The law abiding citizens were helped to walk freely and un-bothered by a few bad apple police officers, but how are we to protect them from the increase in gun toting criminals benefiting from the new rules? Some might call it a catch 22, but I will state the reality of the entire situation: quotas are detrimental to civilians and police officers.

There, Not Here

In Part II I will discuss Selective Enforcement. Once I was transferred into Manhattan, I truly realized that people were treated differently based on the neighborhood they lived in, their ethnic background, and their ability to afford quality legal representation. I learned that the way you policed over "There" was not acceptable "Here".

The Young Lawyers Section's Fall Meeting will take place from Friday, September 30, 2016 to Saturday, October 1, 2016 in One Elk Street, Albany, New York 12207.

The meeting includes the Young Lawyers Section Executive Committee Meeting on Friday at 3:00 p.m. (all attendees are welcome to attend), a tour of the Court of Appeals at 5:30 p.m., a cocktail reception at 7:30 p.m., and CLE programs on Saturday.

If you are interested in attending, please register at http://www.nysba.org/store/events/registration.aspx?event=YOUNFA16

By: Eric Dostal, J.D.

My wife and I recently purchased our first home, which was not nearly as fun as an episode of HGTV's House Hunters makes it out to be. After actively searching for months and putting offers in and losing out on six different houses, we finally grabbed the brass ring with our new home. To do that we had to beat out seven competing offers after seeing the home for only 20 minutes during an open house on its first day on the market. Overall it was a stressful experience, but we ended up with a beautiful home that will serve our family well.

One aspect of the process that I was able to control was our mortgage application. My legal background and experience as an advisor uniquely qualified me to find and obtain the best mortgage for our particular needs. That being said, going through the process myself made me realize how truly confusing it can be. There are many factors to consider when obtaining financing for your home.

The first thing you need to determine is how much you can spend on your new home. The amount that you can borrow will generally depend on four main factors: 1) the size of your down payment; 2) your credit score; 3) your debt-to-income ratio and 4) your monthly maintenance expense. All of these factors will impact the interest rate you can obtain from your lender and the size of your monthly payment, which should correspond with your overall cash flow so that you can continue to live without feeling like you are chained to your new home ("house rich and cash poor").

Your down payment is the amount of money you already have saved to buy your new house, typically between 5-20% of the purchase price of the home. If you are obtaining a conforming loan[1] and putting less than 20% down, you may be required to obtain private mortgage insurance (PMI) which protects the lender in case of default. On average you will also need an additional 2-5% of the purchase price to cover closing costs and other expenses such as attorney's fees, appraisal fees, mortgage recording fees, transfer taxes, title insurance premiums, etc.

Your credit score, or FICO score, is derived from the information found on your credit report as reported by the three major credit bureaus (TransUnion, Equifax & Experian). Each bureau generates a separate FICO score ranging from 350 to 850, and you should review each one before applying for a mortgage. Your credit report includes:

1. Payment history (Have you made payments consistently and on time?)
2. Debt utilization percentage (What percentage of your available credit are you currently using?)
3. Length of credit history (How many years have you been borrowing?)
4. Types of credit (Do you have a mix of credit cards, student loans, car loans?)
5. Applications for new credit (Have you applied for new lines of credit in the recent past?)
6. Negative comments (Do you have any outstanding judgments, liens or recent bankruptcies?)

You can expect to obtain competitive mortgage interest rates if your score is 720 or above, which may allow you to borrow more than you otherwise would have.

Your debt-to-income ratio (DTI) is expressed as a percentage and is calculated by taking your monthly debt and dividing it by your gross monthly income. For example, if you have a student loan payment of $750 per month, a car payment of $325 per month, a minimum credit card payment of $120 per month, and a gross income of $12,500 per month, your DTI (before your mortgage) would be 9.56% [($750+$325+$120)/$12,500]. A DTI of less than 36% can qualify for most mortgages - the lower your DTI, the more you can potentially borrow for your new home. In the above example, you could add a maximum monthly mortgage obligation of ~$3,300 to obtain a DTI of 36%. Typically, however, it is inadvisable to obtain a mortgage that equates to your maximum monthly obligation as it will severely limit your ability to obtain your other financial goals.

Your monthly maintenance fees are comprised of all of the expenses that go along with homeownership that are not factored into your monthly principal and interest payment. Some items, like your property taxes or homeowners insurance, may be escrowed[2] by your mortgage provider. Other costs, like utilities, association dues, and other upkeep may fluctuate from month to month but should be considered as part of the overall cost of your home.

Another important factor to keep in mind are the rules governing the deduction of mortgage interest on your federal income taxes. For a "qualified home," the IRS allows an individual to deduct the interest charged on up to $1 Million of home acquisition debt (used to buy, build or improve a home), and up to $100,000 of home equity debt (used for anything other than to buy build or improve a home). This is an itemized deduction subject to the phase-out regulations established by the Taxpayer Relief Act of 2012, meaning that depending on your filing status and adjusted gross income you could lose up to 80% of it. To the extent you are able to deduct the interest paid on your mortgage, in turn reducing your income tax burden, you may be able to increase the purchase price of your home.

Once you have your purchase price in mind, the next decision you should tackle is what type of mortgage product you should obtain. There are many different types of mortgages but they generally fall into two main categories: 1) fixed rate mortgages, in which the interest rate is fixed for the life of the loan; and 2) adjustable-rate mortgages (ARM), which adjusts based upon the rate of an underlying index following the completion of a fixed-rate period (3-10 years on average). Typically the interest rates for ARMs are lower than those for fixed rate mortgages, because the lender assumes less interest rate risk.

As a general rule, you want to match the fixed rate period of your loan to the time you will be in your home. Remember that when you sell your home, you do not have the ability to take your mortgage with you. Why pay more for a 30 year fixed rate when you anticipate moving in the next 5-7 years? Alternatively, if you are looking at your "forever home," then a 30 year fixed can make a great deal of sense, especially in today's low interest rate environment.

The decision to buy a home should not be entered into lightly. It is a major decision that brings with it many consequences. Luckily, with a little planning, some guidance and a pinch of optimism, you, too, can accomplish your dream of home ownership.

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[1] A conforming loan is a loan that meets all the requirements set out by Fannie Mae and Freddie Mac. Fannie and Freddie are organizations that were created by Congress to create stability in the mortgage market by acting as mortgage buyers. This provides mortgage originators, banks and credit unions, the liquidity they need to issue mortgages. Generally, if you borrow $417,000 or less (this can increase to $625,500 in some high-priced markets) your loan will be considered a conforming mortgage.

[2] An account set up by your lender to collect payments of property taxes and homeowners insurance premiums that will be collected on a monthly basis and then paid on your behalf, typically annually or bi-annually. The costs of these items are part of your monthly mortgage payment.

Eric Dostal, J.D. is an Advisor at Sontag Advisory working with clients to develop and oversee investment, insurance, retirement, tax and estate planning strategies. Eric obtained his BA in History, magna cum laude, from the State University of New York College at Geneseo in 2010. He earned his J.D., cum laude, from St. John's University School of Law.

This article was previously published on Sontag Advisory Blog on August 23, 2016 at http://www.sontagadvisory.com/blog-entry/taking_on_debt/

By: Luwick Francois, Esq.
Section Liaison

The Labor & Employment's Fall Section Meeting is closely approaching. The meeting, which takes place in Washing D.C. from September 22 - 25, will be a great opportunity for members of the Young Lawyers Section currently practicing or interested in practicing in the field of Labor & Employment law. Below are the three reasons why this meeting is worth attending.

1. Speakers. The panelists scheduled to speak at the Fall Meeting are leaders in Labor & Employment law, working in various settings including law firms, in-house and government. Speakers include David Lopez, Esq., General Counsel at the Equal Employment Opportunity Commission, Richard Griffin, Jr., Esq., General Counsel at the National Labor Relations Board, Phyllis Taylor, V.P. of Legal Services at Consolidated Edison, to a name a few. Attendees will have the opportunity to hear from the leading authorities in federal, state and local Labor & Employment law.

2. Programming. The program has a little bit of everything for those practicing in the extensive field of Labor & Employment law. Topics cover current hot topics of discussion including LGBT rights in the workplace, pay equity/gender pay disparity, controversial issues in disciplinary cases, and accommodating mental health disabilities in employment.

3. Meet & Greet with Supreme Court Justice/U.S. Capitol Trip. The Fall Meeting will have a ticketed meet & greet with the "Notorious RBG", Supreme Court Justice, Ruth Bader Ginsburg. The tickets for this exciting event are sure to run out (if it hasn't already). A tour of the U.S. Capitol is sure to fill up quickly as well.

The Fall Meeting should be a great opportunity to learn and communicate with the leading practitioners of Labor & Employment Law in New York State. Members of the Young Lawyer Section will have ample opportunity to discuss developing legal concepts with colleagues and occasions to connect with additional practitioners during the various workshop and networking events. To view the program and register online, click on the following links below.

Program: http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=66295

Register Online: http://www.nysba.org/store/events/registration.aspx?event=LABRFA16

Registration Form: http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=66296

By: James Ng, Esq.

In response to the need for creditors to have a viable remedy against evasive debtors, the New York legislature enacted the New York Uniform Fraudulent Conveyance Act (NYUFCA) in order to provide an adequate remedy against debtors seeking to elude payment. Article 10 DEBT. & CRED. NYUFCA "declares as of no effect in so far as the creditor is concerned, certain kinds of transfers on the part of the debtor." Hearn 45 St. Corp. v. Jano, 283 N.Y. 139, 142 (N.Y. 1940).

NYUFCA proscribes two kinds of fraudulent transfers: constructive fraud and actual fraud. DEBT. & CRED. §§ 273-275. Constructive fraud "encompasses any transfer which [1] is made by an insolvent or renders the transferor insolvent; [2] is made after the docketing of a judgment or during the pendency of an action which results in a money judgment; [3] leaves the transferor with unreasonably small capital to carry out his business; or [4] is made at a time that the transferor intends to incur other debts beyond his ability to repay, as long as such transfer is made without a fair consideration." Taberna Perferred Funding II, Ltd. v. Advance Realty Group, LLC, 45 Misc. 3d 1204(A), 1204A (Sup. Ct. 2014), internal citations omitted. Regardless of the debtor's intent, a constructively fraudulent transfer consists of a transfer which "had not been made for fair value" or "not made in good faith." Id., internal citations omitted.

On the other hand, actual fraud involves a conveyance by the debtor with "actual intent...to hinder delay, or defraud either present or future creditors." DEBT. & CRED. § 276. In order to gauge whether a transfer was made with actual fraudulent intent, courts consider various "badges of fraud to establish an inference of fraudulent intent." UBS Sec. LLC v. Highland Capital Mgt., LP, 30 Misc. 3d 1230(A), 1230A (Sup. Ct. 2011), internal citations omitted. These "badges of fraud" factors include: "(1) a close relationship between the parties to the transaction, (2) a secret and hasty transfer not to in the usual course of business, (3) inadequacy of consideration, (4) the transferor's knowledge of the creditor's claim and his or her ability to pay it, (5) the use of dummies or fictitious parties, and (6) retention of control of the property by the transferor after the conveyance." Id. citing Wall St. Assocs. v. Brodsky, 257 A.D.2d 526, 529 (1st Dep't 1999); Shelly v. Doe, 249 A.D.2d 756, 758 (3d Dep't 1998).

Accordingly, once a transfer has been declared fraudulent, whether constructively or with actual intent, under the statute, the creditor may seek to have the transfer set aside, annulled, or attached. DEBT. & CRED. § 278.

NYUFCA has been used to reach constructively fraudulent transfer. In K.B.K. Huntington Corp. v. James Anthony Cleaners, Inc., the plaintiff made an adequate showing of constructive fraud when the defendants transferred the assets of a prior, debtor business to a successor business in order to make the debtor business "insolvent and unable to satisfy the judgment obtained by the plaintiff." K.B.K. Huntington Corp. v. James Anthony Cleaners, Inc., 2011 N.Y. Misc. LEXIS 2517, at *7 (Sup. Ct. May 19, 2011). Correspondingly, in UBS Sec. LLC v. Highland Capital Mgt., LP, constructive fraud was properly pled where plaintiffs showed that defendants wrongfully transferred millions of dollars in order to evade the collection of contractual obligations by plaintiffs. UBS Sec. LLC v. Highland Capital Mgt., LP, 30 Misc. 3d 1230(A), 1230A (Sup. Ct. 2011).

On the other hand, NYUFCA has been applied to assert claims for conveyances with actual fraudulent intent. In Flushing Sav. Bank v. Parr, the plaintiff lodged a viable claim to avoid a transfer that was made with the fraudulent intent of preventing a foreclosure action by keeping disputed property within a bankruptcy estate. Flushing Sav. Bank v. Parr, 81 A.D.2d 655, 655-656 (2d Dep't 1981). In Shelly v. Doe, the plaintiff properly demonstrated that the defendant's "hurried, nonbusiness transfer" of assets while legal action was pending against him constituted a transfer with actual fraudulent intent. Shelly v. Doe, 249 A.D.2d 756, 758 (3d Dep't 1998).

James Ng is an Associate Attorney with Samuel Goldman & Associates and focuses primarily on shareholder and partnership litigation. He holds law degrees from the Benjamin N. Cardozo School of Law and New York University School of Law. He can be contacted at jcn303@nyu.edu.

By: Courtney Radick, Esq.
Section Liaison

NYSBA Ethics Opinion 1098

In June 2016, NYSBA issued an Ethics Opinion following commentary submitted to the Ethics Committee by several groups, including the Criminal Justice Section.

Topic: Criminal law; Prosecutor Conditioning Plea Bargain on Defendant's Waiver of Ineffective
Assistance of Counsel Claims
Digest: A prosecutor may not ethically require, as a routine condition of a plea bargain that a
defendant waive ineffective assistance of counsel claims.
Rule: Rule 8.4(d)

FACTS

1. In N.Y. State 1048 (2015) we considered whether a defense lawyer may ethically advise a
defendant whether to accept a plea bargain that includes a waiver of future claims of ineffective assistance of counsel ("IAC"). We concluded that a per se personal-interest conflict under Rule 1.7(a) does not arise. Instead, we concluded that determining whether advising as to an IAC waiver creates a personal-interest conflict for the defense lawyer -- and whether any such conflict is waivable - requires a case-by-case inquiry. We expressly left open the question, however, whether a prosecutor is ethically prohibited from routinely requiring IAC waivers as a condition of a plea bargain. We now consider that open question.

The full opinion is available on NYSBA's website.

YLS Trial Academy Scholarship Application Deadline

The Criminal Justice Section is pleased to co-sponsor the NYSBA Young Lawyers Section's annual Trial Academy and offer two scholarships to attend the Academy.
The Young Lawyers Section Trial Academy is the New York State Bar Association's only comprehensive trial training program. This intensive 5-day trial techniques and advocacy program is geared toward young and new lawyers - teaching, advancing, and improving the quality of their experience in the courtroom, in order to benefit their careers and their client's interests.

The Trial Academy will be held on Wednesday, April 5, through Sunday, April 9, 2017.

Participating in the Trial Academy is the perfect opportunity to gain critically important trial experience outside of the courtroom. Participants attend a morning lecture on an aspect of a trial and spend the afternoons in small groups with their designated team leader demonstrating the day's trial skill from a previously provided fact pattern. One-on-one critiques will be provided by a rotating faculty made up of NYSBA leadership and leading litigators, advocates and Judges from every region of New York.

The Trial Academy is open to any attorney wishing to learn or improve upon their trial skills and provides a unique opportunity for participants to have a meaningful experience which extends beyond a typical classroom setting.

To apply for the Criminal Justice Section's Trial Academy scholarship, please complete the application form and submit by January 1, 2017.

The scholarship is a full tuition scholarship; the attendee is responsible for room, travel, and some food. Scholarship recipients will be notified by the end of January.

For more information, please email Amy Jasiewicz at ajasiewicz@nysba.org or phone/digital fax at 518.487.5682.

Criminal Justice Section Awards

Nomination Deadline Date: Friday, October 14, 2016
For more than 30 years, the NYSBA Criminal Justice Section has presented awards for outstanding service in the criminal justice system. The awards have expanded to include 12 different award categories representing the many different aspects of the criminal justice system. Awards are presented at the Section's luncheon during the NYSBA's Annual Meeting in New York City in January, and some awards may be presented during the Section's Spring Meeting traditionally held each May in upstate New York. Anyone is welcome to submit a nomination.

Persons who are ineligible for an award:
Previous award winners in a category will not be approved again in the category. A person may be nominated and approved for an award in a different category after 3 years. Check to see if your nominee is listed in the Alphabetical Listing of Past Award Recipients.

Submissions:
You may nominate in one or more categories by submitting an additional ballot/s; however, you are urged to supply supporting documentation and comment for each nominee of at least 25-50 words describing the nominee's significant achievements.

You must disclose how you know the nominee. For example: You work on a committee with the person; s/he was your adversary or represented a co-defendant in a trial; s/he is your employee/er, relative or friend; you read about the person on the media.

There are two ways to submit a nomination:

1. Submit your nomination online at Additional documentation is strongly recommended and can be submitted to Amy Jasiewicz via e-mail at ajasiewicz@nysba.org or mailed to:
Amy Jasiewicz
Section Liaison, NYSBA
One Elk Street, Albany, NY 12207

2. Download and print the Nomination Ballot, and mail the completed ballot and supporting documentation to Amy Jasiewicz.

Criminal Justice Section moves solely to Online Community

The online Community offers more security and customization than the listserve, and can function like a listserve if you prefer to post, view, and respond to Community discussion threads from your e-mail. In addition, you know who the message is coming from on the Community as signatures are automatic.

The Community also offers a Resource Library, which can serve as an unlimited repository of information, such as reports, legislative information, forms or meeting minutes/agendas. Any member of the Section's Community may add or access information in the library. You can post to the library by attaching a file just like you do for email. The library can accept all file types (PDFs, documents, spreadsheets, presentations, audio files, videos and even links) up to 5GB per file.

Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

ALREADY A MEMBER OF THIS SECTION? JOIN A COMMITTEE!
Are you interested in volunteering for a Section Committee? Please email Megan O'Toole at motoole@nysba.org and indicate the committees you wish to join.

Electronically In Touch is the electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member-driven publication that encourages YLS members to write articles. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison at srgrandison@gmail.com by the 1st of each month.

The Officers of YLS and the Editor of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not represent the thoughts and opinions of the New York State Bar Association, Young Lawyers Section, its Officers, and Executive Committee.