General Practice Section

IronKey: Privacy Protection from an Encrypted Flash Drive

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ADMINISTRATIVE LAW, EVIDENCE, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

In the Matter of IG Second Generation Partners L.P. v. New York State Div. of Hous. and Cmty. Renewal, No. 67
In an appeal addressing whether the Division of Housing and Community Renewal (DHCR) had the authority to cancel rent arrears owed by a rent-stabilized tenant as a result of DHCR's resolution of an unusually protracted fair market rent appeal, the court of appeals rules that DHCR did not have the authority under the circumstances of this case.

COMMERCIAL LAW, CONSUMER PROTECTION LAW, CONTRACTS, CORPORATION & ENTERPRISE LAW, EVIDENCE, INJURY AND TORT LAW

Pludeman v. N. Leasing Sys., Inc., No. 64
The court of appeals rules that plaintiffs sufficiently pleaded a cause of action for fraud against individually-named corporate defendants pursuant to CPLR 3016(b) where it was not unequivocal, as a matter of law, that a finder of fact could not reasonably infer the requisite knowledge or participation by the individual defendants in an act of fraud.

CRIMINAL LAW & PROCEDURE, EVIDENCE

People v. Umali, No. 66
Conviction for manslaughter in the first degree is affirmed where: 1) precluding defendant from speaking to counsel about his testimony during a trial recess did not deprive his right to counsel, as the ban on attorney-client communication was rescinded promptly after defendant's protest; 2) the jury charge as a whole accurately stated that the government had to disprove the justification defense beyond a reasonable doubt; and 3) defendant's remaining contentions were either unpreserved, meritless, or harmless.

Stimulus payments directly deposited into IRAs and other tax-favored accounts may be withdrawn tax-free and penalty-free. See news release IR-2008-68.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates. Also in Spanish.

Law Practice Magazine :: Optimizing Your Web Site: The ABC's of SEO

By Sharon Nelson and John Simek of Sensei Enterprises

Lawyers are constantly asking what single investment they can make to help grow their practices. Well, a not-to-be forgotten principle is that monies sensibly invested in Web sites will always return the investment. The bedrock element of “sensibly” involves optimization to attract visitors.

Recently we taught a seminar on legal Web sites and part of it, of course, was about search engine optimization (SEO)—which, essentially, is the art of properly constructing your site to get the highest possible rankings from search engines. Rather to our surprise, we learned from participants’ comments that many lawyers now understand how important search engine optimization is—but they also remain fairly clueless about how to achieve it.
To help rectify the situation, let’s address the fundamental questions about SEO to greatly up the odds that you invest in a first-class, creative Web site and that you know what to watch from there. Please bear with us—if you can absorb the material that follows, you will be well on your way to developing a site that really helps your bottom line.
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Read entire article with helpful list of "do's and don'ts" to optimize your web site.
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Hat tip to LegalEase blog.

ADMINISTRATIVE LAW, EVIDENCE, PROPERTY LAW & REAL ESTATE

In the Matter of Pantelidis v. New York City Bd. of Standards and Appeals, No. 129 SSM 6
The order of the Appellate Division is affirmed, with costs, and the certified question is not answered upon the ground that it was unnecessary.

CIVIL PROCEDURE, CONSTRUCTION, CONTRACTS, INJURY AND TORT LAW, INSURANCE LAW, PROPERTY LAW & REAL ESTATE, REMEDIES

Worth Constr. Co., Inc. v. Admiral Ins. Co., No. 52
In a coverage dispute brought by a general contractor arising from injuries sustained by a worker on a staircase installed by a subcontractor, a ruling finding that subcontractor's insurer had a duty of defense and indemnity is reversed where: 1) the victim's injury stemmed from slipping on fireproofing material applied by an entirely separate company unaffiliated with insured-subcontractor; and 2) because the general contractor admitted that its claims of negligence against subcontractor were without factual merit, it conceded that the staircase was merely the situs of the accident, and thus foreclosed arguments of any connection between the victim's accident and the risk for which the coverage was intended.

CONTRACTS, HEALTH LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE, REMEDIES

P.A. Bldg. Co. v. City of New York, No. 59
In a landlord-tenant dispute involving whether asbestos abatement costs incurred by the landlord were "operating expenses" under the relevant terms of a commercial lease, judgment for landlord awarding additional rent due including amount of interest accrued is reversed and remanded where: 1) the underlying asbestos abatement costs were not "operating expenses" within the meaning of "escalation provisions" in the lease agreement; and 2) the interest amount on additional rent due should have been calculated from the date which an audit resisted by the landlord was finally commenced.

CORPORATION & ENTERPRISE LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE, PUBLIC UTILITIES

Jericho Water Dist. v. One Call Users Council, Inc., No. 69
With respect to Gen. Bus. Law section 761, which requires apportioning the costs of the "one-call notification system" among the operators of underground facilities who belong to it, but exempts "municipalities" from paying a share of the costs, the court of appeals rules that a "water district" is not a municipality for these purposes and must pay its share of the cost.

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING, TRANSPORTATION

People v. Cabrera, No. 61
In a criminal case arising from a traffic accident wherein sober defendant-driver's excessive speeding claimed the lives of three passengers, conviction for criminally negligent homicide and third-degree assault is reversed and dismissed where, although defendant's excessive speeding behavior was negligent and unquestionably "blameworthy", the evidence adduced at trial did not establish that circumstances surrounding the accident amounted to the kind of "morally blameworthy" component required to infer defendant's criminal negligence.

The newest version of Google Earth enables you to see 41 new cities in
3D, including Boston, Tampa, Zurich, Hamburg and Tokyo, along with
much faster 3D building rendering, new navigation control down to
street level, the ability to view the sun at any time of the day, and
more. They've also brought Street View from Maps to Earth and added 12
new languages.

http://earth.google.com

Vesselin Mitev and Daniel Wise
New York Law Journal
April 30, 2008

Chief Judge Judith S. Kaye wrote New York Gov. David A. Paterson Tuesday to assure him that reports of judicial "slowdown" were "without basis."

In addition, the court system's Advisory Committee on Judicial Ethics issued an opinion Monday determining that Kaye's recent lawsuit to compel an increase in judicial salaries does not require judges to recuse themselves, but they may do so as a matter of individual conscience.

On Monday, Paterson cautioned the state's judges against engaging in any tactic that would slow litigation in order to press their case for a raise. A day earlier The New York Post had reported that increasing numbers of judges, most of them upstate, were refusing to hear cases where law firms with state legislators as members are appearing before them.

In her letter to Paterson Tuesday, Kaye wrote, "while some judges have individually chosen to recuse themselves from matters in which legislators or their firms appeared before them, there has not been -- nor will there be -- an adverse impact on litigants."
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Read entire article.

CIVIL PROCEDURE, CONTRACTS, FAMILY LAW

In the Matter of M. S v. E. S., No. 63
In a proceeding wherein wife sought an upward modification of maintenance and child support in a written separation agreement, judgment that the parties were bound by the terms of the separation agreement is affirmed where the Family Court lacked subject matter jurisdiction to entertain the spouse's application for increased spousal maintenance.

CIVIL PROCEDURE, EVIDENCE, INJURY AND TORT LAW

Wilson v. Galicia Contracting & Restoration Corp., No. 65
In a personal injury action arising when plaintiff was walking under scaffolding assembled by defendant and a piece of material fell in his eye, a judgment and award for plaintiff is affirmed primarily where: 1) a claim that CPLR 3215 (f) renders the judgment a nullity was not preserved; and 2) the courts below correctly held that, due to its failure to comply with a self-executing conditional order, defendant was precluded from introducing any evidence at the inquest "tending to defeat the plaintiff's cause of action".

CRIMINAL LAW & PROCEDURE, SENTENCING

People v, Sparber, No. 53
In appeals considering whether defendants were entitled to relief of their statutory obligation to serve a term of post-release supervision (PRS) because sentencing courts failed to pronounce their PRS terms in accordance with Crim. Proc. Law sections 380.20 and 380.40, the court of appeals concludes that the procedure through which PRS was imposed upon the defendants was flawed, as it did not comply with the statutory mandate. However, in remedying this error, rather than striking the PRS from the sentences, the matters are remanded for resentencing and the proper judicial pronouncement of the relevant PRS terms.

CRIMINAL LAW & PROCEDURE, SENTENCING

In the Matter of Garner v. New York State Dep't of Corr. Serv. , No. 57
The New York State Department of Correctional Services (DOCS) may not administratively add a mandatory period of Post-Release Supervision (PRS) onto a prisoner's sentence when the PRS term was never pronounced by the sentencing judge, as Crim. Pro. Law 380.20 and 380.40 collectively provide that only a judge may impose a PRS sentence.

Even though April 15 has passed, disabled veterans and others who normally do not file a tax return can still submit a 2007 form to receive a payment. See news release IR-2008-65. Others who have already filed a return may get their payments directly deposited into their accounts starting April 28. News release IR-2008-66 has details.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates. Also in Spanish.

CONSTITUTIONAL LAW, ELECTIONS, GOVERNMENT LAW

Crawford v. Marion County Election Bd., No. 07-21, 07-25
In a suit challenging the constitutionality of an Indiana law requiring citizens voting in person to present photo identification issued by the government, a judgment upholding the law is affirmed where the evidence in the record was not sufficient to support a facial attack on the validity of the entire statute.

Lawyers Open Their File Cabinets for a Web Resource - New York Times

JDSupra.com, a new site, is stocking a free, virtual law library by persuading lawyers to do something highly unusual: to post examples of their legal work online for use by one and all, no strings attached. Many of the documents are articles and newsletters that can be understood by ordinary mortals who want more background on a legal issue, or who would like to find lawyers with expertise in a particular area.

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OTHER innovations in virtual law libraries are concerned with new search technology for legal information on the Web. Thomas Smith, a law professor at the University of San Diego, is the co-creator of a search engine called PreCYdent, now in the beta, or testing, stage, that uses legal citations to find related information (www.precydent.com).

Northern District of New York Federal Court Bar Association

The NDNY-FCBA was constituted to provide a forum to promote a more effective exchange of ideas between the practicing bar and the federal court as well as to provide educational and social programs for attorneys and court personnel.

Upcoming Events

Federal Criminal Defense Practice Update
Tuesday, April 29, 2008, 8:15 a.m. - 4:15 p.m.
View Details (PDF Format)
Registration Deadline Extended & Walk-Ins Welcome

Second Circuit Court of Appeals Sitting, Admissions Ceremony & Reception
Friday, May 16, 2008, 10:00 a.m.
James T. Foley United States Courthouse, Albany, New York
View Details (PDF Format)
Application Deadline: May 8, 2008

Avira AntiVir Personal - FREE Antivirus

Avira AntiVir Personal - FREE Antivirus is a free antivirus solution, that scans your computer for malicious programs (such as viruses, Trojans, backdoor programs, worms, dialers etc.), monitoring every action executed by the user or by the operating system and being able to react promptly when a malicious program is detected.

This version is compatible with computers running Windows 2000, XP, and Vista.

ADMINISTRATIVE LAW, PROPERTY LAW & REAL ESTATE, SECURITIES LAW, TAX LAW

In the Matter of Steel Los III/Goya Foods, Inc. v. Bd. of Assessors of County of Nassau, No. 49, 50
Nassau County Administrative Code (NCAC) section 6-26.0(b)(3)(c) applies to "payments-in-lieu-of-taxes" (PILOT payments), thus making deficits incurred by affected taxing jurisdictions resulting from property over-assessments "a county charge."

ASSET FORFEITURE, COMMERCIAL LAW, DEBT COLLECTION, PROPERTY LAW & REAL ESTATE

Solow Mgmt. Corp. v. Tanger , No. 62
Posting of an appeal bond by a judgment debtor after a marshal has executed a levy on the judgment debtor's assets does not constitute affirmative interference with a marshal's collection process which would entitle the marshal to poundage fees.

CRIMINAL LAW & PROCEDURE, EVIDENCE

People v. Mitchell, No. 51
Conviction for burglary and related charges is affirmed over defendant's claims that his burglary conviction should be reversed because he was indicted only on one count of burglary, yet the trial jury was able to consider two alleged entries into the building, and it was unclear which of those resulted in the conviction.

ETHICS & PROFESSIONAL RESPONSIBILITY, PROPERTY LAW & REAL ESTATE

Rivkin v. Century 21 Teran Realty LLC, No. 68
In a case addressing the scope of fiduciary duty owed by buyer's agents affiliated with a real estate brokerage firm when their principals bid on the same property, the court of appeals rules that, unless a real estate brokerage firm and principal specifically agree otherwise, the firm is not obligated to insure that its affiliated licensees forego making offers on behalf of other buyers for property on which the principal has already bid.

INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW, PROPERTY LAW & REAL ESTATE

Sanatass v. Consol. Investing Co., Inc., No. 60
A property owner is liable for a violation of Labor Law section 240(1) which proximately caused injury to a worker, even though a tenant of the building contracted for the work without the owner's knowledge.

CRIMINAL LAW & PROCEDURE, EVIDENCE

Virginia v. Moore, No. 06-1082
In a case raising the issue of whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law, the Supreme Court rules that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while states are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.

The Supreme Court has ruled that police can conduct searches and seizures of evidence after arrests that sometimes violate state law.

Starting May 2, your clients may be issued their payments. See the schedule.

Check the Economic Stimulus Payments Information Center on IRS.gov for updates.

Also in Spanish.

The Department of State moved its Albany office to a new location on February 15th, 2008. Their new address is:

New York State Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231

National Child Abuse Prevention Month

April is National Child Abuse Prevention Month, a time to raise awareness about child abuse and neglect and encourage individuals and communities to support children and families. Learn more about the history of the month, see examples of Presidential and State proclamations, and find strategies for engaging communities and supporting families.
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Visit the Child Welfare Information Gateway for more information and useful resources. (Formerly the National Clearinghouse on Child Abuse and Neglect Information and the National Adoption Information Clearinghouse)

Fring, the VoIP client that integrates with various VoIP networks including the ubiquitous Skype, is now available for the iPhone - providing exactly the kind of application that Steve Jobs stated wouldn't be allowed.

Fring started out as a mobile client for accessing Skype, though the application now connects to all sorts of networks including MSN, Google pTalk and AIM, thus providing an identity-aggregator for mobile use.

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Read the entire Register report.

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, SENTENCING

Baze v. Rees, No. 07–5439
Kentucky's lethal injection protocol used as its method of execution does not violate the Eighth Amendment's ban on cruel and unusual punishments. (Five concurring opinions and dissent)

CRIMINAL LAW & PROCEDURE, SENTENCING

Burgess v. US, No. 06-11429
The term "felony drug offense" contained in the Controlled Substances Act's (CSA), 21 U.S.C. section 841(b)(1)(A), provision for a 20-year minimum sentence, is defined exclusively by section 802(44) and does not incorporate section 802(13)'s definition of "felony." Consequently, a state drug offense punishable by more than one year qualifies as a "felony drug offense," even if state law classifies the offense as a misdemeanor.