April 2008 Archives

Google Earth 4.3 released

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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.


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."
Read entire article.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 04/29/08

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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.


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".


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.


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.

Stimulus Payments Update

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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.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court - 4/28/08

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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.

NYTIMES: Lawyers Open Their File Cabinets for a Web Resource

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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.

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).


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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

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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.

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 04/24/08

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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."


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.


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.


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.


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.

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 04/23/08

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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.

Stimulus Payments Update-Payment Schedule

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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.

Department of State Move Date

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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

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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.
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)

The Register Reports: Fring brings Skype to the iPhone

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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.

Read the entire Register report.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court - 4/16/08

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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)


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.

FINDLAW:Daily Opinion Summaries for U.S. Supreme Court - 4/15/08

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US v. Clintwood Elkhorn Mining Co., No. 07-308
The plain language of 26 U.S.C. sections 7422(a) and 6511 requires a taxpayer seeking a refund for a tax assessed in violation of the Export Clause, just as for any other unlawfully assessed tax, to file a timely administrative refund claim before bringing suit against the government.


MeadWestvaco Corp. v. Illinois Dep't of Revenue, No. 06-1413
In a case raising the issue of whether Illinois constitutionally taxed an apportioned share of the capital gain realized by Mead, an out-of-state corporation, on the sale of one of its business divisions, Lexis/Nexis, a judgment in the state's favor is vacated and remanded where: 1) the state courts erred in considering whether Lexis/Nexis served an "operational purpose" in Mead's business after determining that Lexis and Mead were not unitary; and 2) an alternative ground for affirmance was neither raised nor addressed in the state courts, and thus, would not be considered.

"Legal Technology - Carry Your Office in Your USB Thumb Drive"

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From an excellent article by Brett Burney in Law Technology News.



If you want to take the "portable office" idea a step further, consider the PortableApps Suite, from Rare Ideas. It is a bundle of open source programs designed to run completely from a USB memory drive. Open source means you won't see Microsoft's Word as part of the suite, but you can use viable options such as OpenOffice Writer or AbiWord Portable. Instead of Microsoft Outlook, you can use Thunderbird (from the Mozilla Foundation, the same folks who bring you the Firefox Web browser). Because all of the software is released under the open source model, it's free.


PDF Online

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Convert to PDF for Free

PDF Online claims it converts more than 20,000 documents to PDF per day.

It converts these formats into PDF:

-MS Word (DOC | RTF)
-MS PowerPoint (PPT)
-MS Publisher (PUB)
-MS Excel (XLS)
-Text (TXT)

I can never figure out what to do when I receive a MicroSoft Publisher document. Publisher has no Mac or Linux equivalent and, unlike most other programs, there is no conversion available. The best solution one can come up with is to find a way to convert the Publisher file to pdf. A little searching came up with PDF Online. The site is covered with ads; but it does what it says it will; i.e., convert the Publisher file I uploaded and email it back to me as a pdf attachment. There was no charge. You can't ask for more than that.

Another Excellent Short Practice Piece By Allison C. Shields:


Do you have some some clients that you would rather not work with? Do you cringe when you know a particular client is on the telephone or wants to schedule a meeting with you? Do you have clients that consistently fail to see the value of the work that you do? Are some of your clients uncooperative? Do you have clients that fail to pay their bills on time? Do some of your clients question everything you’re doing? Do you have clients that are disrespectful to your or your staff? Do you avoid some clients because their work is boring or outside of your comfort zone?

If you've answered yes to any of the above, it may be time for you to fire a client or two.


For the entire article click here.

Massachusetts Supreme Judicial Court Oral Arguments

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Commonwealth v. Ora

First Amendment-- The Commonwealth is appealing a District Court order allowing a defendant's motion to dismiss a criminal complaint for open and gross lewdness where the judge ruled that the defendant's nude dancing was protected by the First Amendment.

Enjoy commentary by Robert Ambrogi.


For more oral arguments before the SJC.


Kaye Sues State Over Judicial Salaries

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By Joel Stashenko and Daniel Wise
April 11, 2008

ALBANY - Stymied for a fourth straight fiscal year in securing a pay raise for state court judges, Chief Judge Judith S. Kaye sued the Legislature and Governor David A. Paterson yesterday to force the first judicial salary increase in New York since 1999.

At about the time attorney Bernard W. Nussbaum was filing the complaint in Supreme Court in Manhattan at 60 Centre Street, Chief Judge Kaye and Chief Administrative Judge Ann Pfau (sent a message to the 1,300 judges saying that the exclusion of a pay raise in the budget adopted in Albany on Wednesday was the last straw.

"At this point, we are left with no choice but to take legal action to address this intolerable situation," the judges said. They called the need to file a suit, first threatened by the chief judge in April 2007 but often cited by her since then as a last resort, as "regrettable."

The complaint, Kaye v. Silver, names the chief judge and the Unified Court System as plaintiffs. The defendants are Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph Bruno, Mr. Paterson and the State of New York.

The New York Law Journal - Kaye Sues State Over Judicial Salaries

A 'Balanced Life' Is Increasingly Rare for Lawyers, Concludes N.Y. Bar Report
Committee chair says biggest surprise was how many firms allow flexible schedules, at least on paper. But they don't get used
Joel Stashenko
New York Law Journal
April 9, 2008

M. Catherine Richardson says she has a message for young associates she finds working at her firm's office on Saturdays.

Their presence at their desks means they are not spending free time with their families. It is time young attorneys may think they can spare but which they really cannot, as her own life proved, she said.

"My dad died when I was 15 years old," Richardson said. "If my mother had not put her foot down that, 'Weekends are for your family,' we wouldn't have known my dad at all."

Richardson said the cherished time she did get with her father, George Richardson, a one-time city of Syracuse corporation counsel, informed her work as chairwoman of the New York State Bar Association's Special Committee on Balanced Lives in the Law.

The committee's report, adopted unanimously by the Bar's House of Delegates on Saturday, concluded that being an attorney is an ever-more demanding profession in which practitioners are finding less time for families or for the citizenship activities that have been the traditional obligation of lawyers.


Read entire article.

FINDLAW: Texas 'Pole Tax' on Strip Club Patrons Unconstitutional

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(Travis County Dist. Ct., Texas - March 28, 2008) - A Texas judge ruled that the state's $5 'Pole Tax' on strip club patrons is unconstitutional under the First Amendment.

RSVP for NDNY Admissions Ceremony, CLE & Luncheon on 4/10/08

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Dear NDNY Member:

You are cordially invited to attend an admissions ceremony and free CLE program at the U.S. District Courthouse in Syracuse on Thursday, April 10th from 10:00 a.m. to 12:00 p.m. The CLE topic is "Removal Jurisdiction - Making it a Federal Case" (1.5 hrs. CLE credit).

A complimentary luncheon at Pascale's Restaurant with members of the Federal Judiciary will follow the CLE program.

Please see the invitation for additional details:


For CLE registration and lunch reservations, please RSVP by April 7th by e-mailing tmoyo@bsk.com.

Board of Directors
NDNY Federal Court Bar Association, Inc.

Law.com - N.Y. Judge Rejects Ex-Wife's Bid for Lifetime Maintenance

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N.Y. Judge Rejects Ex-Wife's Bid for Lifetime Maintenance
Vesselin Mitev
New York Law Journal
April 3, 2008

Noting that Americans are living longer with fewer financial resources, a Long Island, N.Y., judge has refused to order a 59-year-old car salesman to pay lifetime maintenance to an ex-wife with health problems.

"[W]hile a non-durational maintenance award in this case might assuage the Court's concerns for the wife's future financial well being, it would do so at the expense of enslaving the historic wage earner to indefinite years of employment beyond any reasonable expected retirement," Supreme Court Justice Anthony J. Falanga of Nassau County wrote in J.S. v. J.S.

Falanga found that Mr. S. has "no choice but to work full time" until he turns 65 and has the ability to work until he is 70 in order to provide for his ex-wife.

Thus, he ordered Mr. S. to pay a monthly stipend of $3,000 only for 10 years. The payments will stop should Ms. S. remarry or either party die during that period.

The case, according to attorneys familiar with the issues, is illustrative of a trend -- Americans are living longer and in relatively good health while facing a diminishing income as they pass retirement age. This presents a unique challenge to courts in projecting what amount someone facing retirement should have to pay for maintenance of a former spouse.


Read entire article.

Free Online Version of the 2007 Codes of New York State

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The 2007 Codes of New York State can now be viewed online. Covered in all 9 code books are provisions governing Building, Fire Prevention and Energy construction in New York State. The new free online version allows access to the Codes of New York State by code section, which also allows for cutting and pasting of relevant code text into other documents.

PLoL Offers Free Case Law Online

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The March 18 New York Law Journal carried a short piece on a new website, the Public Library of Law (PLoL for short), which purports to be the largest collection of free case law anywhere. Here's a rip from their main page:

Searching the Web is easy. Why should searching the law be any different? That's why Fastcase has created the Public Library of Law -- to make it easy to find the law online. PLoL is the largest free law library in the world, because we assemble law available for free scattered across many different sites -- all in one place. PLoL is the best starting place to find law on the Web.
What is available on PLoL?
Cases from the U.S. Supreme Court and Courts of Appeals

Cases from all 50 states back to 1997

Federal statutory law and codes from all 50 states

Regulations, court rules, constitutions, and more!

PLoL also includes free links to paid content on Fastcase. PLoL is already the Web's largest free law library, but with additional links from Fastcase, it is one of the most comprehensive law libraries in the world.
Check out the site at www.plol.org.


The above post is courtesy of our fellow section blogger, Paul Gillan, whose Supraspinatus (health law) blog is worth a place on your favorites, bookmarks, and feeds.

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