Posted On: October 31, 2008

Susan B. Anthony Votes and Gets Convicted

The following is posted on the November 2008 In Chambers blawg:

A number of years ago when I was prosecuting in Pima County one of the deputies came back from court one day and told us he had made a motion for the trial judge to direct a verdict of guilty. We all laughed at how ridiculous that was; you can’t do that. Then the other day I was browsing through an interesting series of books called American State Trials¦and I came across this:

At the Presidential election of 1872 (A Republican, Rutherford B. Hayes, won it but lasted only one term), Susan B. Anthony, along with 13 women, voted in Rochester, New York. Almost immediately afterward they were arrested and indicted for the offense of knowingly voting without having a lawful right to vote in violation of the Act of Congress of 1870. Only Ms. Anthony went to trial.

At the trial her lawyer, Henry Selden, maintained that because she had consulted a lawyer (him) before voting and had a good faith belief that she was permitted to vote, she had committed no crime. After the government rested its case, Mr. Selden announced that he would call Ms. Anthony as a witness. The government objected, She is not competent as a witness in her own behalf, the prosecutor said, and the judge agreed; her evidence was incompetent, he said.

After closing arguments the judge summarized the evidence with a 7 page written address and concluded: Upon this evidence I suppose there is no question for the jury and that the jury should be directed to find a verdict of guilty. Wait a minute, said the defense, "thats always a question for the jury “ and if they find that she had a good faith belief that it was proper to vote, she isn't guilty.

But the judge wasn't swayed: “I cannot charge these propositions of course. The question, gentlemen of the jury, in the form it finally takes, is wholly a question or questions of law, and I have decided as a question of law, in the first place, that under the Fourteenth Amendment, which Miss Anthony claims protects her, she was not protected in a right to vote. And I have decided also that her belief and the advice which she took does not protect her in the act which she committed. If I am right in this, The result must be a verdict on your part of guilty, and I therefore direct that you find a verdict of guilty. And they did. She was sentenced to pay a fine of $100, but never did. And as far as I know, there was no appeal.

[I guess it takes all kinds even in the courthouse.]

[From American State Trials, Vol. 3, The Trial of Susan B. Anthony; you can also read a transcript of the trial at the Library of Congress web site - www.law.umkc.edu/faculty/projects/ftrials/anthony/sbaaccount.html]

Posted On: October 31, 2008

Selected U.S. Presidential Works from William S. Hein

With a historical presidential election only days away, William S. Hein & Co., Inc. is highlighting some of its presidential works:

Public Papers of the Presidents of the United States:
Containing the Public Messages, Speeches and Statements of the President


The Public Papers of the Presidents of the United States, a reprint series originally published by the Office of the Federal Register, National Archives and Records Administration, began in 1957 in response to a recommendation of the National Historical Publications Commission. Noting the lack of uniform compilations of messages and papers of the Presidents before this time, the Commission recommended the establishment of an official series in which Presidential writings, addresses, and remarks of a public nature could be made available. This set includes the papers of Presidents Kennedy, Nixon, Reagan, Clinton, Bush and many more! Continue to brochure.

Reprinted: Buffalo; William S. Hein & Co., Inc.

The President - Office and Powers 1787-1957
History and Analysis of Practice and Opinion

By: Edward Samuel Corwin

This reprint is primarily a study of American law. Corwin's central theme is the development and contemporary status of presidential powers and of the presidential office under the Constitution. Corwin also analyzes the many important roles of the American President, including Chief Executive, Administrative Chief, Commander in Chief of the Armed Forces, and more. This work is based throughout on Corwin's direct examination of firsthand materials - the debates of the Philadelphia Convention, debates in Congress, Acts of Congress, presidential messages and papers, controversial writings, and press dispatches. Continue to brochure.

Reprinted: Buffalo; William S. Hein & Co., Inc.; 2007

Presidential Signing Statements Under the Bush Administration
A Threat to Checks and Balances and the Rule of Law?

This title, never before offered in print format, is title number 25 in Hein's Electronic Document Reprint Series. In July 2006, a task force of the American Bar Association described the use of signing statements to modify the meaning of duly enacted laws as "contrary to the rule of law and our constitutional system of separation of powers." George W. Bush's use of signing statements is controversial, both for the number of times employed (estimated at over 750 opinions) and for the apparent attempt to nullify legal restrictions on his accounts through claims made in the statements. Continue to brochure.

Reprinted: Buffalo; William S. Hein & Co., Inc.; 2007

Economic Report of the President
Together with the Annual Report of the Council of the Economic Advisors


Published annually as a requirement of the Employment Act of 1946, this Report provides a comprehensive review of economic conditions and trends, desirable objectives for employment, production and purchasing power, and the President's economic program for attaining these objectives. Economic Report of the President is written by the Chairman of the Council of Economic Advisors. It summarizes the nation's economic progress using text and extensive data appendices. The Report is transmitted to Congress no later than ten days after the submission of the Budget of the United States Government. Continue to brochure.
Reprinted: Buffalo; William S. Hein & Co., Inc.; 2006-

Electoral Count of 1877

Proceedings of the Electoral Commission and of the Two Houses of Congress in Joint Meeting Relative to the Count of Electoral Votes Cast December 6, 1876, for the Presidential Term Commencing March 4, 1877

The Electoral Commission was created by Congress to resolve the disputed United States presidential election of 1876. The election was contested by the Democrats and the Republican alike. At issue were 20 electoral votes from the states of Florida, Louisiana, Oregon and South Carolina, with the resolution of the dispute determining the outcome of the presidential election of 1876. Facing a constitutional crisis the likes of which the nation had never seen, Congress passed a law forming the Electoral Commission to settle the results of the election. Continue to brochure.

Reprinted: Buffalo; William S. Hein & Co., Inc.; 2007

To Order From Hein, contact marketing@wshein.com

Posted On: October 31, 2008

ABA Weekly Newsletter October 31, 2008

Top Ten Stories:

Careers
Looking for Simpler Life, Lawyer Burns Harvard Law Diploma
Oct 28, 2008, 03:11 pm CDT

Law Firms
Thelen Leaders Seek Vote to Dissolve, Hope to Close By Dec. 1
Oct 28, 2008, 03:08 pm CDT

Law Firms
Chadbourne & Parke Freezes Hiring of Laterals, Nonlawyers
Oct 29, 2008, 08:55 am CDT

Layoffs
When the Boss Turns Quiet: Warning Signs of a Layoff
Oct 27, 2008, 10:48 am CDT

Law Firms
Law Firm Consultant Issues 'Grimmest Ever' Forecast
Oct 27, 2008, 02:46 pm CDT

Careers
Blog Comments Can Tank Job Prospects
Oct 29, 2008, 07:22 am CDT

Law Firms
Landlords Fear Law Firm Layoffs
Oct 28, 2008, 08:23 am CDT

Appellate Practice
Posner Targets Lawyer's Remark about Wives and Clothes Dryers (Take Our Poll)
Oct 30, 2008, 09:43 am CDT

Attorney Fees
Law Firms Advised to Try Discounted and Alternative Fees
Oct 28, 2008, 08:43 am CDT

Law Schools
Harvard to Waive 3rd Year Tuition for Students Pursuing Public Interest Careers
Oct 28, 2008, 11:38 am CDT

Posted On: October 30, 2008

New York Appellate Division Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 30, 2008:

1. People v. Serrano, 4389, 3698/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8168; 2008 N.Y. App. Div. LEXIS 7992, October 28, 2008, Decided, October 28, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (A. Kirke Bartley, ...

2. People v. Hamilton, 4419, 204/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8187; 2008 N.Y. App. Div. LEXIS 8011, October 28, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Robert H. Straus, ...

3. People v. Negron, 4408, 5681/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8182; 2008 N.Y. App. Div. LEXIS 8016, October 28, 2008, Decided, October 28, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Eduardo Padro, J.), ...

Posted On: October 27, 2008

Publication Announcements: Electronic Hein Cites Issue 33-08

Electronic publlications from William S. Hein & Company:

HeinOnline's U.S. Federal Agency Library

The U.S. Federal Agency Library is a complete collection of the official case law of some of the United States' most important government institutions. This case law, also known as decision law, is the body of reported judicial opinions that are published by each agency and thereby become precedent and the basis for future decisions. This Library contains titles from various government agencies, including the FCC, NLRB, FTC, ICC, IRCB and many more. Continue to brochure.

A Guide to State Legislation, Legislative History, and Administrative Materials
7th Edition

By: William H. Manz

Since the last edition, Guide to State Legislative and Administrative Materials, 2002 Edition, the explosion of electronically available information has radically altered the legal publishing world. This Seventh Edition of title #61 in the AALL Publication Series brings together the major print and electronic sources of administrative and legislative information, including bills, codes, regulations, attorney general opinions, executive orders, and administrative orders and decisions. This work is an excellent starting point in identifying the best web sites to further one's research. Continue to brochure.

List Price: $85.00

Published: Buffalo; William S. Hein & Co., Inc.; 2008
AALL Publication Series No. 61

A Higher Law

Readings on the Influence of Christian Thought in Anglo-American Law, 2nd Edition
By: Jeffrey A. Brauch

The common law formed the legal system that, for more than 800 years, defined and governed most legal rights and duties of citizens in England and later in the United States.This book tells the story of the development and evolution of the common law in our society. This second edition is designed to further the quest to look beyond legal rules and institutions to the legal philosophies that shaped them. While this work is an excellent text for any common law course, it is also provocative reading for lawyers, researchers, librarians, or students interested in the development and evolution of the common law. Continue to brochure.

List Price: $55.00
Published: Buffalo; William S. Hein & Co., Inc.; 2008

Bilateral Free Trade Agreements

By: William H. Manz

This eleven-volume compilation details the bilateral free trade agreements made between the United States and Israel, the West Bank and Gaza, Jordan, Singapore, Chile and many others. It contains the final acts, the congressional debates, reports, hearings, and related materials for these agreements. The collection enhances the NAFTA legislative history published by Hein in 1994, and provides researchers with a one-stop resource to learn more about the evolution of free trade agreements between the United States and other countries across the world. < u>Continue to brochure.

List Price: $1,295.00
Published: Buffalo; William S. Hein & Co., Inc.; 2007-2008

Digital Evidence in the Courtroom:

A Guide for Law Enforcement and Prosecutors

National Institute of Justice

Digital Evidence in the Courtroom, available for the first time in print format, helps to navigate the complex process of presenting digital evidence in a court of law. Now essential to modern life, computers have also become increasingly important to criminals who steal information, commit fraud and stalk victims online. Even if a crime was not committed online, law enforcement may discover critical evidence from an offender's digital media. For this evidence to be admissible in court, however, police must demonstrate the proper collection and handling. This title has never before been available in print format! This title is the 27th installment in Hein's Electronic Documents Reprint Series. Continue to brochure.

List Price: $55.00
Originally Published: Washington, D.C.; Department of Justice; 2007
Reprinted: Buffalo; William S. Hein & Co., Inc.; 2007


____________________________________________


For more information contact William S. Hein at marketing@wshein.com,
or call at 1-800-828-7571.

Posted On: October 27, 2008

Findlaw Summaries: Constitutional Law October 20-24, 2008

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

U.S. 6th Circuit Court of Appeals, October 24, 2008
Jelovsek v. Bredesen, No. 07-5443, 07-5524
In a case involving whether certain Tennessee laws governing the wine industry violate the dormant commerce clause of the Constitution, a judgment upholding the laws is affirmed in part, and vacated in part where: 1) upholding a Tennessee law banning the direct shipment of alcoholic beverages to consumers, including wine, was proper; but 2) Tennessee's Grape and Wine Law is discriminatory on its face; and 3) a remand was required in order to fashion an adequate remedy and to allow in-state wineries an opportunity to intervene.

U.S. 9th Circuit Court of Appeals, October 20, 2008
Porter v. Osborn, No. 07-35974
In the case of a roadside killing of a man by an Alaska State Trooper, denial of summary judgment for the state trooper on grounds of qualified immunity is reversed and remanded for reconsideration where to "shock the conscience" by actions stripping an officer of qualified immunity, the officer must act with a purpose to harm unrelated to law enforcement, rather than act with only deliberate indifference.

U.S. 9th Circuit Court of Appeals, October 20, 2008
US v. Schales, No. 07-10288
A child pornography case is remanded to the district court with order to vacate either the conviction for receiving child pornography in violations of 18 U.S.C. section 2252(a)(2), or the conviction for possessing child pornography in violation of 18 U.S.C. section 2252(a)(4)(B), due to violation of the Double Jeopardy Clause where: 1) possession of child pornography is a lesser included offense within receipt of child pornography; and 2) convictions on the two counts were based on the same conduct.

U.S. 9th Circuit Court of Appeals, October 24, 2008
Balam-Chuc v. Mukasey, No. 06-72887
In an immigration case, petition for relief from a removal order is denied where: 1) all aliens present in the U.S. on the date of enactment of the Immigration and Nationality Act (INA) had a deadline of April 30, 2001 to apply for adjustment of status under section 245(i) of the INA, which allows procedural benefits to spouses and minor children of lawful permanent residents; 2) INA section 245(i) is a statute of repose, thus not subject to equitable tolling for a claim of ineffective assistance of counsel; and 3) failure by petitioner's counsel to file petitioner's application on time did not implicate the Fifth Amendment because it did not affect the fundamental fairness of any ongoing hearing.

U.S. 10th Circuit Court of Appeals, October 21, 2008
Weigel v. Broad, No. 05-8094, 05-8102
In an action against defendants-Wyoming highway patrol officers and their supervisor claiming failure to train and excessive force under 42 U.S.C. section 1983 and state negligence law, summary judgment for defendants on the section 1983 claims is reversed where defendants were not entitled to qualified immunity as: 1) there was evidence that for three minutes troopers subjected decedent to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death, constituting unreasonable use of force under the Fourth Amendment; and 2) the law they violated was clearly established at the time of the incident.

U.S. 11th Circuit Court of Appeals, October 21, 2008
Nguyen v. US, No. 0712874
In a claim for false arrest, false imprisonment and malicious prosecution, dismissal is reversed where: 1) under the Federal Tort Claims Act, Congress waived sovereign immunity as to specified claims, including false imprisonment, false arrest, and malicious prosecution arising out of acts or omissions, including discretionary function ones, of federal investigative or law enforcement officers; and 2) the district court should not have granted the government's motion to dismiss on sovereign immunity grounds.

Supreme Court of Florida, October 23, 2008
Murray v. Mariner Health, No. SC07-244
In a workers' compensation case, a constitutional challenge to the statute governing awards of attorney fees in such cases is decided on non-constitutional grounds, fee award is quashed and case remanded where: 1) under the plain language of the relevant statute, a claimant entitled to recover fees is entitled to recover a "reasonable attorney's fee," a term not defined by the statute; and 2) the court's prior decision in Lee Eng'g and Constr. Co. v. Fellows, 209 So. 2d 454, 458 (Fla. 1968) was therefore the controlling law on determination of such fees.

California Appellate Districts, October 20, 2008
Widders v. Furchtenicht, No. B196583
In an election matter concerning two ballot initiatives submitted by defendant relating to chain stores and affordable housing, grant of defendant's demurrer is reversed, defendant's anti-strategic lawsuit against public participation (SLAPP) motion is denied, and the trial court is directed to enter judgment in favor of plaintiff-city attorney where: 1) the action was timely filed; and 2) the action did not qualify as a SLAPP suit because plaintiff demonstrated that he was entitled to judgment in his favor as a matter of law.

California Appellate Districts, October 21, 2008
Defend Bayview Hunters Point Comm. v. City & County of San Francisco, No. A119061
Denial of plaintiff's petition for writ of mandate and complaint for injunctive and declaratory relief are affirmed where: 1) plaintiff's petition to force a citywide referendum on a local ordinance did not comply either technically or substantially with Elections Code section 9238; 2) section 9238 as construed by the trial court does not burden free speech; and 3) plaintiff failed to affirmatively show that a clerk committed error by providing plaintiff with a copy of the ordinance and certifying it as "a full, true and correct copy of the original on file".


Posted On: October 27, 2008

Findlaw Summaries: Criminal Law and Procedure October 20-24, 2008

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

U.S. 1st Circuit Court of Appeals, October 22, 2008
US v. Boskic, No. 071188
Conviction of Bosnian citizen-defendant for two counts of making false statements in his applications for refugee status and permanent residency in the U.S. is affirmed over claims of error that: 1) the district court should have granted defendant's motion to suppress statements made during an interview with government agents because those statements were secured in violation of his Fifth and Sixth Amendment rights; and 2) the court should have granted his motion for judgment of acquittal because the evidence was insufficient to support a finding of falsity in his two statements.

U.S. 1st Circuit Court of Appeals, October 22, 2008
US v. Anthony, No. 071670
Conviction and sentence for evading federal income tax are affirmed over claims of error that: 1) the district court's willful blindness instruction was erroneous; and 2) the district court abused its discretion when it refused to admit into evidence legal materials on which defendant claimed to have relied in forming his good-faith belief that he did not have a duty to pay taxes.

U.S. 1st Circuit Court of Appeals, October 24, 2008
US v. Grullon, No. 071982
Conviction for conspiring to distribute cocaine is affirmed over claims of error that: 1) defendant's motion for judgment of acquittal should have been granted because the evidence against him was insufficient; 2) a drug sale was not probative of the charged conspiracy and should not have been allowed in evidence; and 3) the district judge should have declared a mistrial because certain "extraneous" material, i.e., a joke printed from a website making fun of the legal profession, was found in the jury room after a verdict was returned.

U.S. 2nd Circuit Court of Appeals, October 20, 2008
US v. Gomez, No. 050236, 051113
Conviction for conspiracy to import ecstasy, importing ecstasy, conspiracy to distribute and possess with intent to distribute ecstasy, and possession with intent to distribute ecstasy is reversed and remanded where the evidence was insufficient to demonstrate the specific intent element of each of the offenses.

U.S. 2nd Circuit Court of Appeals, October 22, 2008
US v. Kapelioujnvy, No. 073353
Conviction for conspiracy to sell stolen property is reversed where: 1) the government failed to prove that the defendant believed that the stolen property was worth at least five thousand dollars; and 2) the government failed to prove the defendant was involved in a conspiracy involving goods that moved in interstate commerce.

U.S. 2nd Circuit Court of Appeals, October 23, 2008
US v. Oberoi, No. 044545
Conviction for mail fraud and health care fraud is affirmed over claims of error that defendant was denied a speedy trial in violation of the Speedy Trial Act on the grounds that: 1) the pre-indictment delay exceeded 30 days; and 2) the pretrial delay exceeded 70 days.

U.S. 5th Circuit Court of Appeals, October 21, 2008
US v. Gomez-Gomez, No. 05-41461
Sentence for illegally reentering the United States is affirmed by the court sitting en banc, where a prior sex offense committed using constructive, i.e. nonphysical, force qualified as a "forcible sex offense" for sentence-enhancement purposes.

U.S. 6th Circuit Court of Appeals, October 21, 2008
Franklin v. Bradshaw, No. 07-3497
Dismissal of a petition for writ of habeas corpus challenging convictions for murder and felonious assault, with firearm specifications, is affirmed where the district court correctly found that a state court's rejection of a claim that petitioner's post-arrest silence was improperly used against him at trial was not an unreasonable application of Supreme Court precedent. ..

U.S. 6th Circuit Court of Appeals, October 21, 2008
US v. Pruitt, No. 06-6002
Given the particular characteristics of North Carolina sentencing law, in light of recent United States Supreme Court precedent, in determining whether to apply the career offender provision of the United States Sentencing Guidelines, a federal court must take into account the defendant's state criminal history (or lack thereof) at the time of his predicate North Carolina convictions.

U.S. 6th Circuit Court of Appeals, October 24, 2008
US v. Kuehne, No. 06-3668
A conviction for drug- and firearm-related offenses is affirmed where: 1) a claim that venue was improper in the Southern District of Ohio was without merit; 2) defendant's bartering of firearms for drugs constituted "use" of a firearm within the meaning of 18 U.S.C. section 924(c)(1); 3) although the district court erred in its instructions to the jury regarding the burden of proof necessary to support a conviction for section 924(c), the error was harmless; 4) no constructive amendment or variance of the indictment occurred; 5) defendant did not demonstrate error regarding a prosecutor's conduct during his trial; 6) a pro se motion for judgment of acquittal or a new trial was properly denied; 7) a claim regarding inaccuracies or alterations of the transcripts of proceedings was meritless; 8) police did not engage in improper interrogation tactics by jointly interviewing two co-conspirators; 9) the district court properly made findings regarding motion to suppress; 10) sent! encing facts were properly submitted to the jury; 11) the indictment was sufficient, as was the evidence supporting various counts; 12) a Brady claim was meritless; and 13) there was no plain error as to jury instructions regarding "Conspiracy" and "aiding and abetting".

U.S. 8th Circuit Court of Appeals, October 20, 2008
US v. Pierson, No. 08-1335
A conviction and sentence for attempted production of child pornography and attempting to induce a child to engage in criminal sexual activities is affirmed where: 1) sufficient evidence supported the convictions; 2) there was no abuse of discretion in permitting the government to cross examine defendant at trial about his prior 20-year old conviction for indecent contact with a child; and 3) defendant's prior conviction was a qualifying predicate offense for the purpose of applying both a U.S.S.G. section 4B1.5 enhancement for repeat and dangerous offenders, and the mandatory minimum sentence required under 18 U.S.C. section 2251(e) for offenders with a qualifying prior conviction under state law.

U.S. 8th Circuit Court of Appeals, October 22, 2008
US v. Foxx, No. 07-3928, 08-1009, 08-1010
In a case involving a conspiracy to distribute large quantities of marijuana in and around Springfield, Missouri, defendants' convictions and sentences are affirmed where: 1) the evidence implicating one defendant in the conspiracy to distribute 1,000 or more kilograms of marijuana was overwhelming; and 2) although two other defendants played lesser roles in the conspiracy, the evidence clearly implicated them and provided a basis for a reasonable jury to conclude they could have reasonably foreseen that the conspiracy involved 1,000 kilograms or more of marijuana.

U.S. 8th Circuit Court of Appeals, October 24, 2008
Ausler v. US, No. 07-2709
Denial of a motion for post-conviction relief under 28 U.S.C. section 2255 from a conviction and sentence for possession with intent to distribute controlled substances is affirmed over claims of error regarding whether: 1) defendant was denied conflict-free counsel; and 2) Booker applies retroactively to cases on collateral review.

U.S. 9th Circuit Court of Appeals, October 20, 2008
US v. Schales, No. 07-10288
A child pornography case is remanded to the district court with order to vacate either the conviction for receiving child pornography in violations of 18 U.S.C. section 2252(a)(2), or the conviction for possessing child pornography in violation of 18 U.S.C. section 2252(a)(4)(B), due to violation of the Double Jeopardy Clause where: 1) possession of child pornography is a lesser included offense within receipt of child pornography; and 2) convictions on the two counts were based on the same conduct.

U.S. 9th Circuit Court of Appeals, October 20, 2008
Estrada-Espinoza v. Mukasey, No. 05-75850
In an immigration case challenging removal based on statutory rape convictions, petition for review is granted where: 1) federally defined "sexual abuse of a minor" within the meaning of 8 U.S.C. section 1101(a)(43) requires a knowing sexual act with someone between 12 and 16 years old and at least 4 years younger than the perpetrator; 2) the California statutes under which petitioner was convicted set the age of consent at 18 and minimum age difference at 3 years; 3) there were no allegations of abuse or violence; and 4) petitioner and the victim cohabitated with permission of both sets of parents and raised a child together.

U.S. 9th Circuit Court of Appeals, October 21, 2008
US v. McTiernan, No. 07-50430
In a case involving an alleged former client of notorius Hollywood private investigator Anthony Pellicano, conviction for making a false statement to an FBI agent is vacated and the case remanded where: 1) a defendant can show fair and just reason to allow withdrawal of a guilty plea by showing that proper legal advice on the suppressibility of evidence could plausibly have motivated a reasonable person not to have pled guilty; 2) defendant's plea was elicited by a recording previously made by Pellicano which contradicted defendant's statements to the FBI; and 3) recordings made with the intent to violate state or federal law are suppressible under 18 U.S.C. section 2511.

U.S. 9th Circuit Court of Appeals, October 23, 2008
US v. Seljan, No. 05-50236
In a case regarding sexual exploitation of children in the Philippines, convictions are affirmed on counts of travel with intent to engage in illicit sexual conduct, use of an interstate facility to entice a minor to engage in sex acts, and production of child pornography where: 1) the search of defendant's outgoing packages at a FedEx regional sort facility, from which all subsequent evidence derived, was the functional equivalent of a border search; 2) the search was also an authorized customs inspection under 31 U.S.C. section 5317(b); and 3) the search of defendant's personal correspondence was not unduly intrusive in scope or manner.

U.S. 9th Circuit Court of Appeals, October 23, 2008
US v. Fiander, No. 07-30251
In a contraband cigarette trafficking case, dismissal of a conviction for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO) is reversed where: 1) under the Yakama Treaty of 1855 which secured Yakama tribe members the right to travel the public highways, Yakama members cannot be convicted for violating RICO or Washington state law forbidding traffic in contraband cigarettes; but 2) the government can state a claim against a Yakama member for violating RICO by alleging agreement to facilitate the underlying offense.

U.S. 9th Circuit Court of Appeals, October 23, 2008
Styers v. Schriro, No. 07-99003
In a death row inmate's habeas corpus case, the district court's denial of relief is vacated and reversed in part where the Arizona Supreme Court failed to properly review all aggravating and mitigating evidence required after finding one of the aggravating factors used in sentencing to be invalid.

U.S. 10th Circuit Court of Appeals, October 21, 2008
Weigel v. Broad, No. 05-8094, 05-8102
In an action against defendants-Wyoming highway patrol officers and their supervisor claiming failure to train and excessive force under 42 U.S.C. section 1983 and state negligence law, summary judgment for defendants on the section 1983 claims is reversed where defendants were not entitled to qualified immunity as: 1) there was evidence that for three minutes troopers subjected decedent to force that they knew was unnecessary to restrain him and that a reasonable officer would have known presented a significant danger of asphyxiation and death, constituting unreasonable use of force under the Fourth Amendment; and 2) the law they violated was clearly established at the time of the incident.

U.S. 10th Circuit Court of Appeals, October 21, 2008
US v. Martinez-Barragan, No. 06-2333
A sentence for illegal reentry by a deported alien after having been previously convicted of an aggravated felony is affirmed where: 1) claims that the sentence was procedurally unreasonable failed; and 2) under the circumstances, defendant failed to demonstrate that his criminal history and family circumstances, when viewed in light of 18 U.S.C. section 3553(a), rendered a bottom of the Guidelines sentence an abuse of discretion.

U.S. 11th Circuit Court of Appeals, October 23, 2008
US v. Thomas, No. 0811492
Sentence enhancement for possession with intent to distribute crack cocaine and being a felon in possession of a firearm is affirmed where: 1) the reduction of base offense levels in relation to crack cocaine quantities under U.S.S.G. section 2D1.1(c) had no effect on defendant's sentencing range; and 2) as in the case of US v. Moore, defendant would have been subject to exactly the same guidelines range if the provisions of Amendment 706 had been in effect at the time he was originally sentenced because his sentence was based on the guidelines range applicable to armed career criminals under U.S.S.G. section 4B1.4.

New York Court of Appeals, October 21, 2008
People v. Lucas, No. 148
Conviction for first-degree murder is affirmed over a claim that the indictment was legally insufficient because it "double-counted" the death of the victim by asserting that defendant had killed him in the course of committing a first-degree kidnapping

New York Court of Appeals, October 23, 2008
People v. Jenkins, No. 161
In a prosecution for criminal sale of a controlled substance, NY Supreme Court was not compelled to grant defendant specific performance of a plea agreement providing for dismissal of an indictment upon his alleged successful completion of a drug treatment program.

California Appellate Districts, October 20, 2008
Sabatasso v. Superior Court of Orange County, No. G039906
Petition for writ of mandate to recover release allowance provided for by Penal Code section 2713.1 is granted where state code which would prohibit payment of the $200 allowance owed to a prisoner upon release is void to the extent it bans payment to parolees held or detained by local law enforcement for initiation of proceedings as a sexually violent predator under the Welfare and Institutions Code section 6600 (SVPA).

California Appellate Districts, October 21, 2008
In re N.D. , No. F053397
Juvenile petitioner's commitment to Division of Juvenile Facilities (DJF) for a maximum period of confinement for burglary and battery is affirmed where: 1) amendments to Welfare and Institutions Code sections 731 and 733 did not apply to a disposition that occurred before September 1, 2007; 2) the common-law rule requiring application of statutes that mitigate punishment to all cases not yet final on their effective dates was inapplicable; 3) the amendments did not mitigate punishment but only limited the places in which a ward could be defined; and 4) since the juvenile court committed minor-defendant to the DJF before September 1, 2007, he was not entitled to reversal of the commitment.

California Appellate Districts, October 21, 2008
People v. Bartsch, No. A120182
Denial of defendant's petition for restoration to sanity pursuant to Penal Code section 102562.2 is affirmed where: 1) the court did not abuse its discretion when it denied the petition; and 2) defendant failed to establish his eligibility for transfer to outpatient status.

California Appellate Districts, October 21, 2008
D'Amato v. Superior Court of Orange County, No. G037836
Petition for writ of prohibition barring district attorney from prosecuting criminal action against petitioner is granted where: 1) a substantial portion of the indictment's allegations challenged acts petitioner undertook in support of legislative activity; 2) because the legislature did not intend to criminalize legislative acts taken by public officials who hold no personal financial interest in a contract made in violation of section 1090, petitioner's legislative activity may not serve as a basis for the indictment; and 3) the remainder of the indictment's allegations lacked the requisite supporting evidence.

California Appellate Districts, October 22, 2008
El Dorado County Dept. of Child Support Svcs. v. Nutt, No. C056534
Judgment finding that incarcerated defendant owed a duty of child support is affirmed where: 1) it is not impossible that defendant will have the ability or opportunity in the future to generate an income with which he may provide some support or health insurance for his child; and 2) the court did not err in finding that he had an obligation to do so, even if that obligation could not presently be satisfied.

California Appellate Districts, October 22, 2008
People v. Williams , No. F052218
Conviction for murder involving the personal use of a deadly weapon and committed by an active participant in a criminal street gang to further the activities of that gang, as well as active participation in a criminal street gang, is affirmed in part and reversed in part where: 1) something more than a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang; and 2) only the Small Town Peckerwoods, and not some larger Peckerwood group, may be considered in assessing appellant's claims of evidentiary insufficiency.

California Appellate Districts, October 23, 2008
People v. Caesar, No. D050387
Conviction and sentence for one count of second degree murder, one count of premeditated attempted murder, and three counts of unpremeditated attempted murder is affirmed in part and reversed in part where: 1) defendant's conviction on count 2 must be reduced to attempted unpremeditated murder; and 2) the trial court did not err in imposing consecutive sentences on co-defendants. .

California Appellate Districts, October 23, 2008
People v. Slattery, No. C055413
Sentence of time in state prison and payment of restitution to the hospital that treated defendant's mother, for elder abuse, is stricken where the hospital is not a direct victim of the offense, as required by section 1202.4(k)(2).

Posted On: October 27, 2008

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 27, 2008:

1. People v. Delgado, 4361, 2279/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8004; 2008 N.Y. App. Div. LEXIS 7829, October 23, 2008, Decided, October 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), ...

2. People v. Erving, 4346, 1163/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7993; 2008 N.Y. App. Div. LEXIS 7839, October 23, 2008, Decided, October 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Charles H. Solomon, ...

3. People v. Black, 4353, 3466/06, 4904/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7997; 2008 N.Y. App. Div. LEXIS 7835, October 23, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Charles H. Solomon, ...

4. People v. Robinson, 4364, 2356/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8007; 2008 N.Y. App. Div. LEXIS 7832, October 23, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

5. People v. Bland, 4366, 1884/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8008; 2008 N.Y. App. Div. LEXIS 7836, October 23, 2008, Decided, October 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Renee A. White, ...

6. People v. Sanchez, 3675, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8027; 2008 N.Y. App. Div. LEXIS 7857, October 23, 2008, Decided, October 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
... appeals from a judgment of the Supreme Court, New York County (Roger S. Hayes, ...
... claims. Accordingly, the judgment of the Supreme Court, New York County (Roger S. Hayes, ...
... Squib inserted here: Judgment, Supreme Court, New York County (Roger S. Hayes, ...

7. People v. Bonilla, 4375, 495/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8014; 2008 N.Y. App. Div. LEXIS 7856, October 23, 2008, Decided, October 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, ...

8. People v. Mears, 4384, 4854/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8021; 2008 N.Y. App. Div. LEXIS 7858, October 23, 2008, Decided, October 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Micki A. Scherer, ...

9. People v. Maldonado, 4370, 395/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8012; 2008 N.Y. App. Div. LEXIS 7860, October 23, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Michael J. Obus, ...

10. People v. Llop, 4076, 5935/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6929; 54 A.D.3d 606; 864 N.Y.S.2d 378; 2008 N.Y. App. Div. LEXIS 6782, September 18, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Micki A. Scherer, ...


Posted On: October 24, 2008

City Council of the City of New York Votes to Extend Term Limits

The city Council of the City of New York voted 29 to 22 on October 23 to extend term limits which would permit Mayor Michael Blomberg to seek re-election next year. The Charter Amendment voted upon by the Council will also permit members of the City Council and other city elected officials to serve for three or four year terms.

Here is the text of the amendment to the city charter as approved by the Council on October 23, 2008:

Proposed Int. No. 845-A

By Council Members Felder, Comrie, Koppell, Recchia Jr. and Stewart (by request of the Mayor)

A Local Law to amend the New York city charter, in relation to term limits for elected officials.

Be it enacted by the Council as follows:

Section 1. Sections 1137 and 1138 of the charter of the city of New York, as added by a vote of the electors of such city at the general election held on November 2, 1993, are amended to read as follows:

§1137. Public Policy. It is hereby declared to be the public policy of the city of New York to limit [to not more than eight consecutive years] the time elected officials can serve as mayor, public advocate, comptroller, borough president and council member so that elected representatives are "citizen representatives" who are responsive to the needs of the people and are not career politicians. It is further declared that this policy is most appropriately served by limiting the time such officials can serve to not more than three full consecutive terms.

§1138. Term Limits. Notwithstanding any provision to the contrary contained in this charter, no person shall be eligible to be elected to or serve in the office of mayor, public advocate, comptroller, borough president or council member if that person had previously held such office for [two] three or more full consecutive terms [(including in the case of council member at least one four-year term)], unless one full term or more has elapsed since that person last held such office; provided, however, that in calculating the number of consecutive terms a person has served, only terms commencing on or after January 1, 1994 shall be counted.

§2. If any section, subdivision, sentence, clause, phrase or other portion of this local law is, for any reason, declared unconstitutional or invalid, in whole or in part, by any court of competent jurisdiction, such portion shall be deemed severable and such constitutionality or invalidity shall not affect the validity of the remaining portions of this local law, which remaining portions shall remain in full force and effect.

§3. This local law shall take effect immediately and shall apply to elections held on or after the date of its enactment, provided that this local law shall be deemed repealed upon the effective date of a lawful and valid proposal to amend the charter to set term limits at two, rather than three, full consecutive terms, as such limits were in force and effect prior to the enactment of this local law, where such proposal has been submitted for the approval of the qualified electors of the city and approved by a majority of such electors voting thereon.

Posted On: October 24, 2008

American Libraries Direct October 22, 2008

The e-newsletter of the American Library Association (ALA):

Selected Higllights:

Kareem PSA generated $900,000 in library publicity
Throughout Library Card Sign-up Month in September, NBA legend Kareem Abdul-Jabbar could be seen and heard speaking out about the value of owning a library card. As honorary chair, Abdul-Jabbar donated his time and image to the creation of print and radio public service announcements. Print PSAs (right) were placed by ALA in such national publications as Entertainment Weekly, O, The Oprah Magazine, and USA Today, generating $900,000 in donated advertising space on behalf of libraries....

Library use rises as economy falls
Haverhill (Mass.) Public Library Assistant Director Susan Katzenstein said the library is usually “an incredibly busy place.” But nowadays, “our usage is through the roof.” The Haverhill library is not alone. Across the region, local public libraries are reporting a surge in use, a trend officials tie directly to the economic hardship many are facing....
Boston Globe, Oct. 16

Margolis hired as New York state librarian
The embattled former head of the Boston Public Library has been hired as the New York state librarian and assistant commissioner of education in Albany. The state board of regents confirmed the appointment of Bernard A. Margolis at an October 21 meeting. Margolis spent 11 years as president of the Boston library system before he was ousted last year by Mayor Thomas M. Menino....
Boston Globe, Oct. 21

ACRL’s Informed Learning
ACRL has released a new publication titled Informed Learning. Written by noted Australian learning theorist Christine S. Bruce, it provides a unique perspective on helping students become successful learners in fluid and fast-moving information environments. Bruce has created a powerful and extensive examination of how information literacy and disciplinary learning can coexist....

New Presidential Records Act signed
President George W. Bush signed the Presidential Historical Records Preservation Act of 2008 (S. 3477) into law October 13. The act establishes a matching grant program for the preservation of historical records of former presidents whose archives are not maintained in federal depositories. The legislation culminates years of effort by Virginia legislators and the Woodrow Wilson Presidential Library and Museum in Staunton, Virginia....
Staunton (Va.) News Leader, Oct. 21; White House, Oct. 13

Telecom immunity law challenged in court
The Electronic Frontier Foundation has filed a constitutional challenge of a law that gave legal immunity to telecommunications companies cooperating with the Bush administration’s domestic wiretapping program. The brief filed October 16 in U.S. District Court in San Francisco argues that the FISA Amendments Act denies telecom customers their rights without due process of law, since they’re subjected to warrantless surveillance....
Information Week, Oct. 17

New media player allows spoken-word search
EveryZing, a media indexing company, is launching its own media player that lets people search for spoken words within videos. The new video player, called MetaPlayer, uses technology the company already has in its ezSearch and ezSEO products. On sites that support it (the first announced is the Dallas Cowboys site), users will be able to type in a query in the video player and see where the term entered comes up; they can then jump to that spot....
Webware, Oct. 22

How to limit a search by date
Phil Bradley writes: “One of the problems with searching for material in a specific date range is that it’s hard for a search engine to know exactly what is required. For example, if you add the date limit ‘last 3 months,’ that doesn’t necessarily mean ‘new’ pages that have been created in the last three months—if a search engine finds a page written 5 years ago that they’ve only just included in their database, that could be included as a new page. However, there are a few places you might go.”...
Phil Bradley’s Weblog, Oct. 19

Click here to see this entire issue in html format.
_________________________________________
Thanks to Philip Y. Blue Senior Law Librarian at the New York Supreme Court Criminal Term Library for contributing this information.

Posted On: October 24, 2008

The ECAR Study of Undergraduate Students and Information Technology

The EDUCAUSE Center for Applied Research (ECAR) Study of Undergraduate Students and Information Technology, 2008 is available at http://net.educause.edu/ir/library/pdf/ERS0808/RS/ERS0808w.pdf.

Although this study was done with undergraduate students, it provides useful information relevant to all students in all fields at both the undergraduate and graduate levels. Of particular interest to lawyers and law librarians might be Chapter 4: Ownership of, Use of, and Skill with IT; Chapter 5 IT and the Academic Experience; Chapter 6 Social Networking Sites, and the Bibliography included at the end of the study.

Posted On: October 24, 2008

Invistigative Stops Law Pop Quiz

From: Quinlan Law Enforcement, October 23, 2008.

Question: Commander Davis received a tip that Conlenzo-Huffman would be in Calvert, Texas that day driving a blue Buick Park Avenue with a missing hubcap, and that Conlenzo-Huffman would be in possession of a substantial amount of cocaine. That tip was provided by a confidential informant who had provided reliable tips to Commander Davis in the past. Because of the tip, Commander Davis went to Calvert and asked for and received the assistance of Calvert Police Chief Cheatham. Chief Cheatham spotted Conlenzo-Huffman as a passenger in a vehicle matching the one described by the informant. Although Conlenzo-Huffman owned the Buick, an acquaintance named Bowen was driving it. A third individual was in the back seat. Observing that neither Conlenzo-Huffman nor his passenger were wearing seatbelts, Chief Cheatham stopped the vehicle and asked the occupants to exit. Commander Davis then arrived on the scene. Although Conlenzo-Huffman complied with the direction to exit the car, Conlenzo-Huffman refused to step away from the vehicle, and insisted on remaining in the area between the front seat and the open passenger door. He was also verbally abusive to the officers. Additionally, Conlenzo-Huffman kept reaching into the vehicle for several items. Finally, both Conlenzo-Huffman and Bowen refused to give consent to search the vehicle. Bowen had a valid driver's license, and Conlenzo-Huffman provided proof of automobile insurance. A computer check did not reveal any outstanding warrants as to any of the vehicle's occupants. Chief Cheatham issued Bowen and Conlenzo-Huffman citations for failing to wear seatbelts. He next told Conlenzo-Huffman he was free to leave, but Conlenzo-Huffman chose to remain. Because the officers could not obtain consent to search the vehicle, they sought a narcotics dog to conduct a sniff test. The narcotics dog belonging to the Calvert Police Department was not certified and was being retrained, so the officers sought the use of a dog belonging to the City of Bryan, 35 miles away. That dog eventually arrived on the scene. Upon examining the vehicle, the dog signaled the presence of narcotics. All together, the stop lasted one hour and 20 minutes. A subsequent search of the vehicle yielded approximately 82.7 grams of cocaine. Was the long detention lawful?

Answer: First, Conlenzo-Huffman admitted that much of the delay in the stop was attributable to Conlenzo-Huffman, who refused to comply with officers' orders to step away from the vehicle and was verbally abusive. Consequently, he conceded that the officers could not be faulted for the entire length of the investigation. Second, Commander Davis explained at trial that while he asked the Calvert Police Department for permission to use their narcotics dog, he was notified that the Calvert dog was not certified and that an officer with the Calvert Police was trying to retrain the dog and was not comfortable with that particular dog. Consequently, the officers sought the assistance of the Bryan Police Department, 35 miles away, which eventually lent the officers its narcotics dog. These facts suggested that the officers obtained a capable narcotics dog as quickly as possible. Thus, Conlenzo-Huffman had no evidence that the officers unreasonably delayed their investigation. After they issued Conlenzo-Huffman the citation, the officers told him he was free to leave. Thus, the stop subsequent to that point amounted to a seizure of his vehicle rather than of Conlenzo-Huffman himself. This suggested that the officers sought to use the least intrusive means in dispelling or confirming their suspicions.

Citation: U.S. v. Conlenzo-Huffman, 2008 WL 4218806 (5th Cir. 2008)

Posted On: October 24, 2008

Findlaw Case Summaries: U.S. Court of Appeals Second Circuit

BANKING LAW, CIVIL PROCEDURE, SECURITIES LAW
Morrison v. Nat'l Australia Bank, Ltd., No. 070583
In a securities matter involving defendant-foreign bank, dismissal of claims is affirmed where court did not have subject matter jurisdiction based on the fact that: 1) the fraudulent statements at issue emanated from defendant's corporate headquarters in Australia; 2) the complete lack of any effect on America or Americans; and 3) the lengthy chain of causation between defendant's acquired lending company's actions and the statements that reached investors.

CRIMINAL LAW & PROCEDURE
US v. Oberoi, No. 044545
Conviction for mail fraud and health care fraud is affirmed over claims of error that defendant was denied a speedy trial in violation of the Speedy Trial Act on the grounds that: 1) the pre-indictment delay exceeded 30 days; and 2) the pretrial delay exceeded 70 days.

CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Kapelioujnvy, No. 073353
Conviction for conspiracy to sell stolen property is reversed where: 1) the government failed to prove that the defendant believed that the stolen property was worth at least five thousand dollars; and 2) the government failed to prove the defendant was involved in a conspiracy involving goods that moved in interstate commerce. .

GOVERNMENT LAW, LABOR & EMPLOYMENT LAW
Havey v. Homebound Mortgage, Inc., No. 060978
Grant of summary judgment in favor of defendants on plaintiff's claims for violation of the overtime provisions of the Fair Labor Standards Act (FLSA) is affirmed where: 1) prospective adjustments to an employee's salary based on the quality of work which do not reduce the "predetermined amount" of salary do not violate the "salary-basis test" of the FLSA so long as the salary scheme was not designed to circumvent the requirements of the FLSA; and 2) prospective adjustments to an employee's salary based on projected quantity of work performed do not necessarily violate that test.

ANTITRUST & TRADE REGULATION, BANKING LAW, CIVIL PROCEDURE, CLASS ACTIONS, DISPUTE RESOLUTION & ARBITRATION
Ross v. Am. Express Co., No. 064598
In an appeal from the district court's holding that defendants-American Express may avail themselves of the arbitration clauses in the cardholder agreements and compel the plaintiffs to arbitrate their claims related to a multi-district class action antitrust litigation against defendants, plaintiffs' appeal is granted and defendants' appeal is denied where the district court erred in holding that the cardholder agreements provided a sufficient contractual basis for sending this case to arbitration.

CONTRACTS, CORPORATION & ENTERPRISE LAW, GOVERNMENT LAW, INDIAN LAW
Catskill Dev., LLC v. Park Place Entm't Corp., No. 065860
In a claim that defendant tortiously interfered with plaintiff's contractual and business relations with the non-party Mohawk Indian Tribe when it entered into an exclusive agreement with the Tribe, dismissal of plaintiff's tortious interference claim and grant of summary judgment in favor defendant are affirmed where: 1) the contract with the Tribe were void and otherwise unenforceable at the time of defendant's alleged interference; and 2) plaintiff failed to establish a triable issue of fact that defendant used wrongful means to interfere

Posted On: October 24, 2008

Findlaw Case Summaries: New York State Court of Appeals October 23, 2008

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

CIVIL PROCEDURE, CIVIL RIGHTS, LABOR & EMPLOYMENT LAW
Crawford v. Liz Claiborne, Inc., No. 145
"In a suit under the Human Rights Law alleging that plaintiff's employer discriminated against him based on sexual orientation, reversal of summary judgment for defendants is reversed and remanded where defendants' summary judgment motion was timely under the then-applicable local rule."

CIVIL PROCEDURE, FAMILY LAW, JUDGMENT ENFORCEMENT
Farkas v. Farkas, No. 144
:In an action pursuant to a divorce, reversal of judgments in favor of wife regarding a debt secured by the couple's shares in their co-op apartment, on the basis that wife's submission of a proposed judgment was untimely, is reversed where the prior proposed judgments were not subject to a 60-day time limit on submission"

CONTRACTS, PROPERTY LAW & REAL ESTATE
Episcopal Diocese of Rochester v. Harnish, No. 152
In a suit over the disposition of property claimed by a church which separated from its diocese, summary judgment for plaintiffs is affirmed where defendant-parish church held its real and personal property in trust for plaintiff-diocese, such that upon the parish's separation from the diocese its property reverted back to the diocese.

CRIMINAL LAW & PROCEDURE, SENTENCING
People v. Jenkins, No. 161
In a prosecution for criminal sale of a controlled substance, NY Supreme Court was not compelled to grant defendant specific performance of a plea agreement providing for dismissal of an indictment upon his alleged successful completion of a drug treatment program. .

ETHICS & DISCIPLINARY CODE, ETHICS & PROFESSIONAL RESPONSIBILITY, PER CURIAM
In the Matter of LaBombard, No. 151
Determination of the Commission on Judicial Conduct finding that petitioner had engaged in serious judicial misconduct and recommending his removal from office is affirmed where petitioner knowingly and intentionally violated the rules governing judicial recusal and presided over cases involving members of his own family.

IMMIGRATION LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE
Katz Park Ave. Corp. v. Jagger, No. 141
In an ejectment action seeking to remove defendant-celebrity from her rent-stabilized apartment, summary judgment for landlord is affirmed where, in the absence of unusual facts, a foreign national who is in the United States on a tourist visa cannot meet the "primary residence" requirement of New York City's rent regulations.

AGRICULTURE, CONSTRUCTION, CONTRACTS, INJURY AND TORT LAW
Brothers v. New York State Elec. & Gas Corp., No. 146
In an action by a forestry worker injured on the job, alleging negligence by his employer for which defendant, which contracted with the employer to perform the work, should be held vicariously liable, summary judgment for defendant is affirmed where: 1) a contractual obligation does not necessarily constitute a nondelegable duty in tort; and 2) on the facts of this case, liability could not be extended to defendant.

CONSTRUCTION, CONTRACTS, INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW
Brooks v. Judlau Contracting, Inc., No. 147
In an action brought by an ironworker for injuries sustained on the job while employed by defendant's subcontractor, dismissal of plaintiff's third-party claim against the subcontractor is reversed where section 5-322.1 of the General Obligations Law allows a general contractor, who has been found to be partially at fault, to enforce an indemnification provision against its subcontractor for that portion of damages attributable to the negligence of the subcontractor, so long as the indemnification provision does not purport to indemnify the general contractor for its own negligence.

CONSTRUCTION, INJURY AND TORT LAW, LABOR & EMPLOYMENT LAW
Stringer v. Musacchia, No. 158
Plaintiff who was injured while building a shed for an acquaintance while on a hunting trip was not an "employee" covered by Labor Law section 240(1), as he was providing casual, uncompensated assistance to another person with a repair or construction project in an informal arrangement that did not give rise to mutual duties or obligations between them and bore none of the traditional hallmarks of an employment relationship. .

CONTRACTS, EVIDENCE, FAMILY LAW
Graev v. Graev, No. 139
In a suit over the termination of spousal-support payments after husband claimed that wife had triggered a "termination condition" for such payments by cohabiting with another man, judgment in favor of wife is reversed and case remanded where: 1) the word "cohabitation" was ambiguous as used in the separation agreement; 2) neither the dictionary nor case law supplied an authoritative or plain meaning; 3) "cohabitation" does not require changed economic circumstances; and 4) remand was necessary to determine the intent of the parties based on extrinsic evidence.

CONTRACTS, INJURY AND TORT LAW, INSURANCE LAW
Sorbara Constr. Corp. v. AIU Ins. Co., No. 157
In a suit seeking to require an insurer to defend or indemnify an insured, judgment for defendant-insurer is affirmed where: 1) when a policy of liability insurance requires that notice of an occurrence be given "as soon as practicable," such notice must be provided within a reasonable period of time, and failure to give such notice relieves the insurer of its obligations under the contract, regardless of whether the insurer was prejudiced by the delay; and 2) notice provided under the worker's compensation policy at the time of the incident did not constitute notice under the liability policy even though both policies were written by the same carrier.

CRIMINAL LAW & PROCEDURE
People v. Lucas, No. 148
Conviction for first-degree murder is affirmed over a claim that the indictment was legally insufficient because it "double-counted" the death of the victim by asserting that defendant had killed him in the course of committing a first-degree kidnapping.

Posted On: October 24, 2008

New York Appellate Division Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 23-24, 2008:

1. People v. Peralta, 4143, 514/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7170; 54 A.D.3d 653; 2008 N.Y. App. Div. LEXIS 7008, September 30, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Robert H. Straus, ...

2. People v. Cannie, 4152, 3021/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7174; 54 A.D.3d 654; 2008 N.Y. App. Div. LEXIS 7014, September 30, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bruce Allen, J.), ...

3. People v. Cordero, 4151, 8131/97, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7173; 54 A.D.3d 654; 2008 N.Y. App. Div. LEXIS 7017, September 30, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Arlene Silverman, J.), ...

4. People v. Mackie, 4135, 3638/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7168; 54 A.D.3d 651; 2008 N.Y. App. Div. LEXIS 7015, September 30, 2008, Decided, September 30, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

5. People v. Kerins, 4121, 6352/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7069; 54 A.D.3d 633; 2008 N.Y. App. Div. LEXIS 6910, September 25, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Richard Carruthers, J.), ...

6. People v. Ryerson, 4124, 1056/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7072; 54 A.D.3d 635; 2008 N.Y. App. Div. LEXIS 6905, September 25, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (James A. Yates, ...

7. People v. Ortiz, 4117, 6331/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7066; 54 A.D.3d 631; 863 N.Y.S.2d 683; 2008 N.Y. App. Div. LEXIS 6912, September 25, 2008, Decided, September 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Michael Ambrecht, J.), ...

8. People v. Harrell, 4114, 5591/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7063; 54 A.D.3d 629; 863 N.Y.S.2d 686; 2008 N.Y. App. Div. LEXIS 6913, September 25, 2008, Decided, September 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Eduardo Padro, J.), ...

9. People v. Sanchez, 4130, 949/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7078; 54 A.D.3d 638; 864 N.Y.S.2d 17; 2008 N.Y. App. Div. LEXIS 6922, September 25, 2008, Decided, September 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Richard D. Carruthers, ...

10. People v. Yoy, 4094, 4891/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7028; 54 A.D.3d 614; 863 N.Y.S.2d 597; 2008 N.Y. App. Div. LEXIS 6883, September 23, 2008, Decided, September 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, ...

11. People v. Colon, 4110, 2506/02, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7039; 54 A.D.3d 621; 864 N.Y.S.2d 14; 2008 N.Y. App. Div. LEXIS 6881, September 23, 2008, Decided, September 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Marcy L. Kahn, ...

12. People v. Andrew, 4105, 2482/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7035; 54 A.D.3d 618; 863 N.Y.S.2d 676; 2008 N.Y. App. Div. LEXIS 6887, September 23, 2008, Decided, September 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Arlene R. Silverman, ...

13. People v. Alvarez, 4088, 2463/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6937; 54 A.D.3d 612; 2008 N.Y. App. Div. LEXIS 6769, September 18, 2008, Decided, September 18, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edward J. McLaughlin, ...

14. People v. Metellus, 4070, 4404/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6923; 54 A.D.3d 601; 2008 N.Y. App. Div. LEXIS 6780, September 18, 2008, Decided, September 18, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bruce Allen, J.), ...

15. People v. Hill, 4080, 4081, 3857/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6931; 54 A.D.3d 607; 863 N.Y.S.2d 436; 2008 N.Y. App. Div. LEXIS 6766, September 18, 2008, Decided, September 18, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Renee A. White, ...

16. People v. Green, 4072, 4756/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6925; 54 A.D.3d 603; 863 N.Y.S.2d 437; 2008 N.Y. App. Div. LEXIS 6770, September 18, 2008, Decided, September 18, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Renee A. White, ...

17. People v. Baum, 4075, 3468/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6928; 54 A.D.3d 605; 863 N.Y.S.2d 672; 2008 N.Y. App. Div. LEXIS 6777, September 18, 2008, Decided, September 18, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Arlene R. Silverman, ...

18. People v. Rodriguez, 4066, 4067, 585/01, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6891; 54 A.D.3d 600; 2008 N.Y. App. Div. LEXIS 6719, September 16, 2008, Decided, September 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Leslie Crocker Snyder, ...

19. People v. Monfiston, 4061, 6317/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6886; 54 A.D.3d 597; 2008 N.Y. App. Div. LEXIS 6729, September 16, 2008, Decided, September 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

20. People v. Lark, 4059, 1265/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6884; 54 A.D.3d 596; 2008 N.Y. App. Div. LEXIS 6733, September 16, 2008, Decided, September 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edwin Torres, J.), ...

21. People v. Sanchez, 4063, 1531/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6888; 54 A.D.3d 598; 863 N.Y.S.2d 386; 2008 N.Y. App. Div. LEXIS 6720, September 16, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (A. Kirke Bartley, ...

22. People v. Lebron, 4052, 8164/02, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6878; 54 A.D.3d 591; 863 N.Y.S.2d 386; 2008 N.Y. App. Div. LEXIS 6726, September 16, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Daniel FitzGerald, J.), ...

23. People v. Duncan, 4055, 3621/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6880; 54 A.D.3d 593; 863 N.Y.S.2d 386; 2008 N.Y. App. Div. LEXIS 6727, September 16, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Michael Obus, J.), ...

24. People v. Anderson, 4068, 3904/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6892; 54 A.D.3d 601; 863 N.Y.S.2d 386; 2008 N.Y. App. Div. LEXIS 6725, September 16, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Rena K. Uviller, ...

25. People v. Mateo, 4062, 4062A, 8274/00, 2414/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6887; 54 A.D.3d 598; 863 N.Y.S.2d 368; 2008 N.Y. App. Div. LEXIS 6730, September 16, 2008, Decided, September 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Arlene D. Goldberg, ...

26. People v. Grant, 4049, 5101/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6876; 54 A.D.3d 589; 863 N.Y.S.2d 432; 2008 N.Y. App. Div. LEXIS 6735, September 16, 2008, Decided, September 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Rena K. Uviller, ...

27. People v. Davis, 3851, 1350/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6738; 54 A.D.3d 575; 2008 N.Y. App. Div. LEXIS 7608, September 9, 2008, Decided, September 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Eduardo Padro, J.), ...

28. People v. McMath, 3828, 3829, 3465/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6688; 54 A.D.3d 566; 863 N.Y.S.2d 650; 2008 N.Y. App. Div. LEXIS 6547, September 2, 2008, Decided, September 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Arlene R. Silverman, ...

29. People v. Warfield, 4325, 914/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7965; 2008 N.Y. App. Div. LEXIS 7802, October 21, 2008, Decided, October 21, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Charles H. Solomon, ...

30. People v. Cabral, 4306, 5023/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7952; 2008 N.Y. App. Div. LEXIS 7803, October 21, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Michael J. Obus, ...

31. People v. Dantata, 4319, 2279/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7961; 2008 N.Y. App. Div. LEXIS 7793, October 21, 2008, Decided, October 21, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edward J. McLaughlin, ...

:


Posted On: October 24, 2008

Highlights from ABA Journal Weekly Newsletter October 24, 2008

Top Ten Stories of the Week:

Layoffs
Jenner & Block Asks About 10 Partners to Leave
Oct 21, 2008, 10:52 am CDT

Law Schools
Law School Free for UC Irvine’s Entering 2009 Class
Oct 22, 2008, 09:34 am CDT

Judiciary
Qwest CEO Judge Nottingham Resigns Amid Misconduct Probe
Oct 21, 2008, 04:23 pm CDT

Law Practice Management
Law Firms Learn the Hard Way that Layoff News is Likely to Leak
Oct 23, 2008, 09:05 am CDT

Law Firms
Big-Firm Lawyers Posed for Hottie Calendar
Oct 23, 2008, 06:44 am CDT

Layoffs
Laid-Off Employees File Class Action Against Heller Ehrman
Oct 21, 2008, 05:58 am CDT

Careers
New Law Grads Urged to Have Backup Plans
Oct 20, 2008, 01:21 pm CDT

Layoffs
Dechert Chair Calls Layoff Rumors ‘Bull,’ Says Firings Performance-Related
Oct 22, 2008, 06:03 am CDT

Law Firms
Legal Market Predictions: Double the Extreme
Oct 22, 2008, 12:23 pm CDT

Criminal Justice
NY Mortgage Lawyer Killed in Parking Lot Shooting
Oct 22, 2008, 09:13 am CDT

Posted On: October 23, 2008

New ABA Books on Experts, E-Discovery, E-Evidence


Attacking Adverse Experts

Stephen D. Easton

"The is a step-by-step guide to investigating, evaluating, and attacking the adverse expert in civil cases. It outlines tactics you can use to gather information about the adverse expert, both in the discovery process and on your own to: take an effective expert deposition; evaluate the adverse expert's analysis of the key issues; move to exclude his testimony; cross-examine him effectively when he testifies at trial; handle voir dire, opening statement, closing argument, and even to successfully handle appeals regarding experts. Includes CD-ROM of time-saving checklists and citations to dozens of critical rules, statutes, cases, and other law."

Product Code: 5310378
Regular Price: $165.00
LT Section Member Price: $135.00 ©2008
6 x 9 - paper
792 pages

E-Discovery: Twenty Questions and Answers

John M. Barkett

"E-discovery has shaken up litigation across America. Judges are dealing with e-discovery issues unheard of ten years ago. The case law is developing in a number of areas and conflicting decisions are not unusual. This concise book examines recurring issues in the area of e-discovery in an accessible question and answer format. It offers insight into the thorny issues and references specific cases to make your research quicker and easier. It provides much-needed clarity on the issues that you see again and again in e-discovery."

Product Code: 5310377 Regular Price: $69.95
LT Section Member Price: $54.95 ©2008
6 x 9 - Paper
133 pages

Electronic Evidence: Law and Practice, Second Edition

Paul R. Rice
"This new edition explores the range of problems encountered with electronic communications from discovery to trial, and offers practical solutions to both existing and potential problems. It examines (1) the new discovery rules and how they relate to past practices, and (2) fundamental evidentiary issues governing the admissibility of electronic evidence. Particular emphasis is given to the unique problems evolving around the way in which parties are asserting the attorney-client privilege and judges are applying it to e-mail communications."

Product Code: 5310375
Regular Price: $125.00
LT SectionMember Price: $95.00 ©2008
6 x 9 - paper
510 pages





Posted On: October 21, 2008

LEH Newsletter: Copyright, New Media Law and E-Comm News

FROM THE OFFICES OF LESLEY ELLEN HARRIS
Copyright, New Media Law & E-Commerce News

NOTE: THIS CONTENT IS BEING REPRODUCED FOR NON-COMMERCIAL PURPOSES ONLY.
__________________________________________________________________
__________________________________________________________________

Vol. 12, No. 6, October 19, 2008
ISSN 1489-954X

Contents:

1. Studies, Legislation and Conventions:
WIPO Study on Copyright Limitations and Exceptions for Libraries
Creative Commons Launches Study of “Noncommercial” Use
Bill C-61 Dies With Canadian Election Call

2. Legal Cases:
Harry Potter Lexicon Breached Copyright
Peer-to-Peer Magazine Site Settles Dispute

3. Of Interest:
Hollywood Demands Royalties From Irish Playschools
U.S. Music Groups Agree on Royalties for Online Streaming
Copyright Law is a Balancing Act
OCLC Pilots Copyright Registry

4. Seminars and Publications:
Canadian Copyright Law Course
Vote on Copyright Education
Certificate in Copyright Management
Co pyright Questions and Answers
The Copyright & New Media Law Newsletter
__________________________________________________________________
__________________________________________________________________

Copyright, New Media & E-Commerce News is distributed for free by the
office of Lesley Ellen Harris. Information contained herein should not be
relied upon or considered as legal advice. Copyright 2008 Lesley Ellen
Harris. This e-letter may be forwarded, downloaded or reproduced in whole
in any print or electronic format for non-commercial purposes provided that
you cc: lehletter@copyrightlaws.com.

This e-letter, from 1996 to the present, is archived with Library &
Archives Canada at: http://epe.lac-bac.gc.ca/100/201/300/copyright/.
__________________________________________________________________
__________________________________________________________________

1. STUDIES, LEGISLATION AND CONVENTIONS:

WIPO STUDY ON COPYRIGHT LIMITATIONS AND EXCEPTIONS FOR LIBRARIES – The
World Intellectual Property Office (“WIPO”) has released a study on
copyright limitations and exceptions for libraries which has been prepared
by Kenneth Crews. The study discusses issues from the foundation of library
exceptions to their prevalence, scope and structure, and the nature of the
various exceptions in the copyright legislations of all WIPO member
countries. A copy of the study is at:
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=109192.

CREATIVE COMMONS LAUNCHES STUDY OF “NONCOMMERCIAL” USE – Creative Commons has launched a study to explore the differences between commercial and
noncommercial uses of content. Creative Commons licenses allow creators to
give the public advance permission to use the creators’ work. Works
distributed under the “noncommercial” license term may be used by anyone
for any purpose that is not “primarily intended for or directed toward
commercial advantage or private monetary compensation.” Creative Commons
explained that developments in technology, social practices, and business
models are changing the definition of non-commercial use.

BILL C-61 DIES WITH CANADIAN ELECTION CALL – The October 14, 2008 election
in Canada has killed Bill C-61 (see LEH-Letter Volume 12, No. 5). If the
new government wants to enact similar legislation, it will have to
re-introduce the Bill under a different number.
__________________________________________________________________
________________________ ______ ____________________________________

2. LEGAL CASES:

HARRY POTTER LEXICON BREACHED COPYRIGHT – In September 2008, a U.S. federal
court judge held that a proposed book called The Harry Potter Lexicon
contained no substantially new material and it breached copyright in the
J.K. Rowling’s Harry Potter series. Warner Brothers, who sued Steven Jan
Vander Ark and the proposed publisher of the book, received $6,750 US in
damages.

PEER-TO-PEER MAGAZINE SITE SETTLES DISPUTE – Mygazines, com, a peer-to-peer
site which allows users to upload and share magazines, settled a dispute
with a group of consumer and business-to-business magazines in September.
Mygazines.com has agreed to remove material protected by copyright from its
site, and to put in place a system whereby Mygazines.com is notified
whenever material protected by copyright is uploaded.

__________________________________________________________________
___________ ______ _________________________________________________

3. OF INTEREST:

HOLLYWOOD DEMANDS ROYALTIES FROM IRISH PLAYSCHOOLS – The MPLC, a licensing
company representing companies such as Walt Disney and Twentieth Century
Fox, has written to Irish playschools demanding that each child pay a fee
of more than 3 euros a year to watch DVDs.

U.S. MUSIC GROUPS AGREE ON ROYALTIES FOR ONLINE STREAMING – Five music
industry groups, representing record labels, music publishers, songwriters,
and music Web sites, have reached agreement on how royalties should be paid
for streaming music online. The plan has been submitted to the Copyright
Royalty Judges for approval. If approved, sites such as Napster will pay
royalties of about 10.5% of revenue, matching rates already paid by
download services such as iTunes.

COPYRIGHT LAW IS A BALANCING ACT – Copyright law is about balancing the
rights of users and consumers of copyright-protected mater ials.& nbsp; See a
short article on balance in copyright law at:
https://www.barex.com/barex/appmanager/bx/on?_nfpb=true&articleId=ar2001015

OCLC PILOTS COPYRIGHT REGISTRY – On July 1, 2008, OCLC launched a pilot
service, the Copyright Evidence Registry, which hopes to become a library
community-compiled union catalogue of copyright information. Users can
search for a book, see what others have said about its copyright status,
and add what they know. The beta version is at:
http://www.worldcat.org/copyrightevidence.
http://www.worldcat.org/copyrightevidence
__________________________________________________________________
__________________________________________________________________

4. SEMINARS AND PUBLICATIONS:

CANADIAN COPYRIGHT LAW COURSE – A 5 week version of the 16 e-lesson course
on Canadian Copyright Law will begin on November 3, 2008. Information and
registration at: www.acteva.com/go/copyright.

VOTE ON COPYRIGHT EDUCATION – Help out by voting on which copyright and
licensing courses you would like to see offered in 2009. Cast your vote
at:
www.copyrightlawscom.blogspot.com.

CERTIFICATE IN COPYRIGHT MANAGEMENT – This program, consisting of 5 online
courses and 2 in-person courses, created in partnership between Lesley
Ellen Harris and SLA Click University, begins again in January 2009.
Participants have two years to complete the 7 courses required for the
certificate, or may take any course à la carte. The first course,
Introduction to Copyright Management Principles & Issues, starts January 6,
2009. See: www.clickuniversity.org .

COPYRIGHT QUESTIONS AND ANSWERS – Lesley Ellen Harris has just launched a
new blog designed to answer copyright questions. It includes questions from
issues of The Copyright & New Media Law Newsletter, and gives readers the
opportunity to post questions of their own. See
http://www.copyrightanswers.blogspot.com/.

THE COPYRIGHT & NEW MEDIA LAW NEWSLETTER – This unique publication deals
with copyright law, licensing and related matters for a diverse audience of
copyright professionals including librarians, archivists, curators,
educators, lawyers, publishers, and digital content creators. This is a
print newsletter, begun in 1997. It is published four times per year, with
contributors and authors from around the world. For more information, see:
http://copyrightlaws.com. To subscribe, visit: http://www.acteva.com.

__________________________________________________________________
__________________________________________________________________

This newsletter is prepared by Copyright Lawyer Lesley Ellen Harris.
Lesley is the author of the books Canadian Copyright Law (McGraw-Hill),
Digital Property: Currency of the 21st Century (McGraw-Hill), and Licensing
Digital Content (ALA Editions). Lesley edits the print newsletter, The
Copyright & New Media Law Newsletter. Lesley may be reached at:
http://copyrightlaws.com.
__________________________________________________________________
__________________________________________________________________


This LEH-Letter issue was prepared with the help of Beth Davies.

Posted On: October 21, 2008

AALL: State Court and County Law Libraries Special Interest Section Newsletter, Fall 2008

The fall issue of the State Court and County Law Libraries (SCCLL) Newsletter has been published at:

http://www.aallnet.org/sis/sccll/pdfs/news/2008fall.pdf

There is an inoperable hyperlink on page 12. The link to the article “Law Libraries Keep FOL in $titches” is: http://www.friends-library.org/about/footnotes2008/footnotes-0808.pdf

Posted On: October 21, 2008

Findlaw Case Summaries: New York State Court of Appeals

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

CIVIL PROCEDURE, ETHICS & PROFESSIONAL RESPONSIBILITY, PROFESSIONAL MALPRACTICE
Tydings v. Greenfield, Stein & Senior, LLP, No. 154
In a legal malpractice action by the former trustee of a grantor trust against the law firm that represented her in a proceeding to compel an accounting, reversal of dismissal on collateral estoppel grounds is affirmed where: 1) collateral estoppel does not prevent relitigation of a ruling that was an alternative basis for a trial-level decision, where an appellate court affirmed the decision without addressing that ruling; and 2) when a trustee resigns, the statute of limitations governing an action to compel her to account runs from the date the trusteeship is turned over to a successor trustee.

CIVIL PROCEDURE, GOVERNMENT LAW, PER CURIAM
In the Matter of City of Elmira v. Doe, No. 142
In a civil proceeding to vacate a sealing order, appellate court order is affirmed where some of the sealed records were not official records subject to a CPL 160.50 seal.


CONTRACTS, HEALTH LAW, LABOR & EMPLOYMENT LAW
Goldman v. White Plains Ctr. for Nursing Care, LLC, No. 140
In a breach of contract action arising out of the termination of plaintiff's employment, summary judgment for defendants is affirmed where the expiration of a two-year employment contract did not give rise to successive one-year implied contracts when the employee continued working for the employer without a new agreement, but rather converted plaintiff into an at-will employee.

CORP. GOVERNANCE, CRIMINAL LAW & PROCEDURE, EVIDENCE, MANUFACTURING, SENTENCING, WHITE COLLAR CRIME
People v. Kozlowski, No. 137, 138
In the prosecution of two former Tyco International executives for crimes associated with corporate wrongdoing, defendants' convictions and sentences are affirmed where: 1) the admission of an attorney's testimony concerning certain facts related to a corporate internal investigation did not improperly convey to the jury an opinion regarding defendants' guilt; 2) certain material sought by defendants via a subpoena duces tecum was protected by the qualified privilege covering trial preparation materials; and 3) even if there was an Apprendi violation in the imposition of fines upon defendants, any error was harmless.

CRIMINAL LAW & PROCEDURE, PER CURIAM, SENTENCING
People v. Smith, No. 149
In a sex-offender registration proceeding following defendant's guilty plea to a rape charge, order classifying defendant as a level two sex offender is reversed where the lower court did not adequately set forth the findings of fact and conclusions of law on which it based its decision to assess defendant 20 points under the risk factor pertaining to defendant's relationship with the victim.

Posted On: October 21, 2008

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals October 16-20, 2008

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CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. DeFilippo, No. 071618
Conviction and sentence for conspiring to racketeer, illegal gambling, and conspiring to collect credit through extortionate means is affirmed where: 1) though lower court erred in admitting certain testimony by a witness and his sentencing challenges, the error was harmless; 2) the district court appropriately considered murder to be relevant conduct under the Guidelines; 3) there was no support for defendant's assertion that incarceration created a rebuttable presumption of withdrawal from a conspiracy; and 4) the district court did not abuse its discretion by resolving the dispute over attorney's fees without a hearing.

CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Luna, No. 073018
Judgment of acquittal notwithstanding the verdict for a cocaine-distribution conspiracy is reversed and remanded where there was sufficient evidence to support the jury's determination that the defendant not only had a buyer-seller relationship with the head of the conspiracy but also knowingly and intentionally joined in and participated in the conspiracy. .

CIVIL PROCEDURE, CONSTITUTIONAL LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE
Diaz v. Paterson , No. 052685, 063942, 063992
In a putative class action challenging the constitutionality of state civil procedure law, which allows a plaintiff who brings a lawsuit claiming interest in real property to file a lis pendens with respect to the property, is affirmed where the state's lis pendens law as applied to plaintiffs did not offend the Constitution as construed by Connecticut v. Doehr, 501 U.S. 1 (1991).

IMMIGRATION LAW
Alibasic v. Mukasey, No. 064046
Petition to review decision of Board of Immigration Appeals (BIA) vacating grant of Albanian Muslim-petitioner's application for asylum from violent disintegration of the former Yugoslavia, is granted where the BIA did not demonstrate that its decision was supported by "substantial evidence in the record," especially because it did not even address the evidence of continued persecution of Serbian minorities identified by the Immigration Judge in supporting materials submitted by petitioner and in the 2004 Country Report itself.

BANKRUPTCY LAW, COMMERCIAL LAW, TRANSPORTATION
In Re: Peaslee, No. 073962
In appeal from judgment reversing a Bankruptcy Court court finding that negative equity on a trade-vehicle is included in the purchase money security acompanying a new car's purchase and is therefore protected from cramdown by the Hanging Paragraph of Section 1325 of the Bankruptcy code, the court here certifies the question of whether negative equity is included in a purchase money security interest under state's interpretation of the Uniform Commercial code (UCC).

CIVIL PROCEDURE, SECURITIES LAW
ATSI Communications, Inc. v. The Shaar Fund, Ltd., No. 081815
In a securities-fraud action, motion to vacate judgment for monetary sanctions against plaintiff's counsel is denied where the general rule governing a court of appeals' vacatur of a district court's judgment after the case has been settled applied, where the settlement is, by its terms, conditioned upon vacatur and no special circumstances obtain.

CRIMINAL LAW & PROCEDURE, EVIDENCE
US v. Gomez, No. 050236, 051113
Conviction for conspiracy to import ecstasy, importing ecstasy, conspiracy to distribute and possess with intent to distribute ecstasy, and possession with intent to distribute ecstasy is reversed and remanded where the evidence was insufficient to demonstrate the specific intent element of each of the offenses.


Posted On: October 20, 2008

The Colin Powell Endorsement of Obama


"The Colin Powell endorsement was one of the best addresses I've heard
in years. It's worth listening to the entire speech--about 5 minutes.
use the link below to hear it"
http://thecaucus.blogs.nytimes.com/2008/10/19/powell-endorses-obama/?hp

Posted On: October 20, 2008

Findlaw Case Summaries: Constitutional Law October 13-17, 2008

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U.S. 1st Circuit Court of Appeals, October 15, 2008
Batterman v. Leahy, No. 072653
In a claim for attorneys fees, the district court's administrative closure of the case on grounds of Pullman abstention is vacated and remanded where: 1) the Pullman abstention did not apply in this case; 2) there was no right under state law, property or otherwise, for attorney-plaintiff to be paid more than the cap on billable hours and so no federal constitutional issue is presented by defendants' refusal to do so; 3) there was no ambiguity with respect to state law that required clarification; and 4) no single abstention doctrine, or probably any combination of them, would justify abstention for all of the counts.

U.S. 2nd Circuit Court of Appeals, October 17, 2008
Diaz v. Paterson , No. 052685, 063942, 063992
In a putative class action challenging the constitutionality of state civil procedure law, which allows a plaintiff who brings a lawsuit claiming interest in real property to file a lis pendens with respect to the property, is affirmed where the state's lis pendens law as applied to plaintiffs did not offend the Constitution as construed by Connecticut v. Doehr, 501 U.S. 1 (1991).

U.S. 7th Circuit Court of Appeals, October 14, 2008
Laskowski v. Spellings, No. 05-2749
In an Establishment Clause suit attempting to enjoin a government grant to the University of Notre Dame, dismissal for mootness is affirmed on remand from the Supreme Court where: 1) the expiration of the grant mooted plaintiffs' claims for injunctive relief against the Secretary of Education; and 2) plaintiffs lacked standing as taxpayers to pursue a restitutionary remedy against the university.

U.S. 9th Circuit Court of Appeals, October 14, 2008
San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, No. 06-17001
In a First and Fourteenth Amendment challenge to campaign contribution limits for elected city positions, summary judgment for plaintiff is vacated and the case remanded with instruction to dismiss, as federal courts must abstain where: 1) defendant Election Commission's investigation into plaintiff's violation of campaign contribution regulations is an ongoing state proceeding; 2) the ongoing proceeding implicates an important state interest in regulating local elections; 3) plaintiff is not barred from making its constitutional arguments in the state proceeding; and 4) the federal suit would effectively enjoin the state proceeding because plaintiff seeks injunction against defendant enforcing its municipal statute.

U.S. 9th Circuit Court of Appeals, October 15, 2008
Posey v. Lake Pend Oreille Sch. Dist. No. 84, No. 07-35188
In a public employee First Amendment case, summary judgment for defendant is reversed where: 1) plaintiff has spoken on a matter of public concern; 2) the state lacks an adequate justification for treating the employee differently from any other member of the general public; and 3) there is a genuine and material dispute as to the scope and content of plaintiff's employment duties. .

California Appellate Districts, October 14, 2008
Woods v. Shewry, No. C056072
In a constitutional challenge to several domestic violence programs and programs for inmate mothers, denial of petition for writ of mandate is reversed where: 1) the gender-based classifications in the challenged statutes that provide programs for victims of domestic violence violated equal protection; 2) male victims of domestic violence are similarly situated to female victims for purposes of the statutory programs and no compelling state interest justified the gender classification; and 3) plaintiffs failed to show men are similarly situated to women for purposes of the prison programs for inmate mothers.

Posted On: October 20, 2008

Findlaw Case Summaries: Criminal Law and Procedure October 13-17, 2008

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U.S. Supreme Court, October 14, 2008
Moore v. U.S., No. 07-10689
Sentence for possession of cocaine base with intent to distribute is reversed and the case remanded where the district court's statements during sentencing showed that it did not think it had the discretion, which was later upheld by the Supreme Court in Kimbrough v. U.S., to reject the Guidelines' crack-to-powder cocaine sentencing ratio. .

U.S. 2nd Circuit Court of Appeals, October 14, 2008
In re Vincent Basciano, No. 082157
Writ of mandamus seeking judge's recusal based on government-furnished evidence suggesting that petitioner had plotted to have judge murdered, is denied where petitioner did not "clearly and indisputably" demonstrate that the district court abused its discretion. .

U.S. 2nd Circuit Court of Appeals, October 14, 2008
Brown v. Alexander, No. 071780
Following indictment against petitioner for criminal sale of a controlled substance in or near school grounds, denial of writ of habeas corpus is affirmed where: 1) the state courts reasonably determined that petitioner had not made out a prima facie case; and 2) petitioner's post-conviction detention was not unlawful. .

U.S. 2nd Circuit Court of Appeals, October 14, 2008
In re the County of Erie, No. 075702
Following an order requiring the production of ten e-mail communications allegedly protected by the attorney-client privilege in a case involving a Fourth Amendment claim for invasive strip search, petition for writ of mandamus directing district court to vacate the order is affirmed where: 1) a party must rely on privileged advice from his counsel to make his claim or defense; 2) the district court erred in its ruling that the qualified immunity defense asserted by petitioners placed the privileged communications between the county attorney's office and the sheriff's personnel at issue; and 3) there was no unfairness to the respondents because they were "in no way worse off" as a result of the disclosure that communications existed than they would be if they were unaware of them.

U.S. 2nd Circuit Court of Appeals, October 14, 2008
US v. Huezo, No. 070031
Grant of motion for acquittal notwithstanding the guilty verdict is reversed and remanded where the district court erred in concluding that, on the basis of the evidence presented, no rational juror could have found that defendant had the requisite knowledge and intent to support his convictions for money laundering and conspiracy to commit money laundering.

U.S. 2nd Circuit Court of Appeals, October 15, 2008
US v. Rivera, No. 064946
Conviction and sentence for five counts involving the sexual abuse of children are affirmed over claims of error that: 1) certain photos of one of the minor victims were not "lascivious" within meaning of child pornography laws; 2) the jury was misled by the district court's instructions; 3) the district court erred in denying his motion to sever the counts relating to one of the victims from the counts relating to the other victims; and 4) defendant's sentence violated the Eighth Amendment.

U.S. 2nd Circuit Court of Appeals, October 16, 2008
US v. Luna, No. 073018
Judgment of acquittal notwithstanding the verdict for a cocaine-distribution conspiracy is reversed and remanded where there was sufficient evidence to support the jury's determination that the defendant not only had a buyer-seller relationship with the head of the conspiracy but also knowingly and intentionally joined in and participated in the conspiracy.

U.S. 2nd Circuit Court of Appeals, October 16, 2008
US v. DeFilippo, No. 071618
Conviction and sentence for conspiring to racketeer, illegal gambling, and conspiring to collect credit through extortionate means is affirmed where: 1) though lower court erred in admitting certain testimony by a witness and his sentencing challenges, the error was harmless; 2) the district court appropriately considered murder to be relevant conduct under the Guidelines; 3) there was no support for defendant's assertion that incarceration created a rebuttable presumption of withdrawal from a conspiracy; and 4) the district court did not abuse its discretion by resolving the dispute over attorney's fees without a hearing.

U.S. 3rd Circuit Court of Appeals, October 16, 2008
US v. Goodson, No. 06-4895, 06-4896
A sentence for wire fraud which included a supervised-release condition requiring defendant to consent to a search of his place of business is affirmed where: 1) defendant's failure to address the applicability of his waiver, in a plea agreement, of his right to a direct appeal did not foreclose him from challenging the waiver's enforceability in his reply brief; but 2) the waiver in this case did encompass defendant's right to appeal the conditions of his supervised release, and defendant waived his appeal rights knowingly and voluntarily. .

U.S. 5th Circuit Court of Appeals, October 13, 2008
Taylor v. Cain, No. 07-30709
In a collateral proceeding in a murder case, grant of habeas relief is affirmed where: 1) petitioner adequately exhausted his claims in state court; 2) the admission of hearsay testimony at his trial was erroneous; and 3) the state court's holding that the error was harmless was contrary to, and an unreasonable application of, clearly established federal law.

U.S. 6th Circuit Court of Appeals, October 15, 2008
Thap v. Mukasey, No. 07-3752, 07-4168
Petition for review of a decision removing petitioner to Cambodia is denied where: 1) petitioner's robbery conviction constituted a crime of violence that supported findings that he was removable; 2) a statutory ground for removal must have a "substantially identical" counterpart in the statutory grounds for exclusion in order to qualify for INA section 212(c), and the factual basis of the underlying criminal activity is irrelevant; 3) thus, petitioner was not eligible for section 212(c) relief; and 4) the evidence in this case did not compel a conclusion that it was "more likely than not" that he would be detained, let alone tortured, upon removal to Cambodia.

U.S. 6th Circuit Court of Appeals, October 15, 2008
US v. Jordan, No. 07-5696
A conviction and sentence for mail fraud and aggravated identity theft is affirmed over claims that: 1) there was a Speedy Trial Act violation; 2) evidence was unlawfully seized from his vehicle incident to a warrantless arrest without probable cause; 3) the district court erred in refusing to appoint standby counsel to assist his pro se defense at trial; 4) the district court failed properly to exercise its discretion under Fed. R. Crim. P. 16 to grant adequate remedies for alleged discovery violations by the government; 5) the government failed to provide timely notice under Fed. R. Evid. 902(11) of its intent to offer certain records into evidence; 6) the evidence was insufficient to support a conviction; and 7) the district court erred in sentencing him on one count in finding the amount of intended loss from his actions to be around $811,000.

U.S. 6th Circuit Court of Appeals, October 15, 2008
Mendoza v. Berghuis, No. 07-1115
Denial of a petition for a writ of habeas corpus from a conviction for assault with intent to commit murder, malicious destruction of property, carrying a concealed weapon, and possession of a firearm during the commission of a felony is affirmed over a claim that shackles restraining defendant during trial (but invisible to the jury) violated his constitutional rights because the jury likely knew he was wearing them. .

U.S. 6th Circuit Court of Appeals, October 16, 2008
US v. Williams, No. 06-2018
A conviction for possession of a controlled substance with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime is affirmed where: 1) the district court correctly found that a search warrant established a nexus between defendant's suspected possession of the handguns and his residence sufficient to support the issuing judge's finding of probable cause; and 2) the district court correctly found that the warrant application included testimony and evidence sufficient to support the issuing judge's finding of probable cause.

U.S. 6th Circuit Court of Appeals, October 17, 2008
US v. Henry, No. 05-2084, 05-2282
In a case arising from a large-scale drug-trafficking operation that transported cocaine on musical-band tour buses from Los Angeles to Detroit and other cities, defendant's conviction for conspiracy to possess cocaine with the intent to distribute is affirmed but his 180-month sentence vacated where: 1) a claim that that he was denied a fair trial because of prosecutorial misconduct during closing argument is rejected; but 2) the below-Guidelines sentence required vacatur pursuant to the government's challenge to its reasonableness, as the sentence was not adequately explained.

U.S. 7th Circuit Court of Appeals, October 14, 2008
Arreola v. Godinez, No. 07-1700
In a putative class-action suit by an inmate challenging a jail's policy of denying crutches to injured inmates in certain areas of the jail, denial of certification of a class for injunctive relief is affirmed, and denial of certification of a class for damages is remanded where: 1) plaintiff had standing to sue; 2) plaintiff's second amended complaint was not time-barred; 3) the proposed class for injunctive relief did not meet the Fed. R. Civ. P. 23(b)(2) requirements for certification; and 4) remand was necessary for consideration of whether the proposed damages class met the Rule 23(b)(3) requirements.

U.S. 7th Circuit Court of Appeals, October 14, 2008
US v. Jackson, No. 07-1449, 07-1577
Convictions for mail fraud and conspiracy are affirmed over claims of error regarding: 1) the sufficiency of the evidence supporting the convictions; 2) due process; 3) ineffective assistance of counsel; 4) the admissibility of evidence concerning credit-card fraud; 5) the admission of the prior conviction of one defendant; and 6) the denial of a motion for a new trial on the basis of newly discovered evidence.

U.S. 7th Circuit Court of Appeals, October 15, 2008
Burr v. Pollard, No. 07-4031
In a first-degree murder case, denial of habeas relief with regard to sentencing is affirmed where: 1) the sentencing judge's error in considering portions of the presentence report that he had previously agreed to strike was harmless; and 2) there was no Fifth Amendment violation in the consideration of defendant's refusal to testify at sentencing.

U.S. 8th Circuit Court of Appeals, October 14, 2008
US v. Chahia, No. 073594
Conviction and life imprisonment-sentence for conspiracy to possess with intent to distribute substance containing a detectable amount of methamphetamine and intent to distribute a controlled substance is affirmed over claims of error that: 1) there was insufficient evidence to support the jury's verdict; 2) the district court abused its discretion in denying his motion for continuance; 3) the district court erred in allowing hearsay testimony; and 4) defendant's life sentence constituted unconstitutional cruel and unusual punishment.

U.S. 8th Circuit Court of Appeals, October 16, 2008
US v. Morelos, No. 07-3598
Defendant's drug conspiracy conviction and sentence is affirmed where: 1) the evidence was sufficient to support the conviction; 2) there was no error in the determination of the amount of drugs attributable to him; 3) a three-level enhancement he received for being a manager or supervisor in a conspiracy involving five or more persons was proper; and 4) the sentence was not unreasonable. .

U.S. 8th Circuit Court of Appeals, October 17, 2008
US v. Miner, No. 08-1796
In a case arising after defendant failed to appear to testify in a criminal trial pursuant to subpoena, her 12-month sentence for felony criminal contempt of a lawful court order is affirmed where, despite the fact that the parties recommended a sentence of drug treatment, a weekend in jail, and a $500 fine, the court did not abuse its discretion in rejecting the parties' plea agreement and imposing the within-Guidelines sentence.

U.S. 9th Circuit Court of Appeals, October 15, 2008
US v. Armstead, No. 06-30550
In a challenge to the sentence given in a bank fraud case, the sentence is vacated and case remanded for resentencing where the district court 1) miscalculated the number of victims under United States Sentencing Guidelines (U.S.S.G.) section 2B1.1(b)(2); and 2) erred by failing to apply U.S.S.G. section 5G1.3(b)(1) for time served.

U.S. 10th Circuit Court of Appeals, October 16, 2008
Boyle v. McKune, No. 06-3025
Denial of habeas relief from a conviction and 424-month sentence for aggravated criminal sodomy and sexual battery is affirmed where: 1) petitioner was not entitled to an evidentiary hearing on his claim of ineffective assistance of trial counsel; 2) his trial counsel was not constitutionally ineffective for failing to interview or call to the stand certain witnesses; and 3) his appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence on direct appeal.

U.S. 11th Circuit Court of Appeals, October 16, 2008
US v. Singleton, No. 0713329
Conviction for conspiracy to distribute and possess with intent to distribute a controlled substance is affirmed, and sentence is reversed where: 1) the district court did not clearly err in determining that both requirements for admitting statement of a co-conspirator were met as a matter of fact and thus, did not abuse its discretion in admitting the statement; 2) if there was any error in admitting evidence of flight and in the jury instruction, it was harmless in light of the abundance of evidence against defendant; 3) the cumulative error doctrine was unavailing; and 4) the district court clearly erred in calculating the quantity of crack cocaine present that yielded a base offense level of 36, and this error was not harmless.

Supreme Court of Florida, October 16, 2008
In re: Amendments to Fla. R. Crim. P., Fla. R. Juv. P., and Fla. Fam. L. R. P. - Report of the Task Force on Treatment-Based Drug Courts, No. SC06-434
Upon consideration of submissions by the Juvenile Court Rules Committee and the Task Force on Treatment-Based Drug Courts, the court declines to adopt a proposed amendment to Fla. R. Juv. Pro. 8.010.

Supreme Court of Florida, October 16, 2008
The Florida Bar v. De la Torre, No. SC07-1633
In an attorney discipline case, a referee's finding of guilt is approved, but the suspension recommendation is rejected as too lenient where: 1) the referee's findings of aggravating factors, with one exception, were supported by competent and substantial evidence; and 2) defendant's concealment from the state bar of his nolo contendere pleas to felonies was egregious misconduct warranting an eighteen-month suspension.

Supreme Court of Florida, October 16, 2008
In re: Standard Jury Instructions in Criminal Cases - Report No. 2008-05, No. SC08-744
Upon recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court authorizes the publication and use of new and amended instructions.

Supreme Court of Florida, October 16, 2008
In re: Amendments to Fla. Rules for Certification & Regulation of Court Interpreters, No. SC08-1671
Upon recommendation of the Court Interpreter Certification Board, the court adopts amendments to the rules. ..

Supreme Court of Delaware, October 16, 2008
Hignutt v. Delaware, No. 169, 2008
Convictions for felony theft and falsifying business records are affirmed where: 1) a witness's testimony about his personal goals was routine background information and not unfairly prejudicial to defendant; and 2) defendant was not entitled to a jury instruction on lesser-included offenses.

California Appellate Districts, October 14, 2008
Woods v. Shewry, No. C056072
In a constitutional challenge to several domestic violence programs and programs for inmate mothers, denial of petition for writ of mandate is reversed where: 1) the gender-based classifications in the challenged statutes that provide programs for victims of domestic violence violated equal protection; 2) male victims of domestic violence are similarly situated to female victims for purposes of the statutory programs and no compelling state interest justified the gender classification; and 3) plaintiffs failed to show men are similarly situated to women for purposes of the prison programs for inmate mothers. ..

Texas Court of Criminal Appeals, October 15, 2008
Ex Parte Campbell, No. AP-75,838
In a habeas proceeding for a habitual offender convicted of burglary, challenging the imposition of special parole conditions for sex offenders, habeas relief is denied where: 1) a releasee may be required to comply with sex offender conditions of early release, even if he has never been convicted of a "reportable" sex offense; and 2) the conditions were not imposed in violation of due process.

Texas Court of Criminal Appeals, October 15, 2008
Hernandez v. Texas, No. PD-1879-06
Conviction for capital murder is affirmed where the out-of-court statement of a co-defendant was properly admitted as nonhearsay evidence for impeachment purposes only.

Texas Court of Criminal Appeals, October 15, 2008
Littrell v. Texas, No. PD-1555-07
Conviction and sentence for felony murder are affirmed, and conviction and sentence for aggravated robbery are reversed, where: 1) aggravated robbery was a lesser-included offense of felony murder, and there was no clear legislative intent that an accused should be punished twice for a single act that included both crimes; and 2) defendant's conviction and sentence for the lesser-included offense were therefore in violation of the Double Jeopardy Clause.


Posted On: October 20, 2008

New York Appellate Division Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 20, 2008:

1. People v. Clarke, 4260, 11467/93, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7766; 2008 N.Y. App. Div. LEXIS 7612, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Charles H. Solomon, ...

2. People v. Johnson, 4272, 6383/06, 6946/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7776; 2008 N.Y. App. Div. LEXIS 7611, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Rena K. Uviller, ...

3. People v. Simon, 4274, 1799/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7778; 2008 N.Y. App. Div. LEXIS 7614, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Robert H. Straus, ...

4. People v. White, 4286, 4189/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7787; 2008 N.Y. App. Div. LEXIS 7613, October 16, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

5. People v. Blue, 4290, 5705/02, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7789; 2008 N.Y. App. Div. LEXIS 7620, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bernard J. Fried, ...

6. People v. Roulette, 4300, 2377/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7795; 2008 N.Y. App. Div. LEXIS 7615, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County, (Renee A. White, ...

7. People v. Brown, 4298, 5462/02, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7793; 2008 N.Y. App. Div. LEXIS 7619, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Gregory Carro, J.), ...

8. People v. McLaughlin, 4271, 3949/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7775; 2008 N.Y. App. Div. LEXIS 7627, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bruce Allen, J.), ...

9. People v. Nichols, 4276, 5177/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7780; 2008 N.Y. App. Div. LEXIS 7626, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Roger S. Hayes, ...

10. People v. Noel, 4266, 763/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7770; 2008 N.Y. App. Div. LEXIS 7624, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment of resentence, Supreme Court, New York County (Carol Berkman, J.), ...

11. People v. Dennis, 4281, 3695/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7783; 2008 N.Y. App. Div. LEXIS 7637, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Charles H. Solomon, ...

12. People v. Coppin, 4268, 6126/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7772; 2008 N.Y. App. Div. LEXIS 7639, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Charles J. Tejada, ...

13. People v. Montanez, 4265, 4779/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7769; 2008 N.Y. App. Div. LEXIS 7638, October 16, 2008, Decided, October 16, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Gregory Carro, J.), ...

14. People v. Vazquez, 4284, 497/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7785; 2008 N.Y. App. Div. LEXIS 7641, October 16, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (James A. Yates, ...

Posted On: October 14, 2008

PC Magazine Chooses "5 Sites That Boost Your Political Awareness

PC World has named its '5 Sites That Will Boost Your Political Awareness.' Included on this list are some very useful Web sites that many of you are probaly familiar with. Here is their list as posted by the American Association of Law Libraries Washington Blawg along with some helpful comments.:

Posted On: October 14, 2008

Findlaw Summaries: Constitutional Law October 6-10, 2008

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U.S. 2nd Circuit Court of Appeals, October 08, 2008
Hartline v. Gallo, No. 065309
In claim for unconstitutional strip search in the absence of individualized suspicion that she was secreting contraband, grant of summary judgment in favor of defendants is vacated in part, affirmed in part, and remanded where: 1) defendant's evidence demonstrated a violation of her Fourth Amendment right; 2) defendant was subjected to a strip search by the police, pursuant to departmental policy, in the absence of individualized suspicion that she was secreting contraband on her person; and 3) the district court erred in holding that defendant waived the alternative basis for her section 1983 claim, namely, that the officers violated her Fourth Amendment rights by telecasting her strip search through the 20 police station.

U.S. 6th Circuit Court of Appeals, October 07, 2008
M.A.L. v. Kinsland, No. 07-1409
In an action involving the constitutionality of a public middle school's regulation of a student's leafleting, entry of a permanent injunction against the school and an award of nominal damages is reversed where: 1) the school hallways constituted a nonpublic forum; 2) the restrictions were reasonable and were not overbroad; 3) the heightened Tinker standard did not apply to the school's viewpoint-neutral time, place, and manner restrictions on speech, which were designed to prevent hallway clutter and congestion; and 4) the award could not stand without a constitutional violation.

U.S. 6th Circuit Court of Appeals, October 08, 2008
Bogaert v. Land, No. 08-2130, 08-2131, 08-2140
In an action brought by the sponsor of a petition to recall a Michigan state legislator from office asserting that a state law setting forth qualifications for those collecting recall signatures violated the First Amendment, plaintiff's motion to dismiss defendants' appeal from adverse rulings against them is granted on mootness grounds as the specific steps required by a preliminary injunction had been completed and those steps could not be presently undone

U.S. 7th Circuit Court of Appeals, October 08, 2008
Kozuszek v. Brewer, No. 07-3224
In a 42 U.S.C. section 1983 suit against two county election officials for spoiling plaintiffs' ballots in a general election over questions surrounding their residence, summary judgment for defendants is affirmed where plaintiffs did not produce evidence of willful conduct by defendants to impair plaintiffs' votes.

U.S. 9th Circuit Court of Appeals, October 07, 2008
US v. Delgado, No. 07-50238
In a case involving a commercial truck containing over forty kilograms of cocaine, conviction of possession of cocaine with intent to distribute is affirmed where: 1) a search under Missouri trucking regulations did not violate the 4th Amendment because commercial trucking is a pervasively regulated industry in which reasonable administrative searches do not require a search warrant or probable cause; and 2) direct proof of venue is not necessary where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.

U.S. 9th Circuit Court of Appeals, October 07, 2008
Snoqualmie Indian Tribe v. Fed. Energy Regulatory Comm., No. 05-72739, 05-74060
In an challenge to the relicensing to operate Snoqualmie Falls Hydroelectric Project for another forty years, petition for review of the licensing decision is denied where: 1) the relicensing decision does not substantially burden the petitioner-tribe's free exercise of religion; 2) members of tribe were not forced to choose between following the tenets of their religion and receiving a governmental benefit, nor coerced to act contrary to their religious beliefs by the threat of civil or criminal sanction; and 3) because tribe gained federal recognition after 1997, the National Historic Preservation Act did not require negotiation on a government-to-government basis.

U.S. D.C. Circuit Court of Appeals, October 06, 2008
Comm. on the Judiciary, U.S. House of Representatives v. Miers, No. 08-5357
In a suit brought to compel testimony and the production of documents by White House officials in the Congressional investigation of the forced resignation of nine U.S. Attorneys in 2006, motion for stay pending an appeal of the district court's order to defendants to produce the requested documents and appear to testify is granted where: 1) the district court's orders had the effect of injunctions, and there was therefore appellate jurisdiction; but 2) even if expedited, the controversy would not be fully and finally resolved by the judicial branch prior to the end of the 110th Congress, when the subpoenas at issue would expire.

Supreme Court of Delaware, October 06, 2008
Hoover v. State of Delaware, No. 408, 2007
Upon certification of two questions of law by the Superior Court, the court answers that: 1) section 4176A of the Delaware Code, making it a misdemeanor to cause the death of another by operation of a motor vehicle in violation of the vehicle code, was not unconstitutionally vague, nor did it require a state-of-mind element; and 2) the general liability provisions of title 11, section 251(b) of the Delaware Code did not apply to section 4176A

Posted On: October 14, 2008

Findlaw Summaries: Criminal Law and Procedure October 6-10, 2008

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U.S. 1st Circuit Court of Appeals, October 08, 2008
US v. Jackson, No. 072510
Conviction for being a felon in possession of a firearm is vacated and remanded where defendant was subjected to custodial interrogation before being given his Miranda warnings.

U.S. 1st Circuit Court of Appeals, October 08, 2008
US v. Vasquez, No. 072796
Conviction for drug and gun offenses is affirmed over claims of error that: 1) the district court should have suppressed his statements acknowledging that the drugs were his, his admission that he possessed the gun and the gun itself; and 2) the evidence was insufficient to show that the gun defendant surrendered at his arrest was carried during and in relation to a drug trafficking crime. .

U.S. 1st Circuit Court of Appeals, October 08, 2008
Farley v. Bissonnette, No. 081094
In a conviction for first degree murder, denial of writ of habeas corpus is affirmed over claims that: 1) the trial judge's instruction to the jury that the prosecution "does not have the burden of proving that no one else may have committed the murder" was an error that was contrary to clearly established Supreme Court precedent as stated in In re Winship; and 2) the trial court violated defendant's Sixth Amendment Confrontation Clause right under Delaware v. Van Arsdall, by limiting her cross-examination of a witness.

U.S. 2nd Circuit Court of Appeals, October 06, 2008
U.S. v. Mejia, No. 052856, 056683, 061744
Convictions for conspiracy to commit assaults with a dangerous weapon in aid of racketeering activity, assault with a dangerous weapon in aid of racketeering activity, and discharge of a firearm during a crime of violence are vacated where: 1) the testimony of the Government expert witness violated the Federal Rules of Evidence and the Confrontation Clause of the Sixth Amendment; and 2) that error was not harmless.

U.S. 2nd Circuit Court of Appeals, October 07, 2008
US v. Ojeikere, No. 071970, 073127
Conviction and sentence for wire fraud and conspiracy to commit wire fraud are affirmed where: 1) the defendant managed and supervised his female criminal accomplice, and, therefore, a two-level enhancement is warranted under Section 17 3B1.1(c); and 2) restitution under the Mandatory Victims Restitution Act of 1996 (MVRA) may not be denied simply because the victim had greedy or dishonest motives, where those intentions were not in pari materia with those of the defendant.

U.S. 2nd Circuit Court of Appeals, October 07, 2008
US v. Matthews , No. 070699
Conviction and sentence for conspiracy to commit bank robbery and bank robbery are affirmed where: 1) shifting the burden to the defendant under section 3559(c)(3)(A) was constitutional; 2) because defendant did not prove by a preponderance of the evidence that his felonies were not serious, court refrained from addressing the constitutionality of the clear-and-convincing standard; 3) defendant's Apprendi claim is foreclosed by our case law; and 4) the district court did not err in rejecting of defendant's fair-trial due process claim as untimely.

U.S. 2nd Circuit Court of Appeals, October 08, 2008
US v. Worjloh, No. 063129
Conviction for conspiring to distribute cocaine base and possessing with intent to distribute is affirmed and sentence is vacated and remanded where: 1) federal prosecutors did not seek to offer any evidence obtained by state officials in violation of the Sixth Amendment; 2) district court did not abuse discretion in denying a suppression hearing to enable the court to conclude that contested issues of fact existed as to whether defendant's initiation of conversation with the federal agents was "anything but voluntary"; 3) defendant did not demonstrate that the affiant knowingly misled the Judge; 4) it was highly unlikely that the challenged jury instruction improperly influenced the jury; and 5) district court has to determine whether it would impose a different sentence given its discretion to depart from the Guidelines for crack cocaine.

U.S. 2nd Circuit Court of Appeals, October 08, 2008
Hartline v. Gallo, No. 065309
In claim for unconstitutional strip search in the absence of individualized suspicion that she was secreting contraband, grant of summary judgment in favor of defendants is vacated in part, affirmed in part, and remanded where: 1) defendant's evidence demonstrated a violation of her Fourth Amendment right; 2) defendant was subjected to a strip search by the police, pursuant to departmental policy, in the absence of individualized suspicion that she was secreting contraband on her person; and 3) the district court erred in holding that defendant waived the alternative basis for her section 1983 claim, namely, that the officers violated her Fourth Amendment rights by telecasting her strip search through the 20 police station. .

U.S. 2nd Circuit Court of Appeals, October 09, 2008
US v. Kozeny, No. 073107
In charges of violations of the Foreign Corrupt Practices Act (FCPA), the Travel Act, money laundering, and making false statements to an FBI agent, judgment granting defendant's motion to dismiss as to most of the counts on which he had been indicted is affirmed where the plain language of the provision, and the structure and content of the law by which it was enacted, required the government to apply for a suspension of the running of the statute of limitations before the limitations period expires. .

U.S. 2nd Circuit Court of Appeals, October 10, 2008
US v. DeFilippo, No. 071618
Conviction and sentence for conspiracy to racketeer, illegal gambling, and conspiracy to collect credit through extortionate means are affirmed over claims of error that: 1) the district court erred when it admitted testimony from a high-ranking member of the Bonanno Crime Family; 2) the murder of George Sciascia was not relevant conduct because it was not related to a conspiratorial object of which defendant was convicted; 3) the Government failed to rebut an alleged presumption that a person withdraws from a conspiracy when he is arrested; and 4) the district court erred in refusing to hold a hearing on that issue.

U.S. 5th Circuit Court of Appeals, October 06, 2008
US v. Constante, No. 07-41004
Sentence for possession of a firearm by a convicted felon is vacated and remanded where prior state convictions for burglary did not constitute violent felonies for sentence-enhancement purposes.

U.S. 5th Circuit Court of Appeals, October 08, 2008
US v. Hope, No. 07-60769
Conviction and sentence for two counts of being a felon in possession of a firearm are vacated and remanded where possession of the same gun when arrested and on the previous day in a robbery, absent evidence that the possession was interrupted, did not constitute two separate violations of the felon-in-possession statute.

U.S. 6th Circuit Court of Appeals, October 06, 2008
Newman v. Metrish, No. 07-1782
Grant of an application for a writ of habeas corpus based on the insufficiency of the evidence supporting his conviction for second-degree murder and felony firearm is affirmed where there was neither direct nor circumstantial evidence placing petitioner at the scene of the crime.

U.S. 6th Circuit Court of Appeals, October 07, 2008
US v. Castano, No. 06-1720
Convictions for being a felon-in-possession of a firearm and carrying a firearm during and in relation to a drug trafficking crime are reversed in part as to the latter conviction where: 1) jury instructions and verdict form for such conviction were infected by a number of errors which impermissibly authorized a conviction of a non-existent offense, which in this case was that of possessing a firearm simply during a drug trafficking offense; and 2) the errors were prejudicial and the district court plainly erred.

U.S. 6th Circuit Court of Appeals, October 07, 2008
US v. Alexander, No. 07-1758
A sentence for possessing crack cocaine with the intent to distribute is affirmed where: 1) the district court did not commit a plain error in designating defendant a career offender for sentencing purposes as he committed a prior crime of violence, and he otherwise satisfied the criteria necessary to be considered a career offender; and 2) the sentence was otherwise reasonable.

U.S. 6th Circuit Court of Appeals, October 09, 2008
US v. Lawson, No. 044480
Conviction for charges related to the Racketeer Influenced and Corrupt Organizations Act (RICO) and drug-related charges is affirmed, sentence is vacated, and case is remanded for sentencing where: 1) defendant was not entitled to a directed verdict on any of the charges of which he was convicted; 2) the evidence belies that Racketeering Acts 1A, 3, and 4 were sporadic, unrelated activities and there was sufficient evidence that they constituted a pattern of racketeering activity; 3) the RICO conspiracy conviction must be affirmed because defendant's agreement to violate RICO can be inferred from his acts; and 4) there was insufficient evidence to support the RICO predicate act that was used to determine defendant's sentencing range under the Sentencing Guidelines. .

U.S. 6th Circuit Court of Appeals, October 10, 2008
Johnson v. Bagley, No. 063846, 063847
In a conviction for aggravated murder and sentence of death, petition for habeas corpus is granted where: 1) by failing to interview defendant's mother, defendant's attorneys failed to uncover two critical categories of information that established "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."; and 2) the failure to uncover those pieces of evidence, established prejudice.

U.S. 7th Circuit Court of Appeals, October 06, 2008
Moore v. Tuleja, No. 07-3137
In a 42 U.S.C. section 1983 suit alleging that police used excessive force and denied medical care to a prisoner who died in his jail cell, denial of plaintiffs' motion for a new trial is affirmed where there was sufficient evidence to support the jury's verdict.

U.S. 7th Circuit Court of Appeals, October 06, 2008
Manning v. US, No. 07-1120, 07-1427
In a suit alleging Bivens claims against FBI agents and a tort claim against the U.S. under the Federal Tort Claims Act (FTCA), vacatur of a judgment for plaintiff on his Bivens claims is affirmed where 28 U.S.C. section 2676 applied to bar any claim by plaintiff against individual government employees arising out of the same facts alleged in his FTCA action.

U.S. 7th Circuit Court of Appeals, October 06, 2008
Nunez v. US, No. 06-1014
Conviction on a drug offense is affirmed upon a collateral attack where: 1) defendant's guilty plea was knowing and voluntary, and so his waiver of his right to appeal was valid; and 2) an attorney's performance is not ineffective when, after his client has made a valid waiver of his right to appeal, the attorney ignores his client's direction to file a notice of appeal.

U.S. 7th Circuit Court of Appeals, October 07, 2008
US v. Jackson, No. 07-3226
Sentence for a federal drug possession conviction imposed to run consecutively to a state sentence for violating the terms of defendant's supervised release is vacated and remanded where: 1) the district court had discretion to impose a consecutive sentence; but 2) the decision to impose a consecutive sentence must be explained with reference to the factors enumerated in 18 U.S.C. section 3553(a).

U.S. 7th Circuit Court of Appeals, October 08, 2008
US v. Billings, No. 07-2307
Mandatory-minimum life sentence for possessing with the intent to distribute crack cocaine is affirmed where: 1) the government did not improperly withhold a substantial-assistance motion; and 2) the government was not required to inform defendant of the difficulty his incarceration would create in providing substantial assistance.

U.S. 7th Circuit Court of Appeals, October 09, 2008
US v. Banks, No. 07-3348
Order for a new trial after convictions on drug-related counts is affirmed where the trial court did not abuse its discretion by determining that information not disclosed by the government, which could have been used to impeach its expert witness, was material, and that defendant was prejudiced by the nondisclosure.

U.S. 8th Circuit Court of Appeals, October 08, 2008
Gingras v. Weber, No. 07-3114
Denial of habeas relief from a conviction for possession of marijuana with intent to distribute is affirmed over a claim of ineffective assistance of counsel in relation to an allegedly coerced confession by petitioner where: 1) the facts that were found supported a conclusion that both a Miranda waiver and petitioner's admissions themselves were knowing and voluntary; 2) thus, his ineffective-assistance claim failed, because even if counsel had proceeded differently, there was no reasonable probability that a motion to suppress statements would have been granted; and 3) there was no error in denying his request for an evidentiary hearing at which he could develop his claim.

U.S. 8th Circuit Court of Appeals, October 09, 2008
US v. Samuels , No. 073675
Conviction and sentence for distribution of cocaine base within 1000 feet of an elementary school are affirmed over claims that: 1) the district court erred in denying defendant's pretrial ex parte request for authorization to pay a voice comparison expert more than the maximum allowed by statute; 2) the district court abused its discretion when it denied portions of defendant's motion in limine; 3) the evidence of his state-court marijuana conviction should not have been admitted; 4) two jurors were removed from the venire because they were African-American, as is Samuels; 5) the district court erred in denying defendant's motion for judgment of acquittal or, in the alternative, a new trial; 6) defendant's "prior convictions for a felony drug offense," were improperly used to enhance his sentence; 7) the convictions in question should be counted as a single offense; and 8) the state-law possession offenses would be misdemeanors, not felonies, under federal law and so cannot! be used to sentence him to a statutory mandatory life sentence.

U.S. 8th Circuit Court of Appeals, October 10, 2008
US v. Garate, No. 061667
Sentence of 30 months for traveling with the intent to engage in sexual conduct with a minor that was previously reversed and remanded as unreasonable, is now affirmed where in light of the deferential standard of review set forth in the intervening case of Gall v. US, the court could not say that the lower court abused its discretion in weighing the evidence as it did, where, as here the facts could legitimately be viewed from different perspectives.

U.S. 8th Circuit Court of Appeals, October 10, 2008
US v. Spikes, No. 081489
Sentence for conspiracy to distribute and to possess with intent to distribute methamphetamine is reversed and remanded where: 1) the district court did not articulate any alternative sentence, and there was no clear indication on the record that the district court would have imposed the same sentence if defendant's legal argument had prevailed; 2) the district court did not state whether it would have chosen the same 160-month sentence if faced with a properly calculated advisory range of 135 to 168 months, and if the court had intended to impose "a sentence at the lower end" of the appropriately calculated range, defendant's sentence would be significantly less than 160 months; and 3) thus, the court's error of adding two extra criminal history points affected defendant's substantial rights.

U.S. 9th Circuit Court of Appeals, October 07, 2008
US v. Delgado, No. 07-50238
In a case involving a commercial truck containing over forty kilograms of cocaine, conviction of possession of cocaine with intent to distribute is affirmed where: 1) a search under Missouri trucking regulations did not violate the 4th Amendment because commercial trucking is a pervasively regulated industry in which reasonable administrative searches do not require a search warrant or probable cause; and 2) direct proof of venue is not necessary where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.

U.S. 9th Circuit Court of Appeals, October 08, 2008
Delgado v. Mukasey, No. 03-74442
Petition for review of denial of applications for asylum, withholding of removal, and withholding under the Convention Against Torture are dismissed in part and denied in part where: 1) the Board of Immigration Appeals may determine by adjudication that a crime is "particularly serious" without it being so classified by regulation; 2) the Court lacks jurisdiction to review the merits of such decisions; and 3) petitioner did not prove a likelihood of future torture if returned to El Salvador.

U.S. 9th Circuit Court of Appeals, October 09, 2008
US v. Lemoine, No. 06-50663, 07-50083, 07-35761
In a challenge to a victim restitution payment schedule by inmates participating in the Inmate Financial Responsibility Program (IFRP), denial of a motion to modify the payment schedule and a motion for reconsideration is affirmed where: 1) the district court properly sets a restitution repayment schedule as required under the Mandatory Victim Restitution Act; 2) the Bureau of Prisons (BOP) has the authority to encourage voluntary payments in excess of those required under the court’s judgment; and 3) the BOP can do so by conditioning the receipt of certain privileges during the term of imprisonment on the inmate’s participation in the IFRP.

U.S. 9th Circuit Court of Appeals, October 10, 2008
US v. Maes, No. 07-10495
In a case regarding which law should govern possession of marijuana and drug paraphernalia on Department of Veteran Affairs (VA) property, conviction under 21 U.S.C. section 844(a) is affirmed where prosecutors have latitude in choosing from applicable charges and 38 C.F.R. section 1.218(a)(7), a VA regulation forbidding introduction of drugs including marijuana onto VA property except when medically prescribed, does not repeal or supersede federal statute.

U.S. 10th Circuit Court of Appeals, October 07, 2008
US v. Sharkey, No. 08-3115
Denial of defendant's motion to reduce his sentence pursuant to 18 U.S.C. section 3582, following a plea to distribution of crack cocaine within one thousand feet of a school, is affirmed where: 1) Guidelines Amendment 706, enacted after defendant was sentenced, had no effect on the career offender guidelines in U.S.S.G. section 4B1.1, which were the guidelines used in sentencing him; 2) thus, "a reduction" in his term of imprisonment "is not consistent with" the policy statement in section 1B1.10 and therefore was not authorized under section 3582(c)(2).

U.S. 11th Circuit Court of Appeals, October 07, 2008
US v. Jackson, No. 0713374
Conviction and sentences for felony drug offenses are affirmed in part, vacated in part, and remanded for resentencing where: 1) jurisdiction existed over the section 851 notice issue; 2) the district court erred in striking the government's section 851 notice; 3) the district court did not err in denying a judgment of acquittal due to insufficiency of the evidence and/or any alleged material variance between the type of drugs charged in the indictment and the trial evidence; 4) defendant's related argument that the alleged errors in the drug quantity finding resulted in a sentence above the statutory maximum is rejected; and 5) defendant's speedy trial arguments were also unfounded.

U.S. 11th Circuit Court of Appeals, October 09, 2008
US v. Valladares, No. 0714592
For charges related to conspiracy, defrauding the U.S. by impairing the functioning and administration of the Medicare Program, submitting false claims to the Department of Health and Human Services, and knowingly soliciting and receiving cash kickbacks involving a federal health care program, convictions and sentences are affirmed over claims that the district court erred by: 1) denying defendant's motions to continue the trial; 2) miscalculating defendant's applicable guideline range by using the commercial bribery guideline in United States Sentencing Guidelines section 2B4.1 (Nov. 2006) to calculate her base offense level, applying an 18-level enhancement under U.S.S.G. section 2B4.1(b)(1)(B), and applying a four-level aggravating-role enhancement under U.S.S.G. section 3B1.1(a); 3) improperly calculating the amount of restitution; and 4) improperly ordering forfeiture.

Supreme Court of Florida, October 08, 2008
Price v. Florida, No. SC06-2045
A habeas petition seeking relief from a conviction for sexual battery on a physically incapacitated person is denied where: 1) the information was not fatally defective for failing to allege an essential element of the crime; 2) the claim that the information was defective was therefore required to have been raised on direct appeal; and 3) the district court properly dismissed defendant's direct appeal upon his pro se motion, even though he was technically still represented by counsel.

Supreme Court of Florida, October 08, 2008
In re: Amendments to Fla. R. Crim. P. 3.112--Minimum Standards for Attorneys in Capital Cases, No. SC08-1292
Upon the recommendation of the Supreme Court Criminal Steering Committee, the court adopts amendments to Fla. R. Crim. P. 3112 to bring the rule into conformity with its stated objective that all attorneys representing capital defendants, including court-appointed counsel, meet certain minimum standards of competency.

Supreme Court of Florida, October 08, 2008
Williamson v. Florida, No. SC07-564, SC07-1787
In a first-degree murder case, denial of motion for postconviction relief is affirmed in part and remanded in part, and petition for habeas relief is granted in part and denied in part where: 1) remand was necessary to determine whether trial counsel was ineffective for failing to voir dire an expert witness, or for failing to request a curative instruction on that witnesses testimony; 2) appellate counsel was ineffective for failing to raise a claim regarding attempted felony murder, although defendant did not suffer prejudice based on this failure; and 3) a number of other ineffective-assistance claims failed.

Supreme Court of Florida, October 09, 2008
Lugo v. Florida, No. SC06-1532
In a first-degree murder case in which defendant was sentenced to death, denial of postconviction relief is affirmed over claims of: 1) ineffective assistance of counsel during both the guilt and penalty phases; 2) a juror's failure to disclose that he had been the victim of a violent crime; 3) Vienna convention violations arising from defendant's arrest in the Bahamas; 4) Brady and Giglio violations; and 5) the denial of a request to amend the postconviction motion by adding four new claims.

Supreme Court of Delaware, October 06, 2008
Hoover v. State of Delaware, No. 408, 2007
Upon certification of two questions of law by the Superior Court, the court answers that: 1) section 4176A of the Delaware Code, making it a misdemeanor to cause the death of another by operation of a motor vehicle in violation of the vehicle code, was not unconstitutionally vague, nor did it require a state-of-mind element; and 2) the general liability provisions of title 11, section 251(b) of the Delaware Code did not apply to section 4176A.

Supreme Court of Delaware, October 06, 2008
Brown v. Delaware, No. 617, 2007; 611, 2007
Convictions of two defendants for felony murder, manslaughter, robbery, and conspiracy are reversed and remanded where defendants had presented some credible evidence supporting their alibi defense and, upon their request, an alibi instruction was therefore required. ..

Supreme Court of Delaware, October 06, 2008
Sierra v. Delaware, No. 582, 2007
A probationer's convictions on drug and weapons charges are reversed and remanded where, under the totality of the circumstances, a tip from a confidential informant did not provide reasonable suspicion to support a search of defendant's home.

Supreme Court of Delaware, October 08, 2008
Claudio v. State of Delaware, No. 213, 2008; 206, 2008
Denials of postconviction motions in a first-degree murder case are affirmed where the trial judge's instruction on the "in furtherance of the commission of a felony" element of felony murder was legally sufficient.

California Appellate Districts, October 08, 2008
People v. Miralrio, No. C056930
Conviction for six counts of sex offenses with minors and one count of battery is affirmed over claims of error that: 1) the trial court improperly allowed the prosecution to amend the information during trial; and 2) the trial court misadvised defendant of the sentencing consequences of going to trial.

California Appellate Districts, October 08, 2008
People v. Guiffre, No. C057127
In a conviction for passing a forged check, imposition of a second restitution fine under section 1202.4(b) is affirmed where the trial court minutes were corrected to reflect that the $200 fine imposed on defendant was a probation revocation fine pursuant to section 1202.44 rather than a state restitution fine under section 1202.4(b).

California Appellate Districts, October 09, 2008
People v. Briones , No. B195452
Sentence of 50 years to life in prison under the Three Strikes Law for possession of drugs for sale and conspiracy to possess drugs for sale is reversed in part and affirmed in part where: 1) defendant may be convicted for only one act of conspiracy to possess drugs for sale; and 2) because the conspiracy and drug convictions were based on the same set of operative facts, defendant may not be punished for both the substantive offenses and the conspiracy. .

California Appellate Districts, October 09, 2008
People v. DeFrance, No. C055878
Conviction and sentence for first degree murder with a robbery special circumstances and a deadly weapon enhancement, robbery, and vehicle theft are affirmed in part and reversed in part where: 1) there was sufficient evidence of robbery; 2) there was sufficient evidence from which the jury could conclude victim had a special relationship with her son to support a finding she had control over his property; 3) while the jury instruction provided little assistance in determining the issue of control, the omission was harmless in this case; and 4) the parole revocation fine must be stricken because defendant was sentenced to life without the possibility of parole.

Texas Court of Criminal Appeals, October 08, 2008
Landrian v. State of Texas, No. PD-1561-07
Conviction for aggravated assault is affirmed where: 1) the gravamen of the offense was "causing bodily injury"; 2) whether the bodily injury was "serious," and whether appellant used a deadly weapon, were mere elements describing two means by which the offense could be committed; and 3) the jury did not have to be unanimous on which aggravating element applied, but could convict if it was unanimously agreed that defendant had committed an assault and that one or the other of the aggravating factors applied. ..

Posted On: October 14, 2008

Findlaw Summaries: Second Circuit U.S. Court of Appeals October 10, 2008

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. DeFilippo, No. 071618
Conviction and sentence for conspiracy to racketeer, illegal gambling, and conspiracy to collect credit through extortionate means are affirmed over claims of error that: 1) the district court erred when it admitted testimony from a high-ranking member of the Bonanno Crime Family; 2) the murder of George Sciascia was not relevant conduct because it was not related to a conspiratorial object of which defendant was convicted; 3) the Government failed to rebut an alleged presumption that a person withdraws from a conspiracy when he is arrested; and 4) the district court erred in refusing to hold a hearing on that issue. .

IMMIGRATION LAW
Shao v. Mukasey, No. 072689
In an immigration matter brought by Chinese nationals who asserted a fear of future persecution, specifically, forced sterilization, if removed to China based on their having fathered or given birth to more than one child, petitions for review of decision of Board of Immigration Appeals (BIA) denying relief from removal are denied where: 1) there was no legal error in the evidentiary framework employed; and 2) because substantial evidence supported the BIA's findings that each of the petitioners failed to demonstrate that his or her stated fears of persecution on return to China were objectively reasonable.

Posted On: October 14, 2008

New York Supreme Court Appellate Division Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 12-14, 2008:

1. People v. D'Agostino, 4228, 2702/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7714; 2008 N.Y. App. Div. LEXIS 7536, October 9, 2008, Decided, October 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (William A. Wetzel, ...

2. People v. Rodriguez, 4221, 4720/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7711; 2008 N.Y. App. Div. LEXIS 7539, October 9, 2008, Decided, October 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Renee A. White, ...

3. People v. Archie, 4236, 3043/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7720; 2008 N.Y. App. Div. LEXIS 7544, October 9, 2008, Decided, October 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (James A. Yates, ...

4. People v. Rivera, 4232, 5061/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7717; 2008 N.Y. App. Div. LEXIS 7535, October 9, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Gregory Carro, J.), ...

5. People v. Castro, 4218, 4986/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7709; 2008 N.Y. App. Div. LEXIS 7548, October 9, 2008, Decided, October 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Robert Stolz, J. ...

6. People v. Jones, 4217, 6196/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7708; 2008 N.Y. App. Div. LEXIS 7543, October 9, 2008, Decided, October 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), ...

7. People v. Caiola, 4231, 785/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7716; 2008 N.Y. App. Div. LEXIS 7537, October 9, 2008, Decided, October 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (James A. Yates, ...

8. People v. Robinson, 4234, 667/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7719; 2008 N.Y. App. Div. LEXIS 7538, October 9, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Charles H. Solomon, ...

9. People v. Richardson, 4224, 2760/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7712; 2008 N.Y. App. Div. LEXIS 7541, October 9, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Michael Obus, J.), ...

10. People v. Davis, 3851, 1350/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 6738; 2008 N.Y. App. Div. LEXIS 7608, September 9, 2008, Decided, September 9, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Eduardo Padro, J.), ...

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Posted On: October 10, 2008

U.S. Federal Documents Covering the Economy

The following list of documents covering the economy for the week ending October 10 was compiled by Basil Tilmon of Gallerywatch. We appreciate his efforts:

Letter to FBI Director Robert Mueller From Reps. Mark Kirk and Chris Carney

Letter Expresses a Need for More Resources to Investigate Corporate Fraud

Interim Final Rule: Deposit Insurance Regulations, Temporary Increase in Standard Coverage Amount, Mortgage Servicing Accounts (PDF 128 KB)

Rule as Adopted by the Federal Deposit Insurance Corporation on Oct. 10, 2008

Notice to Address Amended Returns for Hurricane-Related Casualty Losses and Subsquent Grants Reimbursing Such Losses (PDF 24 KB)

Guidance Prepared by the Internal Revenue Service

Report: Financial Turmoil: Comparing the Troubled Asset Relief Program to the Federal Reserve's Response (PDF 96 KB)

Prepared by the Congressional Research Service

Report: Progress Update on March Policy Statement on Financial Market Developments

Prepared by the Board of Governors of the Federal Reserve System, the Department of the Treasury, the Securities and Exchange Commission and the Commodity Futures Trading Commission

Fact Sheet: President's Working Group Issues Fourth Quarter Policy Statement Update

Released by the Department of the Treasury

Report: Wildlife Watching in the U.S.: The Economic Impacts on National and State Economies in 2006 (PDF 610 KB)

Prepared by the U.S. Fish and Wildlife Service

Letter to Shareholders From AIG Chairman and CEO Edward Liddy (PDF 156 KB)

Letter Regarding the Sale of Stock to the Federal Reserve Bank

Remarks Delivered by World Bank Group President Robert Zoellick

Remarks as Prepared for Delivery at the Opening of the Annual Meetings on Oct. 9, 2008

Letter to Secretary of the Treasury Henry Paulson From AIG Chairman and Chief Executive Officer Edward Liddy (PDF 48 KB)

Letter Seeks to Explain a Trip Made to a Resort by Several AIG Employees Following Government Intervention

Release: FHFA Announces Suspension of Capital Classifications During Conservatorship (PDF 64 KB)

Prepared by the Federal Housing Finance Agency

Remarks Delivered by Under Secretary of the Treasury David McCormick

Remarks as Prepared for Delivery at a News Conference on Oct. 8, 2008

Remarks Delivered by Secretary of the Treasury Henry Paulson

Remarks as Prepared for Delivery at a News Conference on Oct. 8, 2008

Interim Rule: Affordable Housing Program Amendments - Federal Home Loan Bank Mortgage Refinancing Authority (PDF 840 KB)

Affordable Housing Program Rule as Ordered Printed by the Federal Housing Finance Agency on Oct. 8, 2008

Report: Examining the Causes of the Credit Crisis of 2008 (PDF 148 KB)

Prepared by the Minority Staff of the House Oversight and Government Reform Committee

Letter to President Bush From Sen. Hillary Rodham Clinton (PDF 452 KB)

Letter Urges the Department of Treasury to Aid Small Businesses, Universities, Students and Municipalities Already Feeling the Damaging Effects of the Credit Crisis

Fact Sheet: Shared National Credits Program Reports Large Increase in Credit Volume and Significant Deterioration in Credit Quality (PDF 120 KB)

Prepared by the Office of Thrift Supervision, Federal Deposit Insurance Corporation, Board of Governors of the Federal Reserve System and Office of the Comptroller of the Currency

Remarks Delivered by President Bush Regarding the Emergency Economic Stabilization Act

Remarks as Delivered at Guernsey Office Products, Inc. on Oct. 7, 2008

Report: Consumer Credit for August 2008 (PDF 20 KB)

Federal Reserve Report Indicates the First Decline in Consumer Credit in Ten Years

Speech Delivered by Federal Reserve Board Chairman Ben Bernanke

Remarks as Prepared for Delivery Before the National Association for Business Economics 50th Annual Meeting on Oct. 7, 2008

Report: Government Policy Blunders Largely Caused the Global Financial Crisis (PDF 44 KB)

Prepared by the Minority Staff of the Joint Economic Committee

Memorandum to the FDIC Board of Directors From Director Sandra Thompson (PDF 168 KB)

Memorandum Titled, "Interagency Notice of Proposed Rulemaking on Capital Treatment of Certain Claims on or Guaranteed By, Fannie Mae and Freddie Mac"

Proposed Rule to Revise Deposit Insurance Assesment Rates (PDF 636 KB)

Rule as Adopted by the Federal Deposit Insurance Corporation on Oct. 7, 2008

Memorandum to the FDIC Board of Directors From Division of Insurance and Research Director Arthur Murton (PDF 736 KB)

Memorandum Titled, "Restoration Plan, Notice of Proposed Rulemaking on Risk-Based Assessments and the Designated Reserve Ratio for 2009"

Memorandum to the Office of House Minority Leader John Boehner From House Financial Services Republican Staff (PDF 108 KB)

Memorandum Regarding Republican Alternatives to the Market Recovery Legislation

Documents Regarding the Government Intervention Into AIG - Part Two (PDF 6.5 MB)

Documents Released by the House Oversight and Government Reform Committee on Oct. 7, 2008

Documents Regarding the Government Intervention Into AIG - Part One (PDF 4.0 MB)

Documents Released by the House Oversight and Government Reform Committee on Oct. 7, 2008

Report: U.S. Capital Spending Patterns, 1999-2006 (PDF 508 KB)

Prepared by the Census Bureau

Commercial Paper Funding Facility (CPFF) Terms and Conditions (PDF 57 KB)

Prepared by the Federal Reserve System

Oral Testimony of Luigi Zingales Before the House Oversight and Government Reform Committee (PDF 37.5 KB)

Testimony Provided to the Committee During a Hearing Titled "Causes and Effects of the Lehman Brothers Bankruptcy" on Oct. 6, 2008

Supporting Documents for House Oversight Chairman Henry Waxman's Prepared Testimony (PDF 1 MB)

Correspondence Regarding Lehman Brothers Bankruptcy

Posted On: October 10, 2008

Sentencing Advocacy, Practice and Reform Institute

Congressman Robert C. “Bobby” Scott (D-VA) will share his unique insight and perspective on rates of incarceration, sentencing trends and alternatives, and recent legislation

Click for full Brochure: "http://www.abanet.org/crimjust/calendar/2008fallconference.pdf

Sentencing Advocacy, Practice and Reform Institute

Presented by The American Bar Association Criminal Justice Section

October 24, 2008

The Marvin Center, George Washington University 800 21st St., Washington, DC

This First Of Its Kind Sentencing Institute Will Feature:

A broad array of sentencing and post-sentencing presentations that address the most pressing criminal justice issue of our time

Three tracks of instruction, each focused on issues of concern to different segments of the criminal justice community including prosecutors, public defenders, judges, academics, sentencing consultants, mitigation specialists, corrections personnel, victim advocates, white collar criminal defense attorneys and policy experts

A White Collar Crime Track that will focus on practice and procedure issues of particular concern to criminal defense attorneys in general and white collar practitioners in particular

A Policy Track that will examine sentencing trends and opportunities for reform in both the federal and state courts

A Corrections Track that will focus on conditions of and alternatives to incarceration as well as cutting edge efforts to reduce recidivism

A plenary session on the state of the sentencing union covering rates of incarceration, sentencing trends, racial disparities, alternatives to incarceration and recent federal legislation

Posted On: October 10, 2008

ABA Weekly Newsletter October 10, 2008

Top Ten Stories:

Attorney Fees
Irate Judge Blasts Typos and Errors in Filing, Slashes Fees by $154K
Oct 8, 2008, 07:14 am CDT

Careers
What Michelle Obama Didn't Like About Working at Sidley Austin
Oct 6, 2008, 11:45 am CDT

Law Practice Management
Lawyers Want More Time, Less Stress, Not More Money
Oct 7, 2008, 12:03 pm CDT

Law Firms
Baker, Winston Withdraw Proposals to Take on Heller Lawyers and Leases
Oct 8, 2008, 05:59 am CDT

Law Firms
Some Firms Still Seek Laterals--Including Orrick, Set to Hire 27 Heller Partners
Oct 9, 2008, 06:15 am CDT

Constitutional Law
Judge Asked Too Many Questions, Requiring New Trial
Oct 7, 2008, 06:50 pm CDT

Legal Ethics
Court Suspends Lawyer Who Ignored Discovery, Cited Billable Pressures
Oct 7, 2008, 10:43 am CDT

Trials & Litigation
Judge Tosses Blonde's Suit Claiming Wrong Hair Dye Ruined her Social Life
Oct 8, 2008, 12:24 pm CDT

Mergers & Acquisitions
Judge Holds Weekend Court at Home Over Wachovia Buyout Tussle
Oct 6, 2008, 07:26 am CDT

Law Practice Management
Don't Worry, Some Firms Tell Attorneys, But Many Are Cutting Costs
Oct 8, 2008, 03:49 pm CDT

Posted On: October 10, 2008

Findlaw Summaries: Second Circuit U.S. Court of Appeals October 7-9, 2008

To view the full-text of cases you must sign in to FindLaw.com. All summaries are produced by Findlaw.

ADMINISTRATIVE LAW, AEROSPACE & DEFENSE, LABOR & EMPLOYMENT LAW, MILITARY LAW
Dibble v. Fenimore, No. 063307

In an action for administrative relief brought by plaintiff-state National Guard service technician who was denied reenlistment, grant of summary judgment in favor of defendant-Secretary of the Air Force is affirmed where: 1) the doctrine of intramilitary immunity does not preclude a federal court from reviewing a challenge under the Administrative Procedure Act to a decision by the Air Force Board for the Correction of Military Records; and 2) the district court correctly found that the Board's decision was not arbitrary, capricious, contrary to law, or unsupported by substantial evidence.

CIVIL PROCEDURE, IMMIGRATION LAW
Ajlani v. Chertoff, No. 071170

In an action pursuant to 8 U.S.C. section 1447(b) for declaratory and injunctive relief to effect plaintiff's naturalization as a U.S. citizen and to prohibit his removal from the U.S., dismissal of plaintiff's action is affirmed where: 1) the district court lacked jurisdiction to review the propriety of the removal proceedings pending against plaintiff; and 2) in light of 8 U.S.C. section 1429, the pendency of those removal proceedings precludes plaintiff from stating a claim for relief under 8 U.S.C. section 1447(b) in the form of an order either (a) compelling defendants to admit plaintiff to U.S. citizenship, or (b) directly granting his naturalization.


CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Matthews , No. 070699

Conviction and sentence for conspiracy to commit bank robbery and bank robbery are affirmed where: 1) shifting the burden to the defendant under section 3559(c)(3)(A) was constitutional; 2) because defendant did not prove by a preponderance of the evidence that his felonies were not serious, court refrained from addressing the constitutionality of the clear-and-convincing standard; 3) defendant's Apprendi claim is foreclosed by our case law; and 4) the district court did not err in rejecting of defendant's fair-trial due process claim as untimely.

CRIMINAL LAW & PROCEDURE, REMEDIES, SENTENCING
US v. Ojeikere, No. 071970, 073127

Conviction and sentence for wire fraud and conspiracy to commit wire fraud are affirmed where: 1) the defendant managed and supervised his female criminal accomplice, and, therefore, a two-level enhancement is warranted under Section 17 3B1.1(c); and 2) restitution under the Mandatory Victims Restitution Act of 1996 (MVRA) may not be denied simply because the victim had greedy or dishonest motives, where those intentions were not in pari materia with those of the defendant.

ADMINISTRATIVE LAW, CIVIL RIGHTS, EDUCATION LAW, GOVERNMENT LAW
P., by His Parents v. Newington, No. 074652

Final judgment granting defendant's motion for summary judgment and affirming the decision of an administrative hearing officer that the plaintiff elementary-school student's Individualized Education Plan for the 2005-2006 academic year complied with the requirement under the Individuals with Disabilities Education Act is affirmed where determining whether a student has been placed in the "least restrictive environment" requires a flexible, fact-specific analysis, considering whether, with the aid of appropriate supplemental aids and services, education in the regular classroom may be achieved, and if not, whether the school has included the student in regular classes, programs, and activities to the maximum extent appropriate.

CRIMINAL LAW & PROCEDURE, GOVERNMENT LAW
US v. Kozeny, No. 073107

In charges of violations of the Foreign Corrupt Practices Act (FCPA), the Travel Act, money laundering, and making false statements to an FBI agent, judgment granting defendant's motion to dismiss as to most of the counts on which he had been indicted is affirmed where the plain language of the provision, and the structure and content of the law by which it was enacted, required the government to apply for a suspension of the running of the statute of limitations before the limitations period expires.

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE
Hartline v. Gallo, No. 065309

In claim for unconstitutional strip search in the absence of individualized suspicion that she was secreting contraband, grant of summary judgment in favor of defendants is vacated in part, affirmed in part, and remanded where: 1) defendant's evidence demonstrated a violation of her Fourth Amendment right; 2) defendant was subjected to a strip search by the police, pursuant to departmental policy, in the absence of individualized suspicion that she was secreting contraband on her person; and 3) the district court erred in holding that defendant waived the alternative basis for her section 1983 claim, namely, that the officers violated her Fourth Amendment rights by telecasting her strip search through the 20 police station.

CRIMINAL LAW & PROCEDURE, EVIDENCE, SENTENCING
US v. Worjloh, No. 063129

Conviction for conspiring to distribute cocaine base and possessing with intent to distribute is affirmed and sentence is vacated and remanded where: 1) federal prosecutors did not seek to offer any evidence obtained by state officials in violation of the Sixth Amendment; 2) district court did not abuse discretion in denying a suppression hearing to enable the court to conclude that contested issues of fact existed as to whether defendant's initiation of conversation with the federal agents was "anything but voluntary"; 3) defendant did not demonstrate that the affiant knowingly misled the Judge; 4) it was highly unlikely that the challenged jury instruction improperly influenced the jury; and 5) district court has to determine whether it would impose a different sentence given its discretion to depart from the Guidelines for crack cocaine.

Posted On: October 10, 2008

Twenty Five Important Legal Issues Every Librarian Should Research

Kelly Sonora of the bestcollegeonline blog recently sent us an article by Jessica Merritt recently posted on their site and invited us to post it here we thought our readers would be interested. We do think it will be of interest to many of our readers, particulary those law librarians who serve public patrons and appreciate the opportunity of posting it here. Because the article contains many links we will include only the first paragraph here but will provide a link to the bestcollegeonline blog so you can read the entire article:

25 Important Legal Issues Every Librarian Should Research

By Jessica Merritt

Most people don’t think of librarians as legal entities, but the fact is there are a number of legal issues that are important for librarians to understand. Whether you’re dealing with copyright or disabilities, the best way to protect yourself is to be informed. Be sure that you’ve brushed up on these important issues.

Posted On: October 9, 2008

Selections from Forthcoming Books in 2008: Criminal Law

A list of forthcoming books scheduled for publication in 2008 selected from a subject search of BIP Professional on October 9, 2008:

Enforcing the Law: Police and Society

Author: Publisher: Wadsworth ISBN or UPC: 0-534-62343-3 (Active Record)
Format: Trade Cloth Date: Jun 2008 Price: $88.95 Market: United States
Availability: Available for Order
ISBN 13: 978-0-534-62343-2

Serial Killers

Author: Newton, Michael et al. Publisher: Facts On File, Incorporated ISBN or UPC: 0-7910-9411-1 (Active Record)
Format: Trade Cloth Date: Aug 2008 Price: $35.00 Market: United States
Availability: Available for Order
LC Class #: HV6529.N48 2008 Dewey#: 364.152/3 ISBN 13: 978-0-7910-9411-2

The Criminal Records Manual, 3rd Edition: The Complete National Reference for the Legal Access and Use of Criminal Records

Author: Henry, Larry Publisher: Facts on Demand Press ISBN or UPC: 1-889150-54-1 (Active Record)
Format: Trade Paper Date: Sep 2008 Price: $24.95 Market: United States
Availability: Available for Order
ISBN 13: 978-1-889150-54-3

Sentencing Sex Offenders

Author: Hudson, David L. et al. Publisher: Facts On File, Incorporated ISBN or UPC: 1-60413-079-2 (Active Record)
Format: Trade Cloth Date: Sep 2008 Price: $32.95 Market: United States
Availability: Available for Order
LC Class #: KF9685.H83 2008 Dewey#: 345.73/0253 ISBN 13: 978-1-60413-079-9

The Changing Role of the American Prosecutor

Author: Worrall, John L. et al. Publisher: State University of New York Press ISBN or UPC: 0-7914-7591-3 (Active Record)
Format: Trade Cloth Date: Oct 2008 Price: $83.50 Market: United States
LC Class #: KF9640.C43 2008 Dewey#: 345.73/01 ISBN 13: 978-0-7914-7591-1

Criminal Profiling

Author: Taylor, Robert et al. Publisher: Gale ISBN or UPC: 1-59018-990-6 (Active Record)
Format: Trade Cloth Date: Oct 2008 Price: $32.45 Market: United States
Availability: Available for Order
LC Class #: HV6027.M33 2009 Dewey#: 363.25/8 ISBN 13: 978-1-59018-990-0

The Development of Persistent Criminality

Author: Savage, Joanne Publisher: Oxford University Press, Incorporated ISBN or UPC: 0-19-531031-4 (Active Record)
Format: Trade Cloth Date: Oct 2008 Price: N/A Market: United States
LC Class #: HV9069.D47 2009 Dewey#: 364.3 ISBN 13: 978-0-19-531031-3

Criminal Justice Policy and Planning

Author: Welsh, Wayne N. et al. Publisher: LexisNexis Matthew Bender ISBN or UPC: 1-59345-508-9 (Active Record)
Format: Trade Paper Date: Oct 2008 Price: N/A Market: United States
LC Class #: HV7419.W45 2008 Dewey#: 364.973 ISBN 13: 978-1-59345-508-8

Sentencing and Punishment: The Quest for Justice

Author: Easton, Susan et al. Publisher: Oxford University Press, Incorporated ISBN or UPC: 0-19-921810-2 (Active Record)
Format: Trade Paper Date: Oct 2008 Price: $60.00 Market: United States
Availability: Available for Order
LC Class #: KD8406 Dewey#: 345.42/0772 ISBN 13: 978-0-19-921810-3

Nazi Crimes and the Law

Author: Stoltzfus, Nathan et al. Publisher: Cambridge University Press ISBN or UPC: 0-521-89974-5 (Active Record)
Format: Trade Cloth Date: Oct 2008 Price: $70.00 Market: United States
Availability: Available for Order
LC Class #: KZ1176.5.S76 2008 Dewey#: 341.6/90268 ISBN 13: 978-0-521-89974-1

EU Criminal Law and Justice

Author: Fletcher, Maria et al. Publisher: Edward Elgar Publishing, Incorporated ISBN or UPC: 1-84542-697-5 (Active Record)
Format: Trade Cloth Date: Nov 2008 Price: $125.00 Market: United States
LC Class #: KJE7975 Dewey#: 345.24 ISBN 13: 978-1-84542-697-2

The Oxford Companion to International Criminal Justice

Author: Cassese, Antonio et al. Publisher: Oxford University Press, Incorporated ISBN or UPC: 0-19-923831-6 (Active Record)
Format: Trade Cloth Date: Nov 2008 Price: $260.00 Market: United States
Availability: Available for Order
LC Class #: K5000 Dewey#: 345 ISBN 13: 978-0-19-923831-6

Race and Crime

Author: Gabbidon, Shaun L. et al. Publisher: SAGE Publications, Incorporated ISBN or UPC: 1-4129-6778-3 (Active Record)
Format: Trade Paper Date: Nov 2008 Price: $54.95 Market: United States
Availability: Available for Order
LC Class #: HV6789.G32 2009 Dewey#: 364.973089 ISBN 13: 978-1-4129-6778-5

The Principle of Legality in International and Comparative Criminal Law

Author: Gallant, Kenneth S. Publisher: Cambridge University Press ISBN or UPC: 0-521-88648-1 (Active Record)
Format: Trade Cloth Date: Nov 2008 Price: $110.00 Market: United States
Availability: Available for Order
LC Class #: K5165 Dewey#: 345 ISBN 13: 978-0-521-88648-2

Addressing Rape Reform in Law and Practice

Author: Caringella, Susan Publisher: Columbia University Press ISBN or UPC: 0-231-13425-8 (Active Record)
Format: Trade Paper Date: Dec 2008 Price: $29.50 Market: United States
Availability: Available for Order
LC Class #: HV6558.C367 2009 Dewey#: 345.73/02532 ISBN 13: 978-0-231-13425-5


Posted On: October 9, 2008

U.S. Federal Agencies Launch Digitization Guidelines Inititiative

U.S. Federal agencies join together to define digitization guidelines. For more information see the complete posting entry on the American Association of Law Libraries (AALL) Washington Blawg

Posted On: October 9, 2008

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 9, 2008:

1. People v. Calderon, 4198, 009/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7559; 2008 N.Y. App. Div. LEXIS 7404, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (William A. Wetzel, ...

2. People v. Johnson, 4205, 1684/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7566; 2008 N.Y. App. Div. LEXIS 7408, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (William A. Wetzel, ...

3. People v. Linton, 4201, 5326/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7562; 2008 N.Y. App. Div. LEXIS 7414, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Roger S. Hayes, ...

4. People v. Duran, 4194, 3532/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7593; 2008 N.Y. App. Div. LEXIS 7424, October 7, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edward J. McLaughlin, ...

5. People v. McNair, 4214, 6138/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7573; 2008 N.Y. App. Div. LEXIS 7406, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

6. People v. Gomez, 4182, 1129/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7583; 2008 N.Y. App. Div. LEXIS 7421, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Gregory Carro, J.), ...

7. People v. Randolph, 4211, 3433/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7571; 2008 N.Y. App. Div. LEXIS 7436, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Michael J. Obus, ...

8. People v. Walker, 4184, 17/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7584; 2008 N.Y. App. Div. LEXIS 7437, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Robert H. Straus, ...

9. People v. Canty, 4210, 3253/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7570; 2008 N.Y. App. Div. LEXIS 7430, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Philip M. Grella, ...

10. People v. Godbold, 4175, 4239N/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7578; 2008 N.Y. App. Div. LEXIS 7434, October 7, 2008, Decided, October 7, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edward J. McLaughlin, ...

Posted On: October 7, 2008

CLLB Information Security Newsletter

October 2008

October is National Cyber Security Awareness Month
Volume 1, Issue 6

Phishing – How to Avoid Getting Hooked!

From the Desk of David Badertscher
What is Phishing?

Phishing is a scam which attempts to entice email recipients into clicking on a link that takes them to a bogus website. The website may prompt the recipient to provide personal information such as social security number, bank account number or credit card number, and/or it may download malicious software onto the recipient’s computer. Both the link and website may appear authentic, however they are not legitimate.

How does it Work?

Have you received an email, an instant message, or another communication that just did not seem right, even though the communication appeared to be from a reputable organization? This communication could very well be a phishing scam. It’s important to note that in the past, phishing scams were often more easily detectable because of misspellings, typographical errors and blatantly bad grammar; however, they are increasingly more difficult to detect because they often appear so legitimate.


Phishing scams try to “bait” the recipient in a number of ways: the malicious email could include notice of an account cancellation, a request to verify/update personal information, a notice of a purchase that you did not make, or just about anything else that would get you to respond to the communication. The types of messages used in phishing are expanding almost every day, so it is important to be cautious of any communications you receive.


If the email communication, with its enticing subject line, is the “bait,” what is the hook? The hook is getting you, the user, to take some action that enables the phisher to obtain information or otherwise gain access. You may be “tricked” into visiting a website, which appears to be a legitimate organization’s website. Once at that site, you may be asked to enter personal information. Another method of attack may be to get you to open an attachment in an email, upon which malicious code, such as a Trojan horse will be installed onto your computer. Other variations include a telephone call, in which the phisher will ask you to provide personal information. Once the phisher has “hooked” you, they may use the information to open accounts in your name, access your bank account or make purchases using your credit card. There is also a type of phishing attack known as “spear phishing” where the attacker targets specific individuals by name or organizations. For example, an email invitation to attend an event that may be of interest could be sent to an organization’s employees. When an employee clicks on the link contained in that email, malware is downloaded to the employee’s computer. The attacker may be targeting specific employee information, such as user names and passwords, or proprietary organization information.


How do I Know it is a Phishing Scam?

If you receive an email appearing to be from a legitimate business, requesting you submit personal information, it is most likely a scam. Legitimate businesses do not send emails requesting personal information.
Use an Internet search engine to research the subject line of a suspicious email to determine if that subject line is a known phishing scam.

What Can I Do?

Be cautious about all communications you receive. Think before you click.
If the communication looks too good to be true, it probably is.
If it appears to be a phishing communication, do not respond. Delete it. You can also forward it to the Federal Trade Commission at spam@uce.gov.

Do not click on any links listed in the email message and do not open any attachments contained in suspicious email.

Do not enter personal information in a pop-up screen. Legitimate companies, agencies and organizations don’t ask for personal information via pop-up screens.

Install a phishing filter on your email application and also on your web browser. These filters will not keep out all phishing messages, but will reduce the numbers of phishing attempts.

Ensure that your computer is up-to-date on all patches.

Ensure that your antivirus program is installed and up-to-date.

Use bookmarks in your web browser for the organization’s which with you regularly communicate to limit the chances of being redirected to malicious sites.

If you think you have been scammed, visit http://www.ftc.gov/idtheft.

Look for unauthorized charges or withdrawals on your credit card and bank statements/bills.

Review your credit report - visit http://www.ftc.gov for a link to request an annual free credit report.

For more information on phishing, please visit the following sites:

AntiPhishing Work Group: www.antiphishing.org/

OnGuard Online: www.onguardonline.gov/phishing.html

Federal Trade Commission: http://ftc.gov/bcp/menus/consumer/tech/privacy.shtm

National Consumer League’s Internet Fraud Watch: www.fraud.org/tips/internet/phishing.htm

US CERT: www.us-cert.gov/cas/tips/ST04-014.html

WatchGuard Video: www.watchguard.com/education/video/play.asp?vid=budhasmail

National Phishing Webcast- October 9, 2008 2:00pm Eastern: register at www.msisac.org

October is National Cyber Security Awareness Month

The Fifth Annual National Cyber Security Awareness Month is being celebrated during October 2008 as a collective effort among the Multi-State Information Sharing and Analysis Center, the National Cyber Security Division and the National Cyber Security Alliance to raise cyber security awareness nationwide and empower citizens, businesses, government and schools to improve their cyber security preparedness and help promote a safe Internet experience. For more information, and Awareness Materials, please visit the MS-ISAC at www.msisac.org


Posted On: October 7, 2008

Webinar: Twenty Essentials for the Effective Speaker

Do you need to present to key stake holders, engage your audience, get
buy-in for your idea or project, or all of the above? Register for the
following webinar program where Tracy Everett, southwest regional client
relations manager for Littler Mendelson, will share some essentials
needed to be an effective speaker. Please register by October 20.

Twenty Essentials for the Effective Speaker-Webinar

Date: Thursday, October 23, 2008
Time: 12:00 PM to 1:00 PM - Eastern Time

An Effective speaker informs, invigorates and influences
An Effective speaker prepares, prioritizes presents a compelling speech
An Effective speaker takes charge and takes no chances

Please register today for Twenty Essentials for the Effective
Speaker-Webinar. The registration deadline is October 20.

Click here for more information and to register.

http://www.aall.org/calendar/eventdisplay.asp?eid=252&arc=no

Posted On: October 7, 2008

Haworth Press Coming Soon to Informaworld

The following is from a letter announcing that Taylor & Franis Group has recently acquired the publishing portfolio of Haworth Press:

Taylor & Francis Group recently acquired the publishing portfolio of Haworth Press. I am writing to give you advance notification of our schedule for migrating the ejournals from www.haworthpress.com to www.informaworld.com to allow for a smooth platform transition for you and your users.

Timeline
From November 2008 we will begin to load journal titles formerly published by Haworth Press to www.informaworld.com. From this point, no new content with a 2009 volume year will be added to www.haworthpress.com, nor will any new accounts be created on the site. We expect this load to be complete by mid-December, and for all Haworth content to be available on informaworld from this point.

The Haworth Press site will run in tandem with informaworld until 30th March 2009, after which date the site will be closed.

In order to minimise user disruption we plan to offer a free trial to all Haworth Press content on informaworld between November 2008 and February 2009. This will also give you an opportunity to check your holdings on informaworld are correct.

Online Access
The Haworth Press licence currently allows access to purchased volume years only. Once content is loaded to www.informaworld.com, the access model will change to allow online access to current content along with a backfile to 1997, where digitised. Purchased content will be available in perpetuity.

In most cases, online access should be transferred automatically to your institution’s informaworld account. In the case of personal subscribers and any new institutional subscribers who do not yet have an informaworld account you will receive an email detailing how to access your subscription. We will send you an email once all content is loaded to advise you to check your access thoroughly whilst we are dual hosting and report any anomalies to the informaworld support team at support@informaworld.com.

Online Access to Ceased Titles
We plan to host ceased titles from www.haworthpress.com on informaworld and will supply users with a list of these titles in future correspondence. Users will need to claim online access to ceased titles by contacting support@informaworld.com.

Academic to Calendar Year subscriptions
Haworth Press published titles on an academic year basis (September to August). Taylor & Francis will be publishing these titles on a calendar year basis. Any 2007/2008 academic year subscriptions will be extended to 31 December 2008. All volumes will be published on a calendar year basis from 2009.

Link Resolvers
From November 2008 we plan to feature Haworth Press content in the feeds we provide to link resolver intermediaries including Serials Solutions, Ex Libris, TD Net and Ebsco Industries A-Z.

Usage Statistics
Currently the usage statistics on www.haworthpress.com are not COUNTER Compliant. Because the data is not compliant we do not plan to migrate the Haworth Press usage statistics to informaworld. We do hope, after the close of the Haworth Press site, to make available the previous usage statistics from the site. We encourage any user wishing to access these statistics to download them from www.haworthpress.com before March 30, 2009.

It is our hope that this transition causes minimal disruption to you and your library users. Your patience during this transition is very much appreciated and we hope that the move to informaworld from Haworth Press will provide an improved user experience in the long term.

We will contact you with further details on this transition, and have also created a webpage at www.informaworld.com/haworth to keep you updated.

Posted On: October 7, 2008

ABA Criminal Justice Section News Roundup September 22-29,2008

To see the full text of the ABA Criminal Justice Section News Roundup, click on the link below:

ABA Criminal Justice Section Weekly News Roundup 09-22-29-08

Posted On: October 7, 2008

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 6, 2008:

1. People v. Pearson, 5161/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7193; 2008 N.Y. App. Div. LEXIS 7025, October 2, 2008, Decided, October 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
4170 The People of the State ...
Judgment, Supreme Court, New York County (Michael R. Ambrecht, ...

2. People v. Jenkins, 4155, 4328/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7180; 2008 N.Y. App. Div. LEXIS 7028, October 2, 2008, Decided, October 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edwin Torres, J. ...

3. People v. Anthony, 4163, 1920/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7187; 2008 N.Y. App. Div. LEXIS 7031, October 2, 2008, Decided, October 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Brenda Soloff J.), ...

4. People v. Soller, 4168, 6155/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7191; 2008 N.Y. App. Div. LEXIS 7032, October 2, 2008, Decided, October 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Arlene R. Silverman, ...

5. People v. Gillyard, 4164, 6692/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7188; 2008 N.Y. App. Div. LEXIS 7037, October 2, 2008, Decided, October 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Micki A. Scherer, ...

6. People v. Hill, 4167, 4167A, 4552/02, 5675/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7190; 2008 N.Y. App. Div. LEXIS 7036, October 2, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgments, Supreme Court, New York County (Charles H. Solomon, ...

7. People v. O'Kane, 4172, 159/04, 3552/99, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7195; 2008 N.Y. App. Div. LEXIS 7038, October 2, 2008, Decided, October 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgments, Supreme Court, New York County (Arlene R. Silverman, ...

8. People v. Webb, 4140, 648/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7199; 2008 N.Y. App. Div. LEXIS 7039, October 2, 2008, Decided, October 2, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Edward J. McLaughlin, ...

Posted On: October 2, 2008

U.S. Senate Passes Bailout Plan

The U.S. Senate endorsed the $700 million bailout plan by a margin of 74 to 25 in favor. Here are some of the highlights of the Senate Approved Plan as reported in the October 2, 2008 Wall Street Journal (Page A3):

"Like the deal rejected by the House, the Senate bill includes:

$700 BILLION FOR BAD ASSETS: $250 billion immediately, $100 billion on Treasury Secretary's request $350 billion subject to congressional joint resolution.

EQUITY STAKES: Participating companies must provide non-voting warrants to Treasury to cover losses, administrative costs and any profits they make.

EXECUTIVE COMPENSATION: Treasury secretary to set limits on executive compensation in participating companiesl

FORECLOSURE PREVENTION: More efforts to modify risky mortgages, compulsory modification for loans owned and controlled by federal agencies.

OVERSIGHT BOARDS: Creates board with 'cease and desist' authority, establishes special Inspector General.

But it also has some provisions not considered by the House:

MARKET-MARKET: SEC has to study mark-to-market accounting standards and their effects on balance sheets and quality of financial information.

FDIC INSURANCE: Raises federal deposit insurance limits from $100,000 to $250,000 until Dec. 31, 2009. "

TWO RELATED DOCUMENTS:

Section-by-Section Analysis of the Emergency Economic Stabilization Act of 2008

Congressional Budget Office Cost Estimate for the Economic Recovery Substitute Amendment to H.R. 1424

Posted On: October 2, 2008

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County

Update from the Lexis Alert Service, Search run morning of October 2, 2008:

1. People v. Peralta, 4143, 514/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7170; 2008 N.Y. App. Div. LEXIS 7008, September 30, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Robert H. Straus, ...

2. People v. Cannie, 4152, 3021/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7174; 2008 N.Y. App. Div. LEXIS 7014, September 30, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Bruce Allen, J.), ...

3. People v. Cordero, 4151, 8131/97, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7173; 2008 N.Y. App. Div. LEXIS 7017, September 30, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Arlene Silverman, J.), ...

4. People v. Mackie, 4135, 3638/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7168; 2008 N.Y. App. Div. LEXIS 7015, September 30, 2008, Decided, September 30, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State ...
Judgment, Supreme Court, New York County (Carol Berkman, J.), ...

Posted On: October 1, 2008

Proposed Legislation Related to the Second Bailout Attempt in the U.S. Senate HR 1424 and 3997

From information provided by Gallerywatch.com, October 1, 2008

Regardless of the final outcome, these two documents combined should provide you a picture of the second bailout attempt scheduled in the U.S. Senate. Even if you do not see this until action has been taken, they provide some some fascinating reading for those who are interested.

Emergency Economic Stabilization Act of 2008 HR 1424

To Amend the Internal Revenue Act of 1986 to Increase Tax on High Income Individuals HR 3997

Posted On: October 1, 2008

New AALL SCCLL Resource Guide Number 3 is Available

State Court and County (SCCLL) is a Special Interest Group of the American Association of Law Libraries (AALL):

The SCCLL Resource Guide #3 is now officially published and ready to be sent out from AALL HQ. The guide to ordering is here:

http://www.aallnet.org/products/pub_insights.asp

Guide #3, Management Essentials in the Public Law Library

This guide discusses key management principles for the public law library. Although all law libraries are different, many principles—such as budget, resource management, and community relations—must be addressed by all public law libraries. This guide explores five core principles of management via insightful articles from the State, Court, and County Law Libraries Special Interest Section membership: budget/financial planning and negotiation; working with the board; community relations; service development and collection rebalancing; and managing resources.

Price: $10 members/$12 non-members

Thanks to the many authors who aided in the creation of this publication. John Cannan helped spearhead this effort and he would like to thank Sara Galligan and Lisa Jackson for putting in yeoman service looking things over and giving advice on edits. Julia O’Donnell at AALL always does a fantastic job and did so here. Finally, Maureen McGuire did the layout and made it come to life.