Posted On: November 24, 2008

Publication Announcement: Comparative Criminal Procedure: History, Process and Case Studies


By: Raneta Lawson Mack

"This NEW work from William S. Hein & Co., Inc. will take readers one step further than other texts on the market. Most other comparative works in the area of criminal justice are primarily dedicated to the issue of reforming criminal procedure. This work, on the other hand, forgoes a reform-oriented analysis in favour of clarifying the criminal process in other countries as they exist today. Mack offers readers a deeper look into five international legal systems: France, Russia, Spain, Germany and England. This work is unique and distinctive as it provides readers with a retrospective launching point from which to understand and compare current processes. Comparative Criminal Procedure is not just another criminal procedure casebook!" Continue to brochure.


List Price: $95.00
Published: Buffalo; William S. Hein & Co., Inc.; 2008

Posted On: November 24, 2008

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

Update from the Lexis Alert Service, Search run morning of November 24, 2008.

1. People v. Richline, 4610, 3018/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9163; 2008 N.Y. App. Div. LEXIS 8657, November 20, 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 (Renee A. White, ...

2. People v. Rodriguez, 4613, 884/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9165; 2008 N.Y. App. Div. LEXIS 8655, November 20, 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 (Marcy L. Kahn, ...

3. People v. Reddick, 4618, 2880/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9169; 2008 N.Y. App. Div. LEXIS 8658, November 20, 2008, Decided, November 20, 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. ...

4. People v. Martinaj, 4291, 1440/01, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9174; 2008 N.Y. App. Div. LEXIS 8663, November 20, 2008, Decided, November 20, 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 (Bonnie G. Wittner, ...

5. People v. Hooks, 4629, 6123/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9179; 2008 N.Y. App. Div. LEXIS 8631, November 20, 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 Uviller, J.), ...

6. People v. McCray, 4635, 29/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9185; 2008 N.Y. App. Div. LEXIS 8688, November 20, 2008, Decided, November 20, 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 (Bonnie G. Wittner, ...

7. People v. Marrero, 4642, 418/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9190; 2008 N.Y. App. Div. LEXIS 8702, November 20, 2008, Decided, November 20, 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, ...

8. People v. Wall, 4640, 4641, 7162/03, 4442/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9189; 2008 N.Y. App. Div. LEXIS 8676, November 20, 2008, Decided, November 20, 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. Gumbs, 4154, 855/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9173; 2008 N.Y. App. Div. LEXIS 8687, November 20, 2008, Decided, November 20, 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.,

Posted On: November 24, 2008

Adequate Compensation for Judges Is Essential for New York's Business and Economy

A Report by the Atlantic Legal Foundation.

October 2008

From the Report:

This report regarding the impact of the current level of
compensation of the New York Judiciary on the State’s economy
and business community is respectfully submitted by the
Atlantic Legal Foundation.

Introduction

The Atlantic Legal Foundation is concerned that the current
level of judicial compensation may adversely affect the
business community and the health of the State’s economy.
An examination into this subject is important in light of New
York’s position as the financial and commercial capital of the
United States and arguably the world, and New York’s troubled
current economic environment. Attention has been
drawn to the issue by the litigation between Chief Judge of the
State of New York, Judith S. Kaye, and the Governor and
State Legislature concerning judicial compensation. The
impetus for that litigation was the fact that judges in New
York have not received a salary increase in ten years.

Here is the Full Report

Posted On: November 21, 2008

ABA Publication Announcement: Science for Lawyers

From the ABA Science and Technology Section:

Science for Lawyers

By Eric York Drogin, Editor

"Science for Lawyers clearly explains and discusses 13 applied scientific disciplines in jargon-free language that is specifically geared toward lawyers. The book explores the definitions (what is science), the practice (what scientists do) and the professional roles (what ethical guidelines influence scientists) of 13 professional disciplines such as:

Ballistics
Medicine
Physics
Statistics
Linguistics
Genetics
Chemistry
and More!

With dozens of photos, figures, graphics and artwork, the book covers these subjects in terms that are not only easy to understand, but fascinating to read. If you are a lawyer who is ever called upon to defend, proceed against, examine, cross-examine or even consult a scientist, this book is for you."

Product Details:
Regular Price: $129.95
Section of Science & Technology Law Member Price: $119.95

©2008
7 x 10 - Paperback
347 pages, Paper
Product Code:
5450051

Posted On: November 21, 2008

ABA Journal Weekly Newsletter

November 21, 2008

Top Ten Stories:

Law Firms
DLA Piper Asks 275 Non-Equity Partners to Ante Up, Goes to 1-Tier Structure
Nov 19, 2008, 05:15 pm CST

Judiciary
Discipline Body Removes Judge Halverson, Citing 'Bizarre' Staff Treatment
Nov 18, 2008, 07:03 am CST

Law Schools
Author Blames Yale and 'Having a Good Time' for Failing NY Bar
Nov 20, 2008, 08:00 am CST

Law Firms
Miley Cyrus, aka Hannah Montana, to Sing at PI Lawyer's Holiday Party
Nov 19, 2008, 09:33 am CST

Lawyer Pay
Will Bonuses Be Cut? Cravath and S&C Key to the Answer
Nov 18, 2008, 07:39 am CST

Labor & Employment
'Recession-Proof Practice': Advising Employers on Layoffs
Nov 17, 2008, 04:01 pm CST

Law Practice Management
Nixon Peabody: Our 125 New Lawyers Are Just the Start of a Big Growth Plan
Nov 17, 2008, 02:50 pm CST

U.S. Supreme Court
Justice Scalia Goes on Hunting Trip with Plaintiffs Lawyer
Nov 18, 2008, 08:05 am CST

Law Professors
Law Prof Drops Defamation Suit against Students over Racism Claims
Nov 17, 2008, 06:32 am CST

Law Practice Management
Law Firm Recipe for Disaster: High Debt, Low Productivity, Weak Leaders

Posted On: November 21, 2008

U.S. Federal Register Announces Launch of New Electronic Public Information Desk

The Federal Register has announced the launch of a new Electronic Public Information Desk to Provide free public access to public documents.*

To view these documents, go to www.federalregister.gov (link opens in a new window). See “View Documents on Public Inspection" (link opens in a new window) on the left hand side. This new desk grants the public access to documents that will be published in the next day’s Federal Register as early at 8:45 a.m. EST. Previously, such documents could only be seen by viewing the documents physically located at the Office of the Federal Register in Washington, DC.

See Press Release at: http://www.archives.gov/press/press-releases/2009/nr09-06.html
_____________________________________
*Thanks to Linda Defendeifer, Research Analyst at Hogan & Hartson in Washington, DC for providing this information.

Posted On: November 21, 2008

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

Update from the Lexis Alert Service, Search run morning of November 21, 2008.

1. People v. Witt, 4577, 1458/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8984; 2008 N.Y. App. Div. LEXIS 8555, November 18, 2008, Decided, November 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 (Carol Berkman, J.), ...

2. People v. Waterman, 4591, 2999/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8992; 2008 N.Y. App. Div. LEXIS 8544, November 18, 2008, Decided, November 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 (Michael J. Obus, ...

3. People v. Fabian, 4596, 2064/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8997; 2008 N.Y. App. Div. LEXIS 8550, November 18, 2008, Decided, November 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, ...

4. People v. Ray, 4564, 1011/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8974; 2008 N.Y. App. Div. LEXIS 8548, November 18, 2008, Decided, November 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 (Jeffrey Atlas, J. ...

5. People v. Chappotin, 4584, 529/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8989; 2008 N.Y. App. Div. LEXIS 8549, November 18, 2008, Decided, November 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 (Maxwell Wiley, J.), ...

Posted On: November 20, 2008

ABA Journal Survey: Lawyers, The Job Market, and the State of the Economy

We are posting this survey at the request of the ABA Journal and encourage lawyers to respond.

The ABA Journal is surveying lawyers about the job market and the current state of the economy. We'd appreciate it if you could let readers know about our survey with a mention on your blog. Here is the link:

http://www.surveymonkey.com/s.aspx?sm=9Dhw2g7bX_2bxfq4mW8eB1Cg_3d_3d

Survey results will be published in the January ABA Journal. If you post a note about our survey on your blog and send us the link, we'll be sure you're among the first to know when we're ready to post the results. Answers will be kept confidential and used only in combination with all other responses received. If you have any questions or suggestions, please feel free to contact me.

Thanks for your help.

Sincerely,

Stephanie Francis Ward
Legal Affairs Writer
ABA Journal

Posted On: November 20, 2008

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

Update from the Lexis Alert Service, Search run morning of November 20, 2008.

1. People v. Brightley, 4223, 14385/89, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8970; 2008 N.Y. App. Div. LEXIS 8531, November 18, 2008, Decided, November 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 (Leslie Crocker Snyder, ...

2. People v. Noralez, 4568, 4162/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8976; 2008 N.Y. App. Div. LEXIS 8536, November 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 (Bonnie Wittner, J.), ...

3. People v. Beard, 4569, 4570, 3197/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8977; 2008 N.Y. App. Div. LEXIS 8538, November 18, 2008, Decided, November 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 (Charles J. Tejada, ...

4. People v. Feliz, 4573, 3625/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8980; 2008 N.Y. App. Div. LEXIS 8526, November 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, ...

5. People v. Kettermann, 4574, 4836/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8981; 2008 N.Y. App. Div. LEXIS 8528, November 18, 2008, Decided, November 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, ...

6. People v. Snovitch, 4590, 6042/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8991; 2008 N.Y. App. Div. LEXIS 8524, November 18, 2008, Decided, November 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, ...

7. People v. Sanchez, 4599, 546/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9000; 2008 N.Y. App. Div. LEXIS 8537, November 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 (Gregory Carro, J.), ...

Posted On: November 20, 2008

New York Library Supporters Protest State Cuts

"About 450 librarians and library supporters rallied against budget cuts at the New York State Capitol in Albany November 18. Gov. David Paterson has proposed $20 million in cuts to libraries, which the New York Library Association says will reduce library aid for the state’s 73 library systems to a level not seen since 1993. State aid to libraries was flat between 1998 and 2006. Paterson called lawmakers into an emergency session to make mid-year budget cuts, but legislators did not take any action..."
.
White Plains (N.Y.) Journal News, Nov. 18; New York Library Association

Posted On: November 17, 2008

Letter to People of Illinois from President-elect Brack Obama Announcing Resignation from Senate

The following is a brief excerpt from President-elect Barack Obama's letter to the people of Illinois announcing his resignation from the U.S. Senate.:

"Today, I am ending one journey to begin another. After serving the people of Illinois in the United States Senate -- one of the highest honors and privileges of my life -- I am stepping down as senator to prepare for the responsibilities I will assume as our nation's next president. But I will never forget, and will forever be grateful, to the men and women of this great state who made my life in public service possible."

Here is the letter.a>

Posted On: November 17, 2008

CLLB Information Security Newsletter

November 2008 Volume 3, Issue 11

MAIN TOPIC:

Internet Shopping – How to Enhance Your Security Online

From the Desk of David G. Badertscher
The Holidays are Approaching – Help Protect Yourself and Shop Smart!


The holiday shopping season is upon us and the volume of online shopping is increasing. According to some estimates, holiday e-commerce spending totaled $29 Billion in 2007, an increase from $24 billion in 2006. While online shopping can be convenient and time-saving, you must shop smart and take precautions to mitigate the risks.


Below are some helpful tips to follow for a safe online shopping experience:


Enhance the security of your computer. Be sure to install a firewall and make sure your computer has the most current anti-virus and anti-spyware software before you begin your online shopping. Set your default settings on your computer to “auto update.”

Use strong passwords. When creating passwords for online accounts, use at least eight characters, with numbers, special characters, and upper and lower case letters. Don’t use the same passwords for online shopping websites that you use for logging onto your computer. Never share your login and/or password.

Guard the security of your transaction. When submitting your purchase information, look for the "lock" icon on the browser's status bar and be sure “https” or “shttp” appears in the website’s address bar. The "s" stands for "secure.”

Don't email your financial information. Clear-text emails are not a secure method of transmitting financial information such as your credit card, checking account, or Social Security numbers.

Keep a paper trail and check your credit card and bank statements regularly. Print and save records of your online transactions, including the product description and price, the online receipt, and copies of every email you send or receive from the seller. Read your credit card and bank statements as you receive them and be on the lookout for unauthorized charges.

Don’t respond to pop-up messages. If you get an email or pop-up message while you're browsing, don't reply or click on the link in the message, especially if it is asking for personal or financial information. Legitimate organizations don't ask for this information in these ways.

Check the privacy policy. Know what information the merchant is collecting about you, how it will be used, and if it will be shared or sold to others. You can do this by checking the web site to make sure there is a privacy policy posted, and that you're comfortable with the way your personal information is treated under that policy. Look for seals from privacy enforcement organizations like TRUSTe or the Better Business Bureau (BBBOnLine). Be suspicious if you're asked to supply personal information not needed to make a purchase, such as your Social Security number, mother’s maiden name or other personal information.

Limit your online shopping to merchants you know and trust. If you have questions about a merchant, verify it with the Better Business Bureau or the Federal Trade Commission.

Pay by credit card. Credit or charge card transactions are protected by the Fair Credit Billing Act. (Debit cards are covered under the Electronic Funds Transfer Act, but the potential protections provided will depend upon when you report the error, loss or unauthorized use.)
Under the Fair Credit Billing Act, in the event of unauthorized use of your credit or charge card, you generally would be held liable only for the first $50 in charges. Some companies offer an online shopping guarantee that ensures you will not be held responsible for any unauthorized charges made online, and some cards may provide additional warranty, return, and/or purchase protection benefits.

Use temporary account authorizations when available. Some credit card companies offer virtual or temporary credit card authorization numbers. This kind of service gives you use of a secure and unique account number for each online transaction. These numbers are often issued for a short period of time and cannot be used after that period. Contact your credit card company to see if they offer this service.

Know who you are doing business with before placing your order. Confirm the online seller's physical address and phone number in case you have questions or problems.


What to do if you are a victim of online fraud or encounter problems with the online shopping site:

If you have problems during a transaction, you can contact the seller, buyer or site operator directly. If those attempts are not successful, you may wish to file a complaint with the following entities:

the Attorney General's office in your state

your county or state consumer protection agency

the Better Business Bureau at: www.bbb.org

the Federal Trade Commission at: www.ftc.gov/


For more information about secure online shopping, please visit the following sites:

OnGuard Online: www.onguardonline.gov/topics/online-shopping.aspx

US-CERT: www.us-cert.gov/cas/tips/ST07-001.html

StaySafeOnline www.staysafeonline.org/

Federal Trade Commission: www.ftc.gov/opa/2008/11/smartshopping.shtm and www.ftc.gov/bcp/menus/consumer/tech/online.shtm

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

WatchGuard: www.watchguard.com/infocenter/editorial/18714.asp

Online Cyber Safety: www.bsacybersafety.com/video/


For more monthly cyber security newsletter tips visit:
www.msisac.org/awareness/news/

The information provided in the Monthly Security Tips Newsletters is intended to increase the security awareness of an organization’s end users and to help them behave in a more secure manner within their work environment. While some of the tips may relate to maintaining a home computer, the increased awareness is intended to help improve the organization’s overall cyber security posture. Organizations have permission--and in fact are encouraged--to brand and redistribute this newsletter in whole for educational, non-commercial purposes.

ADDITIONAL NEWS:

From: CIO & CSO Enterprise Business Alert November 14, 2008

Top 10 Ways to Protect Against Web Threats

You can thwart many web attacks with protections at the Web Gateway. Make sure your Secure Web Gateway provides these requirements to stop malware. Users never intend to visit a malware site, but it can happen innocently enough.

Download now:
http://www.cio.com/download-center?id=50065441&source=cxoalert_entbiz111408

Selections from SC Newswire, November 11, 2008.

Top 10 Ways to Protect Against Web Threats

You can thwart many web attacks with protections at the Web Gateway. Make sure your Secure Web Gateway provides these requirements to stop malware. Users never intend to visit a malware site, but it can happen innocently enough. Read this Top 10 list to protect your enterprise network.

Download now:
http://www.cio.com/download-center?id=50065441&source=cxoalert_entbiz111408



Posted On: November 17, 2008

Cell Phones and Text Messaging

Notes from Law Technology News Online Update November 17, 2008.


Cell Phones

"If you use a handheld device while driving in California, Connecticut, New Jersey, New York, Puerto Rico, or Washington (state or D.C.), you are breaking the law. Utah and New Hampshire have some mention of handheld cell phone use — but mostly as a means of enacting distracted driver laws. Some jurisdictions have bans in certain cities (including Phoenix and Detroit)."

"If you're a novice driver (and jurisdictions vary on what constitutes "novice"), you are banned from using all cell phones while driving within D.C. and 18 states. D.C. and 17 states have also banned the use of handheld cell phones when operating a school bus when passengers are present (except emergencies)"

"There are some exceptions. In California, commercial drivers are exempted from the ban until the year 2011. Connecticut and D.C. have exemptions for some professions as well. And while certain locales have addressed handheld cell phone devices, no states have completely banned the use of all cell phones while operating a vehicle."

Text Messaging.

"What's more amazing than cell phone use are people texting or reading text messages while driving. Perhaps equally amazing is that it's not illegal in most jurisdictions. Let's break this down. You're holding the device in one hand, texting with the other — so where does that leave maneuvering the steering wheel or watching the road. I've talked to several compulsive texters who say it's O.K. for them but they wouldn't want anyone else doing it. (Are you nuts? Just read about the five cheerleaders killed in a 2007 New York crash where a 17-year-old driver was texting. See http://tinyurl.com/LTNteens.)"

"But only six jurisdictions outlaw text messaging while driving: Alaska, California, Louisiana, Minnesota, New Jersey and Washington. And what will you be fined next year in California when the law takes place if you are caught text messaging while driving: $20 fine for a first offense, and $50 for repeat offenders — but I guess we have to start somewhere."

Posted On: November 17, 2008

Library of Congress Merges Acquisition and Cataloging Functions

For the Announcement check the press release at http://www.loc.gov/today/pr/2008/08-190.html..

Questions have been raised as to how this might impact law cataloging. Here is a response from AAron Wolfe Kuperman at the Law Catagoging Section of the Library of Congress:

The impact on the LAW team is limited. We are renamed the "Law Section",
but there are virtually no changes in function, i.e. the Law Section will
not be merged with the acquisitions functions. There will be a slight
improvement (meaning greater involvement) by law catalogers in doing
serials, and a substantial increase in doing non-roman (while Arabic is
done elsewhere, I'll be doing the Hebrew on the law section account rather
than as a "guest" with the Hebraica team, and gained two CJK catalogers
and will do the CJK in our sections). --Aaron

P.S. For those who are interested, the new code for the section is
"xg" rather than "sg" (for those who know how to search it online).

Posted On: November 17, 2008

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

Update from the Lexis Alert Service, Search run morning of November 17, 2008.

1. People v. Burwell, 4553, 6368/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8547; 2008 N.Y. App. Div. LEXIS 8384, November 13, 2008, Decided, November 13, 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.), ...

2. People v. Deas, 4546 486/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8541; 2008 N.Y. App. Div. LEXIS 8377, November 13, 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 (Ronald Zweibel, J.), ...

3. People v. Brown, 4549, 2915N/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8543; 2008 N.Y. App. Div. LEXIS 8374, November 13, 2008, Decided, November 13, 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 (Laura A. Ward, ...

4. People v. Chandler, 4527, 798/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8525; 2008 N.Y. App. Div. LEXIS 8388, November 13, 2008, Decided, November 13, 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, ...

Posted On: November 17, 2008

Findlaw Case Law Summaries: Constitutional Law

November 10 - 14, 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, November 10, 2008
Giragosian v. Ryan, No. 081067
In a claim by plaintiff gun shop owner against chief of police and town for revocation and forfeiture of plaintiff's licenses to carry and sell firearms, defendants' motion to dismiss is affirmed where: 1) plaintiff's section 1983 claims against defendants are barred by the doctrine of res judicata on the basis of claim preclusion; and 2) the district court did not improperly convert plaintiff's motion to dismiss into a motion for summary judgment.

U.S. 4th Circuit Court of Appeals, November 12, 2008
US v. Jefferson, No. 084215
Indictment of defendant-state congressman for conspiracy and substantive offenses related to participation in multiple schemes is affirmed over claims of error that: 1) the grand jury was improperly presented with evidence of defendant's legislative acts and that such evidence was relevant to its decision to indict; and 2) the indictment thus contravened the legislative immunity provided to defendant by the Speech or Debate Clause of the U.S. Constitution, art. I, section 6, cl. 1. .

U.S. 5th Circuit Court of Appeals, November 14, 2008
Cadles of Grassy Meadows II, LLC v. Goldner, No. 07-10711
Petition for panel rehearing granted, prior opinion withdrawn, and matter remanded for further proceedings in light of Kerlin v. Sauceda, 05-0653 (Tex. October 10, 2008).

U.S. 1st Circuit Court of Appeals, November 10, 2008
Giragosian v. Ryan, No. 081067
In a claim by plaintiff gun shop owner against chief of police and town for revocation and forfeiture of plaintiff's licenses to carry and sell firearms, defendants' motion to dismiss is affirmed where: 1) plaintiff's section 1983 claims against defendants are barred by the doctrine of res judicata on the basis of claim preclusion; and 2) the district court did not improperly convert plaintiff's motion to dismiss into a motion for summary judgment.

U.S. 4th Circuit Court of Appeals, November 12, 2008
US v. Jefferson, No. 084215
Indictment of defendant-state congressman for conspiracy and substantive offenses related to participation in multiple schemes is affirmed over claims of error that: 1) the grand jury was improperly presented with evidence of defendant's legislative acts and that such evidence was relevant to its decision to indict; and 2) the indictment thus contravened the legislative immunity provided to defendant by the Speech or Debate Clause of the U.S. Constitution, art. I, section 6, cl. 1.

U.S. 5th Circuit Court of Appeals, November 14, 2008
Cadles of Grassy Meadows II, LLC v. Goldner, No. 07-10711
Petition for panel rehearing granted, prior opinion withdrawn, and matter remanded for further proceedings in light of Kerlin v. Sauceda, 05-0653 (Tex. October 10, 2008).

Posted On: November 17, 2008

Findlaw Case Summaries: Criminal Law and Procedure

November 10 - 14, 2008.

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

U.S. 2nd Circuit Court of Appeals, November 10, 2008
US v. Lopez, No. 063730p.pdf
Conviction for possession of cocaine with intent to distribute and possession of two firearms in furtherance of a drug trafficking crime is affirmed where: 1) the district court did not err in admitting evidence seized from the inventory search of defendant's car; and 2) the district court did not err in admitting expert testimony by a narcotics detective that cocaine and cutting materials found in defendant's car were evidence of distribution

U.S. 2nd Circuit Court of Appeals, November 13, 2008
Brinson v. Walker, No. 060618
In a conviction for robbery and unlawful possession of a weapon, grant of writ of habeas corpus is affirmed where: 1) Appellate Division's ruling that there was no right of defendant to cross-examine on racial bias because it represented "general ill will" rather than "specific hostility towards defendant" constituted an unreasonable application of the Confrontation Clause; and 2) the error was not harmless.

U.S. 2nd Circuit Court of Appeals, November 13, 2008
US v. Buie, No. 070258
Sentence of fifteen years for being a felon in possession of a firearm is affirmed where: 1) because the maximum penalty for the offense to which defendant pleaded guilty was ten years or more under state statute, defendant's state felony narcotics conviction qualified as a "serious drug offense" under the Armed Career Criminal Act (ACCA); and 2) defendant's allegation that he was deprived of counsel at his plea hearing did not state a claim for error of Gideon v. Wainwright magnitude.

U.S. 2nd Circuit Court of Appeals, November 13, 2008
US v. Lopez, No. 081269
Conviction of possession of a firearm by a convicted felon is affirmed where: 1) U.S. marshals had no obligation to obtain defendant's consent after defendant's live-in girlfriend consented to the search; and 2) because defendant did not object, his girlfriend's consent was valid and the search was reasonable.

U.S. 2nd Circuit Court of Appeals, November 14, 2008
Alsol v. Mukasey, No. 072068, 081942, 081112
Petitions for review of decisions canceling removal are granted and orders of the Board of Immigration Appeals are vacated where: 1) a second conviction for simple controlled substance possession under state law is not a felony under the Controlled Substances Act because the offense of conviction did not proscribe conduct punishable as a felony as it did not correspond in any meaningful way with the federal crime of recidivist possession even if it could have been prosecuted in state court as a recidivist offense; and 2) the decision in US v. Simpson did not hold to the contrary.

U.S. 4th Circuit Court of Appeals, November 12, 2008
US v. Jefferson, No. 084215
Indictment of defendant-state congressman for conspiracy and substantive offenses related to participation in multiple schemes is affirmed over claims of error that: 1) the grand jury was improperly presented with evidence of defendant's legislative acts and that such evidence was relevant to its decision to indict; and 2) the indictment thus contravened the legislative immunity provided to defendant by the Speech or Debate Clause of the U.S. Constitution, art. I, section 6, cl. 1.

U.S. 6th Circuit Court of Appeals, November 12, 2008
Davie v. Mitchell, No. 03-4293
In a death penalty case, denial of a petition for a writ of habeas corpus is affirmed where the district court correctly rejected claims that: 1) petitioner's Miranda rights had been violated by police actions in this case, which included four instances of questioning, each following a Miranda warning, over a six-hour period; 2) penalty phase jury instructions were constitutionally deficient; and 3) prosecutorial misconduct denied him due process. .

U.S. 6th Circuit Court of Appeals, November 13, 2008
US v. Davis, No. 05-2465
A conviction for distributing, and for conspiring to distribute, crack cocaine is reversed in part and remanded as to the conspiracy conviction where: 1) the jury was not instructed properly on how it could use certain testimony regarding a prior drug transaction; and 2) such error was not harmless with respect to the conspiracy conviction.

U.S. 6th Circuit Court of Appeals, November 13, 2008
US v. Walls, No. 06-2079
A life sentence resulting from convictions for conspiracy to possess with intent to distribute and to distribute cocaine, as well as conspiracy to launder money, is affirmed over claims that: 1) the district court erred when it imposed an enhancement under U.S.S.G. section 3B1.1 (2005) because it did not find that defendant controlled the actions of others; 2) the sentence was substantively unreasonable in light of a 360-month sentence imposed after his first trial, as well as various other circumstances; 3) the district court erred in finding that certain sentencing decisions were "the law of the case"; 4) it failed to make a proportionality review before imposing the sentence; 5) his convictions were void because Title 21 was never published in the Federal Register, as required by 44 U.S.C. section 1505; and 6) the district court could not legally sentence him for either conviction because both convictions were barred by the statute of limitations and the district judge pr! ejudicially instructed the jury that it had to find him guilty.

U.S. 6th Circuit Court of Appeals, November 14, 2008
US v. Kemp, No. 07-5837
A conviction for being a felon in possession of a firearm is affirmed where: 1) the district court's admission of the names of defendant's prior felonies was not so manifestly incorrect as to amount to plain error; and 2) it correctly refused to give a justification instruction as no reasonable jury could have found that all of the elements of the defense, or even more than one of them, were met in this case.

U.S. 7th Circuit Court of Appeals, November 13, 2008
US v. Perkins, No. 07-3383
Convictions for drug and firearms crimes are affirmed over defendant's objection that evidence regarding his prior convictions for similar offenses, and testimony regarding a prior arrest, were improperly admitted.

U.S. 8th Circuit Court of Appeals, November 14, 2008
Cross v. Mokwa, No. 07-3110
In a 42 U.S.C. section 1983 suit brought by twenty-five protesters against St. Louis, its mayor, and various other officials and police officers, orders denying defendants qualified immunity on various claims are affirmed in part and reversed in part where: 1) denial of qualified immunity on Fourth Amendment claims was error as the actions of officers in entering a condemned building without a warrant to arrest the illegal occupants were not constitutionally unreasonable; 2) denial of qualified immunity on First Amendment claims based on a prior restraint theory was also error as plaintiffs were lawfully arrested for illegally occupying a condemned building, and their property was properly removed from that structure; 3) defendants failed to properly raise challenges to a denial of qualified immunity on strip search claims; and 4) denial of qualified immunity on another plaintiff's claims was proper.

U.S. 9th Circuit Court of Appeals, November 13, 2008
Torres v. City of Los Angeles, No. 06-55817
In a civil rights action against the City of Los Angeles, the LAPD, and four detectives arising from plaintiff's arrest on murder charges and 162 days of incarceration prior to his release, rulings in favor of defendants are affirmed in part and reversed in part where: 1) dismissal of plaintiffs' case against one detective and of plaintiffs section 1983 claim against another detective was proper; but 2) judgment as a matter of law as to two detectives was error; and 3) the district court erred in part as to its denial of plaintiffs' in limine motions. (Substituted opinion)

U.S. 9th Circuit Court of Appeals, November 13, 2008
In re: Gallaher, No. 07-74593
In a criminal appeal arising from a district court's refusal to accept a conditional guilty plea, a petition for writ of mandamus challenging the refusal is denied but the matter is remanded for reassignment to a new judge to reconsider the conditional plea where: 1) under Fed. R. Crim. P. 11(a)(2) the district court had discretion to withhold its consent to the conditional guilty plea; 2) the district court exercised its discretion to reject the plea; but 3) the district court erred by reviewing the Presentence Report (PSR) before rejecting defendant's conditional plea.

U.S. 10th Circuit Court of Appeals, November 12, 2008
US v. Kaufman, No. 06-3099, 06-3124, 06-3125, 07-3151
In a criminal matter involving defendants who had directed severely mentally ill residents of their treatment center to perform sexually explicit acts and farm labor in the nude, allegedly as psychotherapy, their convictions for forced labor and involuntary servitude are affirmed where: 1) even if the trial court plainly erred in ordering defendants to avoid eye contact with former residents who testified against them at trial, they failed to establish that the error affected their substantial rights; 2) there was no plain error in instructing the jury on the meaning of "labor" and "services" under statutes of conviction; and 3) the evidence was sufficient to support the convictions for involuntary servitude. However, on cross-appeal, defendant-wife's sentence is remanded for resentencing where it was procedurally unreasonable because: 1) the evidence supported applying certain enhancements, and the district court failed to make findings sufficient to justify its refusal to ! apply them; and 2) an obstruction of justice enhancement was supported by the record as well.

U.S. 10th Circuit Court of Appeals, November 12, 2008
US v. Alapizco-Valenzuela, No. 07-3327
A sentence for transporting illegal aliens for private financial gain is affirmed over defendant's challenges to: 1) the application of a two-level enhancement under U.S.S.G. section 2L1.1(b)(8) for detaining an alien involuntarily through coercion or threat, or in connection with a demand for payment; and 2) a decision to grant a motion for an upward departure and upward variance.

U.S. 10th Circuit Court of Appeals, November 12, 2008
US v. Thompson, No. 07-6238
A conviction for gun possession by a convicted felon is affirmed over a claim of erroneous denial of a motion to suppress evidence where: 1) defendant's initial encounter with an officer was consensual; 2) once defendant said that he had a gun in his back pocket, the officer had probable cause to seize the gun and arrest him; and 3) it was irrelevant whether defendant continued to provide consent for this search, as the requisite level of suspicion existed to justify such a search and seizure.

U.S. 10th Circuit Court of Appeals, November 12, 2008
US v. Benally, No. 08-4009
Grant of a motion for a new trial from a conviction for forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon is reversed and the conviction reinstated where: 1) the district court erred in admitting both a juror's testimony about racial bias and juror testimony about sending a message under Federal Rule of Evidence 606(b); and 2) this was the only evidence that defendant presented to challenge the verdict. .

U.S. 10th Circuit Court of Appeals, November 12, 2008
US v. Fay, No. 08-5009
Revocation of defendant's supervised release and a denial of his request to serve his revocation sentence concurrently with a previously discharged state sentence is affirmed where: 1) the totality of the circumstances showed that defendant admitted the allegations in the petition, which established that he had violated the terms of his supervised release; and 2) the district court correctly read 18 U.S.C. section 3584(a) and did not err in concluding that it lacked the authority to impose a sentence to be served concurrently with defendant's discharged state sentence.

U.S. 11th Circuit Court of Appeals, November 10, 2008
US v. Steed, No. 0810557
In a per curiam decision, conviction and sentence for possession with intent to distribute marijuana is affirmed where: 1) the district court did not err by denying co-defendant's motion to suppress; 2) the district court did not abuse its discretion in connection with co-defendant's expert testimony; 3) the district court did not commit reversible error by instructing the jury on a theory of deliberate ignorance; and 4) the district court did not violate co-defendant's Sixth Amendment rights at sentencing.

U.S. 11th Circuit Court of Appeals, November 12, 2008
US v. James, No. 08-12067
A life sentence for a felony count involving a crack cocaine and powder cocaine offense is affirmed over claims of error that: 1) Amendment 706 to the sentencing guidelines lowered his base offense level by two levels and, as a result, lowered his guidelines range; and 2) the district court should recalculate the drug quantities for which he is accountable in light of US v. Booker and Kimbrough v. U.S.

U.S. 11th Circuit Court of Appeals, November 14, 2008
Melson v. Allen, No. 0614047
Death sentence for three robbery-murder convictions is affirmed where: 1) criminal petitioner's federal habeas petition is untimely under two sections of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); 2) neither triggering date was tolled by petitioner's Rule 32 proceedings; 3) petitioner also failed to show that the AEDPA's one-year statute of limitation should have been equitably tolled based on the conduct of his state post-conviction attorneys or his claims of actual innocence; and 4) there were no legal grounds excusing the untimeliness of his federal habeas petition.

U.S. D.C. Circuit Court of Appeals, November 14, 2008
US v. Walker, No. 06-3143
Conviction for being a felon in possession of a firearm and possessing an unregistered firearm is affirmed in part and reversed in part where: 1) the Speedy Trial Act required reversing the unregistered-firearm charge; but 2) the felon-in-possession charge was not required to be joined with the unregistered-firearm charge for double jeopardy purposes.

U.S. D.C. Circuit Court of Appeals, November 14, 2008
US v. Anderson, No. 07-3045, 07-3053
Sentence for tax evasion and fraud is affirmed in part and reversed in part where: 1) there was no ex post facto violation in the sentencing of defendant using a later version of the sentencing guidelines, since the sentence would have been the same even had he been sentenced under prior guidelines; 2) the term of imprisonment imposed was reasonable; and 3) the district court incorrectly ruled that it lacked authority to order restitution to the federal government.

U.S. D.C. Circuit Court of Appeals, November 14, 2008
US v. Gardellini, No. 07-3089
Sentence for filing a false tax return is affirmed, despite falling below the guideline range, where the sentencing court properly considered all of the sentencing factors and imposed a substantively reasonable sentence.

Supreme Court of Florida, November 13, 2008
State of Florida v. Pearce, No. SC07-201
Conviction for first-degree murder is affirmed, and death sentence vacated and remanded for resentencing, where: 1) the alleged ineffectiveness of defendant's guilt-phase counsel did not prejudice defendant, and he was not entitled to a new trial on that basis; but 2) penalty-phase counsel was ineffective for failing to properly investigate possible mitigating evidence, and defendant was prejudiced by this failure.

California Appellate Districts, November 10, 2008
People v. Anderson, No. H031106
Conviction for committing a lewd or lascivious act on a child of 14 or 15 years by a person at least 10 years older than that child is affirmed where: 1) error was committed at the beginning of opening argument when the prosecutor misstated the law concerning the element of intent for the charged crimes; however, 2) the prosecutorial error did not warrant reversal of the judgment; and 3) a constitutional challenge to a requirement that defendant register as a sex offender is rejected

Posted On: November 17, 2008

ABA Journal Weekly Newsletter

For week ending November 14, 2008.

Top Ten Stories:

Law Practice Management
After 170 Layoffs, White & Case Pares Down $250K Holiday Party; No Fireworks
Nov 12, 2008, 06:29 pm CST

Law Practice Management
Narcissists with Big Egos Lead Many Law Firms, Consultant Says
Nov 11, 2008, 10:45 am CST

Layoffs
Harvard Law Students, Legal Recruiters among Those Hit by Law Firm Cuts
Nov 12, 2008, 06:06 am CST

Law Practice Management
Note on Chair Informed Cohen Milstein Head of His Expulsion From Firm
Nov 11, 2008, 05:38 pm CST

Law Firms
Why Mayer Brown Shunned a Heller Merger
Nov 11, 2008, 07:46 am CST

First Amendment
Preacher Appeals Sentence for Article Predicting God Would Smite Judge
Nov 13, 2008, 07:08 am CST

Law Practice Management
Legal Futurist: 'The Party is Now Over'
Nov 11, 2008, 09:20 am CST

Careers
Ex-Baker Botts Lawyer Says Colleague's Depressing Advice Made Him Leave
Nov 10, 2008, 01:21 pm CST

Law Practice Management
As More Male Lawyers Use Flextime, its Acceptance Increases
Nov 12, 2008, 06:38 am CST

Careers
Skadden Partner Writes Gay Romance Novel
Nov 13, 2008, 11:10 am CST

Question of the Week for November 14
If Possible, Would You Strike Out on Your Own?

Posted On: November 13, 2008

Job Announcement: Court Administrator

The Reno Nevada Justice Court is recruiting for the position of Court Administrator.

Posted On: November 13, 2008

New York Mid Year Financial Plan Update: 2008-2009 Through 2011-2012

October 28 2008

FROM THE INTRODUCTION:

This Mid-Year Financial Plan (the “Mid-Year Financial Plan”) revises the State’s fiscal projections for the 2008-09 through 2011-12 fiscal years that were set forth in the First Quarterly Update to the Financial Plan (the “First Quarterly Update”) dated July 30, 2008. The revised Plan reflects (a) updated estimates of receipts and disbursements based on DOB’s1 revised economic forecasts for the nation and State, operating results through the first six months of fiscal year 2008-09, and a comprehensive review of factors affecting the long-term current-services forecast; (b) the estimated impact of cost-saving measures approved by the Governor and Legislature in August 2008, after the issuance of the First Quarterly Update; and (c) the status of actions to reduce State operations spending that were instituted earlier in the fiscal year.

The Mid-Year Financial Plan is intended to assist the Legislature and the public in understanding the current operating forecast and the impact of the budget on State finances over a multi-year period. Except where noted, the information is presented on a cash-basis of accounting.

See:FULL REPORT

See also Governor's Press Release November 12, 2008:

Governor Paterson Delivers $5.2 Billion, Two Year Deficit Reduction Plan

Posted On: November 13, 2008

Publication Announcements: Electronic HeinCites 35-08

November 6, 2008.

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By: Douglas W. Lind

"Bibliography of American Law School Casebooks is the first ever topical arrangement of ALL law school casebooks published. This bibliography contains more than 140 chronological subject headings for over 6,100 entries. By organizing the titles in the subject/chronological format, the work provides a basis for tracing both the topical development of legal education and the case method of instruction. No bibliography provides more thorough coverage on early works dealing with legal education than this work. This title is a valuable addition to any legal, academic, or historical library."

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Posted On: November 13, 2008

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

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

ADMIRALTY, INTERNATIONAL TRADE, TRANSPORTATION

Rexroth Hydraudyne B.V. v. Ocean World Lines, Inc., No. 071207

Order awarding defendants partial summary judgment and limiting their liability to $13,500 pursuant to the Carriage of Goods by Sea Act is affirmed where: 1) defendants did not fall within the statutory grasp of the Carmack Amendment; and 2) defendants were therefore entitled to employ the contractual limitations of liability set out in the through bills of lading.


CRIMINAL LAW & PROCEDURE, IMMIGRATION LAW

Mendez v. Mukasey, No. 071114

In an immigration appeal, petition for review of decision ordering petitioner's removal is denied where first degree larceny in the form of "defrauding a public community" is a crime involving moral turpitude


CRIMINAL LAW & PROCEDURE, EVIDENCE

US v. Hamilton, No. 06-2933

Conviction for conspiracy to distribute and possess with intent to distribute marijuana is remanded for further proceedings where defendant's motion to suppress evidence seized from a house, in which he claimed a privacy interest, could not properly be denied on grounds of lack of standing without a hearing. (Amended opinion)


IMMIGRATION LAW, INTERNATIONAL LAW

Balachova v. Mukasey, No. 072278, 072279

Review of decision directing removal of husband and wife petitioners to Russia and denying asylum, withholding of removal, and relief under the Convention Against Torture is dismissed in part, granted in part, and the order of removal is vacated where: 1) wife-petitioner's claims were dismissed for failure to exhaust administrative remedies; 2) there were numerous errors in assessing husband-petitioner's applications for asylum and withholding of removal; 3) IJ's conclusion that husband-petitioner must have participated in the stated abuse because he equivocated the meaning of "rape" was not supported by substantial evidence; and 4) wife-petitioner may be eligible for derivative relief based on her husband's application.


Posted On: November 13, 2008

Findlaw Case Summaries: Constitutional Law, November 3-7, 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, November 05, 2008
Parker v. Gerrish, No. 081045
In a claim that defendant-police officer violated plaintiff's constitutional rights by using his Taser during the course of arrest, verdict in favor of plaintiff and compensatory damage award of $111,000, are affirmed over claims of error that: 1) defendant was entitled to qualified immunity; and 2) the district court's answer to a jury was responsible for an inappropriate damages award.

U.S. 7th Circuit Court of Appeals, November 07, 2008
Choose Life Illinois, Inc. v. White, No. 07-1349
In a suit by an interest group seeking on First Amendment grounds to force the state of Illinois to issue "Choose Life" specialty license plates, judgment in favor of plaintiffs is reversed where: 1) specialty license plates implicate the speech rights of private speakers, not government speech; 2) specialty plates are a nonpublic forum; and 3) the state could enforce a content-based but viewpoint-neutral ban disallowing any abortion-related message, whether pro-life or pro-choice, to be displayed on its license plates.

U.S. 8th Circuit Court of Appeals, November 03, 2008
Kloch v. Kohl, No. 07-2120
In an action brought under 42 U.S.C. section 1983 by plaintiff-physician claiming that provisions of Nebraska's Uniform Licensing Law violated the due process clause of the Fifth and Fourteenth Amendments, an order denying defendant-Nebraska Attorney General absolute and qualified immunity is reversed where defendant was entitled to qualified immunity where: 1) despite the public availability of a "letter of concern" issued to plaintiff by the state medical board, such letter was not the equivalent of a formal censure, did not impair his medical license, and did not violate his due process rights; and 2) even had a constitutional violation been established, defendant's decision to enforce a law of arguable constitutional validity fell within the ambit of protected official discretion.

U.S. 8th Circuit Court of Appeals, November 03, 2008
Heritage Constructors, Inc. v. City of Greenwood , No. 08-1344
In a 42 U.S.C. section 1983 suit against a city for retaliation under the First and Fourteenth Amendments arising from the city's allegedly denying plaintiff a contract in retaliation for an earlier arbitration, summary judgment for the city is affirmed where: 1) a public contractor's right-to-petition claim must involve a matter of public concern, just as a freedom-of-speech claim must; and 2) plaintiff did not allege that its earlier arbitration was a matter of public concern.

U.S. 8th Circuit Court of Appeals, November 04, 2008
Gill v. Maciejewski, No. 07-3451
In a 42 U.S.C. section 1983 action against defendant-officer alleging the use of excessive force, judgment pursuant to a jury verdict in favor of plaintiff is affirmed over claims of error regarding: 1) whether plaintiff met his burden of proving excessive force; 2) evidentiary rulings and jury instructions, 3) exclusion of testimony regarding plaintiff's criminal history and statements made by his lawyer; 4) denial of defendant's motion to offset the damage award by the amount plaintiff's health insurer paid to cover the cost of medical treatment; and 5) an award of attorney's fees and costs.

U.S. 9th Circuit Court of Appeals, November 05, 2008
Humphries v. County of Los Angeles, No. 05-56467
California's maintenance of the California's Child Abuse Central Index (CACI), which is a database of known or suspected child abusers, violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. .

U.S. 9th Circuit Court of Appeals, November 05, 2008
E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., No. 06-56237
In an action brought by the operator of a strip club in Los Angeles against the producer of a video game in the "Grand Theft Auto" series claiming, inter alia, that the game's depiction of a strip club called the "Pig Pen" infringed its trademark and trade dress associated with the "Play Pen", summary judgment for defendant-game producer is affirmed where: 1) modification of plaintiff's trademark was not explicitly misleading and was thus protected by the First Amendment; and 2) the First Amendment defense applies equally to plaintiff's state law claims as to its Lanham Act claim.

U.S. 10th Circuit Court of Appeals, November 04, 2008
Duffield v. Jackson, No. 08-6002
In a 42 U.S.C. section 1983 suit against several members of the medical staff at a correctional center claiming that they violated his Eighth Amendment right to be free from cruel and unusual punishment by showing deliberate indifference to his medical condition, dismissal and summary judgment rulings against plaintiff are affirmed where: 1) plaintiff failed to object to the findings and recommendations of a magistrate and thus waived appellate review of both factual and legal questions; 2) no exception to the firm waiver rule applied; and 3) there was no error in denying his motion for a thirty-day extension in which to object to the magistrate judge's report and recommendations.

U.S. D.C. Circuit Court of Appeals, November 04, 2008
Basardh v. Gates, No. 07-1192
In a Guantanamo Bay detainee's challenge to his detention, the government's motion to hold in abeyance detainee's petition for direct judicial review of the Combatant Status Review Tribunal's determination that he was an enemy combatant is granted where: 1) in light of the decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008), petitioner's prior request for habeas corpus relief could be considered, potentially mooting the petition for direct review; and 2) there was a high probability that while restoring the availability of habeas relief, Boumediene simultaneously stripped the court of jurisdiction to review Detainee Treatment Act petitions.

U.S. D.C. Circuit Court of Appeals, November 04, 2008
Emergency Coalition to Defend Educ. Travel v. U.S. Dep't of the Treasury, No. 07-5317
In a suit challenging the Office of Foreign Asset Control's amendments to regulations governing educational travel to Cuba, dismissal of all claims is affirmed where: 1) at least one plaintiff had standing to challenge the regulations, and there was therefore appellate jurisdiction; but 2) the travel restrictions were content-neutral and did not violate plaintiffs-professors' First Amendment rights; and 3) there was no violation of plaintiffs' Fifth Amendment right to travel internationally.

U.S. Fed. Circuit Court of Appeals, November 04, 2008
Rothe Dev. Corp. v. Dep't of Defense, No. 2008-1017
In an equal-protection challenge to the requirements of 10 U.S.C. section 2323 setting a "goal" that a certain percentage of defense contracting dollars be award to entities owned and controlled by "socially and economically disadvantaged individuals," summary judgment for defendant is reversed where: 1) while considering the legislation at issue, Congress did not have a "strong basis in evidence" before it, upon which to conclude that defendant was a passive participant in racial discrimination in relevant markets across the country and that therefore race-conscious remedial measures were necessary; and 2) without such evidence there was no compelling government interest sufficient to withstand strict scrutiny of the statute, and the statute was therefore unconstitutional on its face.

Posted On: November 13, 2008

Findlaw Case Summaries: Criminal Law and Procedure November 3-7, 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, November 05, 2008
US v. Ford, No. 072613
Conviction for being a felon-in-possession of a handgun and denial of defendant's motion to suppress evidence are affirmed over a claim that the district court erred in denying defendant's motion to suppress a firearm found on his person because it was obtained during an unconstitutional search and seizure. ..

U.S. 1st Circuit Court of Appeals, November 05, 2008
Parker v. Gerrish, No. 081045
In a claim that defendant-police officer violated plaintiff's constitutional rights by using his Taser during the course of arrest, verdict in favor of plaintiff and compensatory damage award of $111,000, are affirmed over claims of error that: 1) defendant was entitled to qualified immunity; and 2) the district court's answer to a jury was responsible for an inappropriate damages award.

U.S. 2nd Circuit Court of Appeals, November 03, 2008
Moseley v. Branker, No. 0171p.pdf
In a conviction and death sentence for capital murder, denial of petition for federal writ of habeas corpus relief is affirmed where: 1) the state motion for appropriate relief (MAR) court's determination that production of the undisclosed evidence would not have resulted in a different verdict, either at guilt or sentencing, in petitioner's trial for the murder was not an unreasonable one; 2) given the similarities in the murders, the evidence that the same person murdered both women and that the person was the petitioner was overwhelming; 3) nondisclosure of evidence by the state was not "so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict," Strickler, 527 U.S. at 281; and 4) the state court's rejection of petitioner's Brady claim was neither contrary to, nor an unreasonable application of, the applicable precedents.

U.S. 2nd Circuit Court of Appeals, November 06, 2008
Mendez v. Mukasey, No. 071114
In an immigration appeal, petition for review of decision ordering petitioner's removal is denied where first degree larceny in the form of "defrauding a public community" is a crime involving moral turpitude.

U.S. 2nd Circuit Court of Appeals, August 15, 2008
US v. Hamilton, No. 06-2933
Conviction for conspiracy to distribute and possess with intent to distribute marijuana is remanded for further proceedings where defendant's motion to suppress evidence seized from a house, in which he claimed a privacy interest, could not properly be denied on grounds of lack of standing without a hearing. (Amended opinion)

U.S. 3rd Circuit Court of Appeals, November 07, 2008
Urcinoli v. Cathel, No. 06-4028
Dismissal as untimely of a petition for habeas relief is vacated where petitioner was entitled to equitable tolling of the limitations period for filing his petition after the district court sua sponte dismissed his original petition for failure to exhaust state-court remedies.

U.S. 4th Circuit Court of Appeals, November 03, 2008
Moseley v. Branker, No. 0717
In a conviction and death sentence for capital murder, denial of petition for federal writ of habeas corpus relief is affirmed where: 1) the state motion for appropriate relief (MAR) court's determination that production of the undisclosed evidence would not have resulted in a different verdict, either at guilt or sentencing, in petitioner's trial for the murder was not an unreasonable one; 2) given the similarities in the murders, the evidence that the same person murdered both women and that the person was the petitioner was overwhelming; 3) nondisclosure of evidence by the state was not "so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict," Strickler, 527 U.S. at 281; and 4) the state court's rejection of petitioner's Brady claim was neither contrary to, nor an unreasonable application of, the applicable precedents.

U.S. 4th Circuit Court of Appeals, November 06, 2008
US v. Hardy, No. 074685
In defendant's sentence of fourteen months imprisonment for conspiracy to commit bank and Social Security fraud through the theft and passage of stolen checks, uttering forged and counterfeit securities, and fraudulent use of a social security number, government's motion to dismiss defendant's appeal is granted where, because defendant failed to identify any collateral consequences stemming from the revocation of his supervised release, his "requisite personal interest" in this litigation evaporated.

U.S. 5th Circuit Court of Appeals, November 06, 2008
Santos-Sanchez v. US, No. 07-40145
In a case in which petitioner-resident alien, having pleaded guilty and served his sentence for aiding and abetting the illegal entry of an alien, sought to vacate his guilty plea in order to avoid removal in proceedings brought by DHS, denial of his petition for a writ of coram nobis is affirmed where: 1) jurisdiction to hear the petition was properly vested in the district court, not the magistrate judge who sentenced petitioner; 2) trial counsel was not ineffective for failing to advise petitioner that a guilty plea would automatically make him removable, nor did counsel affirmatively misrepresent the immigration consequences of his plea; and 3) the magistrate judge's failure to inform petitioner at his plea colloquy of the immigration consequences of a guilty plea did not make the plea involuntary.

U.S. 6th Circuit Court of Appeals, November 04, 2008
US v. Simpson, No. 07-5193, 07-5194
Imposition of a 450-month term of imprisonment and a denial of defendant's motion to dismiss a charge of escape is affirmed over claims that: 1) the sentence was unreasonable; 2) the district court erred in denying a motion to dismiss the escape indictment for violating the Double Jeopardy Clause; and 3) procedurally barred claims.

U.S. 7th Circuit Court of Appeals, November 03, 2008
US v. Wanigasinghe, No. 08-1426
Conviction for bank fraud is affirmed over defendant's objection that he was entitled to dismissal of the indictment based upon an eleven-year lapse between the return of the indictment and his arrest, where: 1) defendant left the country and could not have been easily found; 2) there was no delay in prosecution once defendant returned to the U.S.; 3) defendant was not prejudiced by the delay; and 4) defendant had not sought a speedy trial.

U.S. 7th Circuit Court of Appeals, November 05, 2008
US v. Anderson, No. 07-3654
Sentence for bank robbery is affirmed where defendant made no showing in his motion for reconsideration of sentence that his HIV infection had in any way affected his mental capacity at the time of the offense, and it would therefore have been an abuse of discretion for the sentencing court to grant his request for a mental-health evaluation.

U.S. 8th Circuit Court of Appeals, November 04, 2008
US v. Bolden, No. 06-3264
In a death penalty case resulting from the murder of a security guard outside a St. Louis bank during an attempted robbery, the judgment is affirmed over three primary claims of error regarding: 1) whether a Batson challenge to the prosecution's peremptory strike of a prospective juror, an African American woman, was improperly rejected; 2) findings on two statutory aggravating factors, "pecuniary gain" and "conviction for two felony drug offenses"; 3) a refusal to bifurcate the penalty phase; 4) denial of a motion to suppress; 5) denial of a motion to quash a venire panel; 6) denial of a motion for a separate trial of a felon-in-possession count; 7) various evidentiary rulings; 8) a Brady and Jencks Act claim; 9) findings on non-statutory aggravating factors; 10) mitigation issues; 11) evidentiary claims regarding the penalty phase; 12) jury instructions; 13) findings regarding defendant's mental state for purposes of being eligible for the death penalty; and 14) prosecutor! ial misconduct.

U.S. 8th Circuit Court of Appeals, November 06, 2008
Keys v. US, No. 07-1804
An order denying defendant's 28 U.S.C. section 2255 motion to vacate, set aside or correct his conviction is affirmed where: 1) despite counsel's advice to appeal, defendant told him he did not want to appeal, and counsel could not be ineffective in following his express instructions; 2) trial counsel was ineffective in failing to inform defendant about his right to file a cross-appeal after the government filed a notice of appeal; but 3) defendant was not prejudiced as a result of the deficient performance, as there was no reasonable probability that, but for counsel's failure, defendant would have appealed his conviction or sentence.

U.S. 8th Circuit Court of Appeals, November 07, 2008
US v. Diaz, No. 08-1575
A sentence pursuant to a guilty plea to knowingly possessing methamphetamine with intent to distribute is affirmed where, because the decision to depart by levels is discretionary, the district court's decision to select the higher of two levels that encompassed the mandatory minimum sentence was procedural error..

U.S. 8th Circuit Court of Appeals, November 07, 2008
US v. Nassar, No. 08-1665
In a prosecution for possession of marijuana with the intent to distribute, a denial of defendant's motion to suppress evidence seized from his car is affirmed where: 1) a sergeant's questions about defendant's destination and vehicle were routine, within the scope of a valid traffic stop; and 2) the detention was not prolonged as the sergeant was still processing a warning when he received defendant's consent to search his vehicle.

U.S. 9th Circuit Court of Appeals, November 03, 2008
Latu v. Mukasey, No. 05-75889
In an immigration action interpreting whether violation of Hawaii Revised Statute section 291C-12.5 regarding hit and run accidents categorically constitutes a crime involving moral turpitude (CIMT) allowing removal of a lawfully admitted immigrant, petition for review of a removal order is granted where: 1) to constitute a CIMT, the generic elements of a crime must show that it involves conduct that is "base, vile, or depraved" and violates "accepted moral standards;" 2) section 291C-12.5 incorporates behavior that does not involve moral turpitude because it can be violated by simply failing to provide required information following an accident causing injury or death; and 3) violation of section 291C-12.5 need not constitute fraud.

U.S. 9th Circuit Court of Appeals, November 05, 2008
Humphries v. County of Los Angeles, No. 05-56467
California's maintenance of the California's Child Abuse Central Index (CACI), which is a database of known or suspected child abusers, violates the Due Process Clause of the Fourteenth Amendment because identified individuals are not given a fair opportunity to challenge the allegations against them. .

U.S. 9th Circuit Court of Appeals, November 05, 2008
US v. Youssef, No. 07-10335
A violation of 18 U.S.C. section 1015(a), which criminalizes the making of a false statement in an immigration document, does not require the false statement to be "material" as an element of the offense.

U.S. 9th Circuit Court of Appeals, November 06, 2008
US v. Williams, No. 06-50599, 06-50608, 06-50612
Defendants' convictions for conspiracy to interfere with interstate commerce by robbery, conspiracy to possess cocaine with the intent to distribute, and possession of a firearm during a drug crime and crime of violence are reversed and remanded for a new trial where: 1) there was sufficient evidence to support the convictions; 2) the government did not deny the defendants their due process rights by engaging in outrageous conduct; but 3) the district court, although it did not intend to do so, gave an Allen charge after a juror disclosed that she was a holdout.

U.S. 9th Circuit Court of Appeals, November 07, 2008
US v. Miller, No. 07-30481
Denial of defendant's "Motion to Dismiss Revocation Petition and Request for Immediate Release from Custody" is affirmed where: 1) the district court correctly found that the time that defendant spent at a county jail constituted "imprisonment," and not, as he argued, supervised release; 2) thus, his supervised release term did not start until his release from the jail work release program; and 3) as a result, the district court did have jurisdiction to revoke his supervised release and impose sentence on him.

U.S. 10th Circuit Court of Appeals, October 31, 2008
US v. Zapata, No. 06-1541
Defendants' convictions and sentences stemming from a large-scale cocaine trafficking scheme are affirmed where: 1) based on applicable case precedent, as well as ample evidence supporting the necessity of wiretaps, the district court did not abuse its discretion in authorizing the wiretaps and refusing to suppress evidence obtained therefrom; 2) the evidence was sufficient to support a defendant's conviction; 3) defendants challenging jury instructions did not meet their burden to demonstrate prejudice; 4) there was no abuse of discretion in not severing three defendants' trials; and 5) the sentences were procedurally and substantively reasonable. (Amended opinion)

U.S. 10th Circuit Court of Appeals, October 31, 2008
US v. Poole, No. 07-7080
A conviction for assault resulting in serious bodily injury is affirmed over a claim that the jury's verdict was impermissibly ambiguous where the district court took measures, all without contemporaneous objection, sufficient to render the verdict free of any reasonable claim of ambiguity.

U.S. 10th Circuit Court of Appeals, November 04, 2008
Duffield v. Jackson, No. 08-6002
In a 42 U.S.C. section 1983 suit against several members of the medical staff at a correctional center claiming that they violated his Eighth Amendment right to be free from cruel and unusual punishment by showing deliberate indifference to his medical condition, dismissal and summary judgment rulings against plaintiff are affirmed where: 1) plaintiff failed to object to the findings and recommendations of a magistrate and thus waived appellate review of both factual and legal questions; 2) no exception to the firm waiver rule applied; and 3) there was no error in denying his motion for a thirty-day extension in which to object to the magistrate judge's report and recommendations.

U.S. 10th Circuit Court of Appeals, November 05, 2008
US v. Husted, No. 08-6010
In the context of convictions under the Sex Offender Registration and Notification Act (SORNA) for failure to register as a sex offender after traveling in interstate commerce, the circuit court rules that SORNA cannot apply to a defendant whose interstate travel is complete prior to the effective date of the Act.

U.S. 11th Circuit Court of Appeals, November 03, 2008
US v. McNeese, No. 0810093
Following a four-count indictment against defendant for drug-related charges and sentences of life-imprisonment on 3 counts, grant of government's motion to reduce defendant's sentence as to a specific count of his multi-count judgment is affirmed where: 1) the district court did not err in acting in accordance with the government specification regarding the term to which its Rule 35(b) motion should apply; and 2) regarding the issue of whether the government erred in declining to file a Rule 35(b) motion, the court lacked jurisdiction to review that choice because defendant did not show that the government had unconstitutional motives.

U.S. D.C. Circuit Court of Appeals, November 04, 2008
Basardh v. Gates, No. 07-1192
In a Guantanamo Bay detainee's challenge to his detention, the government's motion to hold in abeyance detainee's petition for direct judicial review of the Combatant Status Review Tribunal's determination that he was an enemy combatant is granted where: 1) in light of the decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008), petitioner's prior request for habeas corpus relief could be considered, potentially mooting the petition for direct review; and 2) there was a high probability that while restoring the availability of habeas relief, Boumediene simultaneously stripped the court of jurisdiction to review Detainee Treatment Act petitions.

Supreme Court of California, November 06, 2008
People v. Arias, No. S155571
In the context of Health and Safety Code section 11366.8, which prohibits the possession of a "false compartment" "with the intent to ... conceal ... or transport a controlled substance within the false compartment", the California Supreme Court interprets section 11366.8 to exclude from its definition of "false compartment" a vehicle's original factory equipment that has not been modified, altered, or changed in any way.

Supreme Court of Florida, November 06, 2008
Lowe v. Florida, No. SC05-633
In a first-degree murder case, conviction and order for a new penalty phase are affirmed, and petition for habeas relief is denied, where: 1) trial counsel rendered effective assistance, but defendant suffered from ineffective assistance of counsel in the penalty phase; 2) defendant's claims of newly-discovered evidence and a Brady violation did not merit vacating his conviction; and 3) habeas relief was not warranted on defendant's claims of ineffective assistance of counsel, unconstitutionality of the capital-sentencing law, and unconstitutionality of the use in sentencing of prior convictions for crimes committed when under age 18.

Supreme Court of Florida, November 06, 2008
Lynch v. Florida, No. SC06-2233, SC07-1246
In a capital case involving charges of burglary, kidnapping, and murder, denial of postconviction relief is affirmed and a petition for habeas relief is denied over defendant's claims of: 1) ineffective assistance of counsel during both the guilt and penalty phases; 2) judicial bias resulting from the postconviction court's in camera inspection of the murder weapon; 3) exclusion of expert testimony regarding the standard of practice for capital defense counsel; 4) Brady and Giglio violations; 5) the insufficiency of the facts proffered during defendant's plea colloquy to support the convictions; 6) incompetency for purposes of determining the constitutionality of his death sentence; 7) failure to charge statutory aggravators in the indictment; and 8) cumulative error.

Supreme Court of Delaware, November 05, 2008
Johnson v. State of Delaware, No. 319, 2007
Defendant's appeal of her conviction for forgery and theft upon a guilty plea is dismissed without prejudice where: 1) defendant had not exhausted her remedies in the trial court by applying for post-conviction relief; but 2) defendant was free to apply for post-conviction relief based on her allegations of ineffective assistance of counsel.

California Appellate Districts, November 04, 2008
People v. Garcia, No. B205182
Sentence for second degree robbery, firearm possession by a felon, carjacking, grand theft auto, and unlawful driving or taking of an automobile is reversed and affirmed as specified where: 1) the number of possible one-year enhancements will depend on whether the current offense is a serious felony; and 2) the trial court had the discretion to impose a concurrent term on a count for being a felon in possession of a firearm.

California Appellate Districts, November 05, 2008
People v. Smith, No. D051448
A trial court does not violate a defendant's rights to due process and a fair trial by preinstructing the jury on the definitions of direct and circumstantial evidence under CALCRIM No. 223, without also preinstructing on the method of assessing the sufficiency of the circumstantial evidence under CALCRIM No. 224, where those instructions are fully and correctly given along with the presumption of innocence and the prosecution's burden of proof at the close of evidence and before deliberations.

California Appellate Districts, November 05, 2008
People v. Stier, No. D051505
Conviction for transportation of methamphetamine is reversed where: 1) certain evidence should have been suppressed because the prosecution did not establish that the handcuffing of the driver was reasonably necessary to the detention; and 2) the prosecution did not establish the driver's subsequent consent to be searched was voluntary.

California Appellate Districts, November 06, 2008
People v. Ramirez, No. F053454
Conviction for receiving aid by misrepresentation and perjury is affirmed over claims of error that: 1) defendant could not be convicted of both misrepresentation and perjury arising from the same activities because the misrepresentation statute is a specific statute precluding prosecution under the general statute defining perjury; and 2) the evidence was insufficient to prove that defendant's misrepresentation arose in the context of a state assistance program, and thus her case was not subject to the general/specific exceptions as applied in People v. Jenkins. .

California Appellate Districts, November 06, 2008
People v. J.L., No. H032639
In a case brought in juvenile court after defendant admitting violating probation, a dispositional order committing minor defendant to the Division of Juvenile Justice (DJJ) is affirmed where: 1) defendant-minor admitted to committing an offense that constituted an assault under both the "deadly weapon" clause and the "force likely" clause of Penal Code section 245(a)(1); 2) the offense constituted an "[a]ssault by...means of force likely to produce great bodily injury," as described in section 707(b)(14); and 3) because the offense was described in section 707(b), and it was "the most recent offense alleged in any petition and admitted or found to be true by the court," the juvenile court was not precluded by section 733(c) from committing the minor to the DJJ. ..

Posted On: November 13, 2008

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

Update from the Lexis Alert Service, Search run morning of November 12, 2008.

1. People v. Washington, 4474, 3958/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8406; 2008 N.Y. App. Div. LEXIS 8242, November 6, 2008, Decided, November 6, 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 A. Corriero, ...

2. People v. Sandoval, 4316, 3699/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8404; 2008 N.Y. App. Div. LEXIS 8238, November 6, 2008, Decided, November 6, 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, ...

3. People v. Taylor, 4486, 2268/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8402; 2008 N.Y. App. Div. LEXIS 8241, November 6, 2008, Decided, November 6, 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. Johnson, 4485, 714/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8417; 2008 N.Y. App. Div. LEXIS 8252, November 6, 2008, Decided, November 6, 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, ...

5. People v. Taylor, 4486, 2268/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8418; 2008 N.Y. App. Div. LEXIS 8247, November 6, 2008, Decided, November 6, 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. ...

6. People v. Grant, 4499, 1561/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8425; 2008 N.Y. App. Div. LEXIS 8263, November 6, 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 (Budd G. Goodman, ...

7. People v. Wash., 4506, 4506A, 6988/06, 4754/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8428; 2008 N.Y. App. Div. LEXIS 8264, November 6, 2008, Decided, November 6, 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 (Renee A. White,

.8. People v. Curtis, 4252, 1766/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7752; 2008 N.Y. App. Div. LEXIS 8269, October 14, 2008, Decided, October 14, 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, ...

9. People v. Garcia, 4256, 73/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7755; 2008 N.Y. App. Div. LEXIS 8287, October 14, 2008, Decided, October 14, 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, ...

10. People v. Cruz, 4249, 4087/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 7749; 2008 N.Y. App. Div. LEXIS 8288, October 14, 2008, Decided, October 14, 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 (Jeffrey M. Atlas, ...

Posted On: November 10, 2008

LLAGNY / AALL Program: Authentic Legal Information in the Digital Age: Is Online Legal Information Trustworthy?

On Thursday November 6, 2008 the Law Library Association of Greater New York (LLAGNY) presented in conjunction with the Electronic Legal Information Access and Citation Committee of the American Association of Law Libraries (AALL) a program at the New York County Lawyers Association in New York City regarding how findings of the 2007 authentication report published by AALL and its ELIAC Committee can be adopted in the State of New York.

The program consisted of a panel of representatives of AALL, its Electronic Legal Information Access and Citation (ELIAC), and two agencies of New York state government, the New York State Reporting Bureau and the Office of General Counsel of the New York State Department of State discussing the AALL Authentication Report, published in 2007 and approaches, strategies, and challenges to adopting its findings to authenticating and otherwise validating in accordance with accepted standards New York State primary source legal information published on the web.

The following are links to the opening remarks of the moderator, David Badertscher, Slides frm the presentation of Mary Alice Baish,and a summary of the program kindly provided by Theodore Pollack, Senior Law Librarian at the New York County Public Access Library, who attended the program, and to the program announcement from LLAGNY. Other links will be added if they become available.

LLAGNYProgram Announcement.

Opening Remarks - David Baderrtscher

Slides from Presentation of Mary Alice Baish

Summary of Program by Theodore Pollack

Posted On: November 7, 2008

ABA Journal Weekly Newsletter

Top Ten Stories:

Executive Branch
Better Question: Who Isn't a Lawyer on Obama's Transition Team?
Nov 5, 2008, 03:10 pm CST

Election headlines this week:
How an Obama Presidency May Benefit Lawyers
Gay Marriage Ban Wins in Calif., Raising Doubts on 18,000 Weddings
Election Law Blogger Responsible for Free Ben & Jerry's
Obama is the Second US President with a Harvard JD
Michigan Chief Justice Loses in 'Stunning Upset'

Law Firms
Treasury Offers $11M 'Bailout Love' to Hughes Hubbard and Squire Sanders
Nov 4, 2008, 06:56 pm CST

Law Firms
Up to 90 Thelen Lawyers are Joining Nixon Peabody
Nov 6, 2008, 11:56 am CST

Law Firms
Trouble Ahead for East Coast Law Firms; One Expert Expects Dissolutions
Nov 3, 2008, 07:05 am CST

Law Firms
Seyfarth Shaw Chairman Tight-Lipped About Merger Talks
Nov 6, 2008, 11:42 am CST

Women in the Law
Sue: A New Magazine for Women Litigators
Nov 3, 2008, 02:42 pm CST

Law Practice Management
Ex-Heller Partner: Women Lawyers Were 'Canaries in the Coal Mine'
Nov 3, 2008, 02:56 pm CST

Legal Ethics
Solos Cautioned Against Tacking 'Associates' to Firm Name
Nov 3, 2008, 01:47 pm CST

Law Practice Management
Will Law Firms' NY Obsession Continue After Wall Street Meltdown?
Nov 5, 2008, 09:26 am CST

Law Firms
Powell Goldstein to Merge with Bryan Cave and Give up its Name
Nov 3, 2008, 06:24 am CST

Posted On: November 3, 2008

2009 Larry S. Hackman Research Residency Program at the New York State Archives


2009 LARRY J. HACKMAN RESEARCH RESIDENCY PROGRAM AT THE NEW YORK STATE ARCHIVES The New York State Archives and the Archives Partnership Trust announce the availability of awards for qualified applicants to conduct research using historical records at the New York State Archives. The Larry J. Hackman Research Residency Program is intended to support advanced research in New York State history, government, or public policy. The program encourages public dissemination of research products. The Hackman Research Residency Program honors the New York State Archivist who headed the dramatic development of the State Archives between 1981 and 1995.

Applicant/Project Eligibility - Applicants must be engaged in an original research project using historical government records held by the New York State Archives. Preference will be given to projects that: (1) have application to enduring public policy issues, particularly in New York State, (2) rely on holdings that have been little used and are not available on microfilm or electronically, and (3) have a high probability of publication or other public dissemination. Research in records held by other institutions is not eligible for support.

Previous residents have included academic and public historians, graduate students, independent researchers and writers, and primary and secondary school teachers. Projects involving alternative uses of the Archives, such as research for multimedia projects, exhibits, documentary films, and historical novels, are welcomed.

Awards - Awards are intended to defray costs of travel, lodging, meals, document reproduction, and other research-related expenses. Award amounts have ranged from $100 to $4,500. Research visits have ranged from a few days to several weeks depending upon the nature of the research. Awards will not supplement salary or honoraria. Eligible costs are indicated on the application form.

Applications Process/Deadline - Application forms are available online or by request:

Archives Partnership Trust, Cultural Education Center, Room 9C49, Albany, New York 12230
Phone: 518-473-7091, Fax: 518-473-7058
E-mail: hackmanres@mail.nysed.gov
Website: http://www.archives.nysed.gov/apt/grants/

Applications must be postmarked by January 15, 2009. Proposals will be reviewed by a panel of scholars and archivists familiar with the State Archives and its holdings. Applicants will be informed of the panel's decision by May 1, 2009. Residencies must be completed by May 31, 2010.

For additional information about program requirements, see the announcement of the 2009 Larry J. Hackman Research Residency Program on the website of the Archives Partnership Trust http://www.nysarchivestrust.org/

Posted On: November 3, 2008

Internet for Lawyers and Lawline Partners to Offer MCLE Content

Relationship Launches With Three Programs Based on Internet For Lawyers’ Popular Live Programs

Albuquerque, NM (November 3, 2008) – Internet For Lawyers, the country’s pre-eminent provider of live continuing legal education presentations helping legal professionals use technology and the Internet more effectively in their practice, has partnered with Lawline.com to deliver some of its most popular seminars online. The relationship begins with three programs: "The Lawyer's Duty to Google: The Cybersleuth's Guide to the Internet," "Search Strategies and the Invisible Web for Lawyers," and "Locating Hard to Find Information Online & On Your Computer." Initially, credit will be available for California, New York, Illinois, Pennsylvania, Tennessee, and Virginia, with other jurisdictions to come. All of the programs will be co-presented by Internet For Lawyers principals Carole Levitt and Mark Rosch.

“Our programs are a natural for attorneys who are already online and looking for continuing legal education material,” said Levitt, Internet For Lawyers’ President. “We like the way Lawline.com presents and distributes its programs. We’re looking forward to working with them.”

"We’re excited to be working with Mark and Carole to get their programs to an even wider audience," said David Schnurman, Lawline.com’s President. “Their programs cover just the kind of topics our audience tells us they’re looking for.”

The cost for each one hour program is $60.00. They are available in streaming video or downloadable MP3 formats. More details about the specific programs are available online at http://netforlawyers.c.topica.com/maamrkrabLC3PcdjHxKbaehqf8/ .

About Internet For Lawyers
Carole Levitt and Mark Rosch are nationally recognized authors and speakers about the Internet. In 1999, they formed Internet For Lawyers (IFL) and have been training professionals in cooperation with law firms, bar associations, corporations, adult education schools, library schools, and library associations nationwide ever since. They are co-authors of "The Cybersleuth’s Guide to the Internet" published by IFL Press, "The Lawyer's Guide to Fact Finding on the Internet" published by the American Bar Association’s (ABA) Law Practice Management Section, and they co-edit the "Internet Fact Finding for Lawyers" newsletter published by ALI-ABA. Information about their publications is available online at books, available at http://netforlawyers.c.topica.com/maamrkrabLC3QcdjHxKbaehqf8/ .

Levitt and Rosch are available to law firms, corporations, and associations for live, in-person seminars to teach the topics covered in their books. For information about live seminars based on their books, including a list of previous clients, visit http://netforlawyers.c.topica.com/maamrkrabLC3RcdjHxKbaehqf8/ .

About Lawline.com
Started in 1999, Lawline.com is one of the leading providers of online continuing legal education in the country. Having expanded from Lawline, a well regarded legal television program in the New York metropolitan area, Lawline.com was one of the first websites to offer online CLE in New York State. Since then, they have expanded to 35 states and currently offer hundreds of hours of CLE programming in all practice areas. More information is available online at http://netforlawyers.c.topica.com/maamrkrabLC3ScdjHxKbaehqf8/ .

###

Press Contact:
Internet For Lawyers
Mark Rosch
310/559-1632

Images are available online:
Internet For Lawyers logo – http://netforlawyers.c.topica.com/maamrkrabLC3NcdjHxKbaehqf8/
Lawline.com logo – http://netforlawyers.c.topica.com/maamrkrabLC3OcdjHxKbaehqf8/

Posted On: November 3, 2008

The Webby Top Political Web Moments

From The 411, November 2008 (The Newsletter of the Webby Awards).

This year, we have seen an even greater reliance on the Web for active involvement in the political process. With this in mind, the Webby Awards has created a special Top 10 list of political Web moments that have influenced this arena. Read about them and get engaged in this year's election, by voting!

Also, check out Fox News' coverage of our 10 most influential Web moments in politics.

Posted On: November 3, 2008

Findlaw Case Summaries: Constitutional Law October 27-31, 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 29, 2008
Nader v. Blackwell, No. 07-4350
In a 42 U.S.C. section 1983 suit brought by Ralph Nader against Ohio's former Secretary of State for violating his First Amendment rights in applying a state law, which required that petition circulators reside and be registered to vote in Ohio, to Nader's nominating petitions, dismissal of the suit is affirmed where: 1) contrary to the ruling below, Nader had standing to bring the suit; 2) the voter-registration restriction and the residency restriction contained in Ohio Rev. Code section 3505.06 are both unconstitutional in violation of the First Amendment; but 3) because the violations were not clearly established in 2004, the Secretary was entitled to qualified immunity. Petition circulation activity constitutes core political speech, and any regulation of that speech is subject to exacting scrutiny.

U.S. 8th Circuit Court of Appeals, October 31, 2008
Phelps-Roper v. Nixon, No. 07-1295
In an action challenging a Missouri statute which criminalizes picketing in front of a funeral location or procession, denial of a preliminary injunction while the statute's constitutionality is reviewed is reversed where, incorporating the modified standard articulated in Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008): 1) plaintiff was likely to prove any interest the state has in protecting funeral mourners from unwanted speech was outweighed by the First Amendment right to free speech; 2) there was enough likelihood plaintiff will be able to prove the statute is not narrowly tailored or is facially overbroad; and 3) she was likely to prevail in proving the statute fails to afford open, ample and adequate alternative channels for the dissemination of her particular message that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. (Opinion on rehearing)

U.S. 11th Circuit Court of Appeals, October 27, 2008
Ford v. Hall, No. 0713675
Denial of habeas relief to death row inmate is affirmed over claims that: 1) the district court erred in finding the State did not violate criminal-petitioner's constitutional rights by its failure to disclose an alleged deal with the State's key witness; 2) the district court erred in determining that the state court's resolution of criminal-petitioner's claim of ineffective assistance was reasonable; and 3) the district court erred in determining that the state court's resolution of criminal-petitioner's Fifth Amendment claim was reasonable


U.S. 11th Circuit Court of Appeals, October 28, 2008
Pelphrey v. Cobb County, No. 0713611
In a case brought by seven county taxpayers to enjoin county commissions from opening their meetings with a prayer offered by volunteer clergy or other members of the community representing different faiths, decision that the prayers do not violate the Establishment Clause is affirmed where: 1) there was no clear error in the district court's decisions that applying the Marsh v. Chambers standard, the practice of the county commission had not been exploitive and the practice of one of the commissions had been exploitive during 2003 and 2004; and 2) the court refused "to embark on a sensitive evaluation or to parse the content of a particular prayer".

U.S. D.C. Circuit Court of Appeals, October 31, 2008
In Re Cheney, No. 08-5412
In a suit seeking declaratory relief requiring the office of Vice President Richard Cheney (OVP) to preserve certain records under the Presidential Records Act, defendant's petition for mandamus relief from a district court order allowing the depositions of two OVP employees is denied where: 1) the district court was not required to consider threshold grounds for dismissal before considering plaintiffs' discovery request; and 2) the relief sought was appropriately limited to following up on facts defendant had itself put into evidence; but 3) the deposition of Cheney's chief of staff would constitute an unwarranted impairment of the functioning of OVP, and substitution of a different OVP employee was warranted.

New York Court of Appeals, October 28, 2008
Boudreaux v. State of Louisiana Dep't of Transp., No. 182
In a suit to satisfy a money judgment in a negligence case by reaching New York assets owned by the State of Louisiana, denial of plaintiffs' request to amend filing of the Louisiana judgment is affirmed where neither the Full Faith and Credit clause nor the doctrine of comity required New York courts to enforce a money judgment against Louisiana when such judgment was unenforceable in Louisiana due to constitutional and statutory limitations.

Posted On: November 3, 2008

Findlaw Case Summaries: Criminal Law and Procedure October 27-31, 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 27, 2008
US v. Arroyo, No. 072423
Sentence of nine months on each of the two counts for drug conspiracy is affirmed where: 1) the district judge's two conspiracies determination is colorable; and 2) defendant's summary argument against it is satisfied by a summary disposition, there being no conceivable threat of injustice.

U.S. 1st Circuit Court of Appeals, October 30, 2008
US v. Polk, No. 072425
Sentence of fifteen years and eight months incarceration for attempting to produce child pornography is affirmed where: 1) there was no gross disproportionality between the fifteen-year mandatory minimum term of imprisonment established by 18 U.S.C. section 2251(e) and the offense of which the defendant was convicted; and 2) the defendant's Eighth Amendment challenge failed.

U.S. 1st Circuit Court of Appeals, October 30, 2008
US v. Levesque, No. 081344
A forfeiture order for $3,068,000 for conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, is vacated and remanded where: 1) 21 U.S.C. section 853 authorizes money judgments; 2) the case is remanded to give district court the opportunity to consider whether and to what extent the ruling in the recent Supreme Court case, US v. Santos, 128 S. Ct. 2020 (2008), affects the forfeiture determination in this case; and 3) the case is remanded for lower court to consider whether the imposition of the forfeiture violated the Excessive Fines Clause of the Eighth Amendment in light of recent pertinent case law.

U.S. 2nd Circuit Court of Appeals, October 28, 2008
US v. Zedner, No. 070149
Appeal from a conviction for attempted bank fraud is dismissed with prejudice over claims of error that: 1) in December 2006, jurisdiction of defendant's case was in the present court rather than in the district court and therefore his 2006 conviction was a nullity; and 2) that if the district court had jurisdiction, it should have dismissed the original indictment with prejudice rather than without prejudice, pursuant to the Speedy Trial Act, 18 U.S.C. section 3161. .

U.S. 5th Circuit Court of Appeals, October 27, 2008
US v. Garcia-Ruiz, No. 07-51269
Conviction for reentry into the U.S. as a deported alien is affirmed over an objection that police lacked reasonable suspicion to stop and detain defendant, where defendant had mooted the issue by stipulating to facts establishing all the elements of the charged crime. ..

U.S. 5th Circuit Court of Appeals, October 6, 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. (Revised opinion)

U.S. 5th Circuit Court of Appeals, October 28, 2008
US v. Woods, No. 07-51491
In an appeal of a sentence for distributing crack cocaine, imposition of a supervised-release condition forbidding defendant from residing with any person to whom she was not ceremonially married or related by blood is vacated where the condition was overbroad and involved a greater deprivation of liberty than was reasonably necessary to achieve sentencing purposes.

U.S. 5th Circuit Court of Appeals, October 08, 2008
US v. Hope, No. 07-60769
Conviction for one of two counts of being a felon in possession of a firearm is vacated and case remanded for resentencing where defendant's 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. (Revised opinion)

U.S. 6th Circuit Court of Appeals, October 28, 2008
US v. Kuehne, No. 06-3668
A conviction for drug- and firearm-related offenses is affirmed over claims of error regarding: 1) allegedly improper venue; 2) the definition of "use" under 18 U.S.C. section 924(c)(1); 3) jury instruction regarding proof necessary for conviction under section 924(c); 4) constructive amendment or variance of the indictment; 5) prosecutorial misconduct; 6) a motion for acquittal; 7) alleged inaccuracies in the transcript of proceedings; 8) propriety of police investigation tactics; 9) the propriety of findings regarding a motion to suppress evidence; 10) submission of sentencing facts to the jury; 11) the sufficiency of the indictment; 12) the sufficiency of the evidence; 13) Brady violation; and 14) jury instruction regarding "Conspiracy" and "Aiding and Abetting".

U.S. 6th Circuit Court of Appeals, October 28, 2008
US v. Osborne, No. 07-5572
In a criminal case involving a modeling agent who defrauded Fruit of the Loom with the help of a Fruit of the Loom employee, his conviction and below-Guidelines sentence for conspiracy to commit mail fraud are affirmed over claims that: 1) there was a variance between the indictment, which charged one conspiracy, and the proof at trial, which defendant asserted proved two separate conspiracies, only one of which involved him; and 2) his sentence was imposed in violation of Apprendi and Booker.

U.S. 7th Circuit Court of Appeals, October 27, 2008
US v. Whitaker, No. 08-1259
Conviction for being a felon in possession of a firearm is affirmed over objection that the gun should have been suppressed as the result of a vehicle search for which police lacked reasonable suspicion.

U.S. 7th Circuit Court of Appeals, October 27, 2008
US v. Brandt, No. 08-1215
In a prosecution for making false statements to federal agents in connection with the sale of an automatic rifle, denials of motion for acquittal and of a requested instruction based on the "exculpatory no" doctrine are affirmed where: 1) there was sufficient evidence to support the conviction; and 2) the "exculpatory no" doctrine was not a defense to criminal liability under 18 U.S.C. section 1001.

U.S. 7th Circuit Court of Appeals, October 27, 2008
US v. Miller, No. 08-1069, 08-1089
Conviction of one defendant for being a felon in possession of a firearm, and conviction and sentence of a second defendant for aiding and abetting that possession, are affirmed where: 1) there was sufficient evidence to support the convictions; and 2) the second defendant was not eligible for a sentence reduction as a mere collector of guns.

U.S. 7th Circuit Court of Appeals, October 27, 2008
US v. Castaldi, No. 07-3452
Conviction and sentence for mail fraud and embezzlement from an employee benefits plan are affirmed over objections regarding: 1) sufficiency of the indictment; 2) admissibility of a mug shot of defendant; 3) exclusion of certain testimony as hearsay; 4) sufficiency of the evidence; 5) consideration of the relevant sentencing factors; and 6) evidence of defendant's intent to embezzle.

U.S. 7th Circuit Court of Appeals, October 27, 2008
US v. Franklin, No. 06-4109
Conviction and sentence for possession of cocaine with intent to distribute and carrying a firearm during a drug-trafficking crime are affirmed over objections regarding: 1) sufficiency of the indictment; 2) voluntariness of defendant's guilty plea; 3) denial of a motion to suppress evidence discovered as the result of a traffic stop; 4) trial court's failure to appoint separate counsel to represent defendant at two hearings in which his own counsel moved to withdraw; 5) whether the police search of defendant's car exceeded the scope of probable cause; 6) constitutionality of mandatory-minimum sentences; and 7) whether prior convictions used in sentencing were required to be proven to a jury.

U.S. 7th Circuit Court of Appeals, October 29, 2008
US v. Jackson, No. 07-2421
Sentence for being a felon in possession of a firearm is affirmed over objections regarding: 1) failure to adhere to established policy in imposing an above-guidelines sentence; 2) the assessment of defendant's criminal history; 3) the weight given to unpaid traffic fines; and 4) failure to fully consider defendant's youth and borderline intellectual functioning.

U.S. 8th Circuit Court of Appeals, October 28, 2008
US v. Webb, No. 08-1331, 08-1332
Defendants' sentences for conspiracy to distribute cocaine base are affirmed over their claim that the district court erred at sentencing by applying a preponderance of the evidence standard to determine drug quantity in excess of that found by the jury beyond a reasonable doubt. .

U.S. 8th Circuit Court of Appeals, October 29, 2008
US v. Lee, No. 06-3438
A sentence for various counts of bank fraud and aggravated identity theft is affirmed where: 1) the district court did not abuse its discretion in running several of the aggravated identity theft counts consecutively to each other; and 2) all of defendant's other issues on appeal were barred by his plea agreement or outside the scope of a remand order, and thus were barred.

U.S. 8th Circuit Court of Appeals, October 30, 2008
US v. Pando, No. 08-1317
A sentence for a drug conspiracy offense is affirmed where, contrary to defendant's claim, the district court did not err in assessing a criminal history point under U.S.S.G. section 4A1.2 for a prior Colorado conviction for driving while ability impaired (DWAI).

U.S. 8th Circuit Court of Appeals, October 31, 2008
Phelps-Roper v. Nixon, No. 07-1295
In an action challenging a Missouri statute which criminalizes picketing in front of a funeral location or procession, denial of a preliminary injunction while the statute's constitutionality is reviewed is reversed where, incorporating the modified standard articulated in Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008): 1) plaintiff was likely to prove any interest the state has in protecting funeral mourners from unwanted speech was outweighed by the First Amendment right to free speech; 2) there was enough likelihood plaintiff will be able to prove the statute is not narrowly tailored or is facially overbroad; and 3) she was likely to prevail in proving the statute fails to afford open, ample and adequate alternative channels for the dissemination of her particular message that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. (Opinion on rehearing)

U.S. 9th Circuit Court of Appeals, October 28, 2008
US v. Snellenberger, No. 06-50169
In a case interpreting the types of documents upon which a court can rely in determining sentencing enhancement under the modified categorical approach, an enhanced sentence is affirmed where: 1) to establish that defendant's prior burglary conviction was for burgling a dwelling, and thus a crime of violence, the district court relied on the state court clerk's minute order; and 2) the list of documents in Shepard v. US, 544 U.S. 13 (2005) simply illustrates the documents upon which a court can rely under the modified categorical approach, and does not exclude reliance on a court clerk's minute order.

U.S. 10th Circuit Court of Appeals, October 31, 2008
US v. Harper, No. 08-3215
A district court's dismissal of an unauthorized 28 U.S.C. section 2255 motion is a "final order in a proceeding under section 2255" such that section 2253 requires the petitioner to obtain a COA before he or she may appeal. Dismissal of defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255 is affirmed where: 1) a certificate of appealability (COA) is a prerequisite to pursuing such an appeal; and 2) defendant failed to make the showing required for the issuance of a COA.

U.S. 11th Circuit Court of Appeals, October 27, 2008
Ford v. Hall, No. 0713675
Denial of habeas relief to death row inmate is affirmed over claims that: 1) the district court erred in finding the State did not violate criminal-petitioner's constitutional rights by its failure to disclose an alleged deal with the State's key witness; 2) the district court erred in determining that the state court's resolution of criminal-petitioner's claim of ineffective assistance was reasonable; and 3) the district court erred in determining that the state court's resolution of criminal-petitioner's Fifth Amendment claim was reasonable.

U.S. 11th Circuit Court of Appeals, October 30, 2008
US v. Anton, No. 0713124
Conviction and sentence for possession of a firearm by a convicted felon are affirmed in part and vacated in part where the district court: 1) correctly adjudicated defendant's guilt in its 1989 order, defendant's nolo contendre plea was a conviction under Florida law; 2) correctly concluded that defendant's status as a convicted felon involved a question of law, rather than a question of fact for the jury; 3) did not engage in improper burden shifting because, had the case proceeded to trial, the government would still have been required to present evidence establishing defendant's conviction; 4) reasonably determined that the judge issuing the warrant did not abandon his judicial role; 5) did not err in denying defendant's motion to suppress; but 6) committed clear error by improperly calculating defendant's sentencing range based upon unsupported conclusions.

U.S. 11th Circuit Court of Appeals, October 31, 2008
US v. Garey, No. 0514631
Sentence of 360-months for 27 felony counts arising from unsuccessful attempts to extort money by threatening to bomb various buildings is affirmed over claims of error that the sentence was unreasonable and that district court erred when it: 1) found defendant knowingly and voluntarily consented to represent himself at trial; 2) enhanced defendant's sentence for terrorism, pursuant to U.S.S.G. section 3A1.4; and 3) based the enhancement on its own factual findings.

Supreme Court of California, October 27, 2008
People v. Concepcion, No. S146288
In the context of Penal Code section 1043(b)(2), which states that a noncapital felony trial may continue in a defendant's absence, if the defendant was present when trial began, then later voluntarily absents himself, the California Supreme Court rules that an escapee's voluntary absence includes the time reasonably required to return him to court after apprehension.

New York Court of Appeals, October 28, 2008
People v. Jones, No. 160
Denial of defendant's Batson challenge is affirmed where defendant failed to establish a prima facie case of discrimination in the peremptory challenge of an African-American juror.

Supreme Court of Florida, October 30, 2008
In Re: Standard Jury Instructions in Criminal Cases - Report No. 2007-08, No. SC07-1841
Upon the recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court adopts amendments to existing criminal jury instructions and authorizes new instructions.

Supreme Court of Florida, October 30, 2008
In Re: Standard Jury Instructions in Criminal Cases - Report No. 2008-04 , No. SC08-699
Upon the recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court adopts amendments to existing criminal jury instructions and eliminates two current instructions.

California Appellate Districts, October 27, 2008
People v. Sweig, No. C057241
In a case in which police officers detained mentally-disabled defendant outside of his residence and then entered his residence to seize a rifle they observed in his possession prior to the detention, dismissal of case is affirmed where: 1) seizure of the weapon was a product of a warrantless entry of defendant's residence in violation of the Fourth Amendment; and 2) the circumstances in this case did not give rise to an exception to the warrant requirement of the Fourth Amendment.

California Appellate Districts, October 27, 2008
People v. Bergin, No. B200999
In a challenge to an order of restitution imposed following defendant's plea of nolo contendere to charge of driving with a blood alochol level of .08 percent or more and causing injury to another person, restitution order is affirmed over prosecution's claim that the restitution amount should have been the amount billed by victim's medical providers rather than the amount the medical providers accepted from victim's insurer as full payment for their services, plus the deductible paid by victim.

California Appellate Districts, October 27, 2008
People v. G.V., No. E044318
Probation order requiring both payment of restitution and community service hours following admission of one count of vandalism is affirmed over claim of error that the juvenile court could impose either restitution or community service hours, but not both.

California Appellate Districts, October 29, 2008
People v. Newby, No. C057444
Conviction and sentence for aggravated mayhem, infliction of corporal injury on a cohabitant, battery, criminal threats, and grand theft are affirmed over claims that: 1) the trial court prejudicially erred in instructing the jury, pursuant to CALCRIM No. 800, that a "disfiguring injury may be permanent even if it can be repaired by medical procedures"; and 2) consecutive sentencing on a grand theft count contravened defendant's Sixth Amendment rights under Apprendi and its progeny.

Texas Court of Criminal Appeals, October 29, 2008
Taylor v. Texas, No. PD-1370-07
In a prosecution for aggravated sexual assault of a child, conviction is affirmed where: 1) a child-victim's statement identifying her assailant to a mental-health therapist may be admissible under an exception to the hearsay rule; 2) in this case, the prosecution did not carry its burden to demonstrate that the statement in question should be excepted from the rule; but 3) the error in admitting the testimony was harmless.

Texas Court of Criminal Appeals, October 29, 2008
Fischer v. Texas, No. PD-1613-07
Reversal of a conviction for murder is reversed where evidence was properly admitted that defendant was one of several people who could have stolen the murder weapon from the store where he worked just before the crime was, committed, and the state proved beyond a reasonable doubt that defendant did steal the weapon.

Texas Court of Criminal Appeals, October 29, 2008
Pecina v. Texas, No. PD–1159–07
In a murder case, denial of a motion to suppress statements made to police by defendant is reversed where defendant invoked his Sixth Amendment right to counsel when asked if he wanted a court-appointed attorney, and his subsequent agreement to speak with police, did not indicate that he had initiated the contact.

Texas Court of Criminal Appeals, October 29, 2008
Texas v. Iduarte, No. PD-1341-07
Reversal of suppression of evidence of an alleged aggravated assault on a peace officer is affirmed where, whether or not police had probable cause to enter defendant's apartment in the first place, evidence of the subsequent assault was admissible.

Texas Court of Criminal Appeals, October 29, 2008
In Re Johnson v. Tenth Judicial Dist. Court of Appeals at Waco, No. AP-75,898
In a mandamus proceeding challenging an appeals court order requiring a judge to vacate his order mandating withdrawal of funds from an inmate's account to pay court costs, petition for relief is dismissed where the proceeding did not involve a "criminal law matter" and the court therefore lacked mandamus jurisdiction.

Texas Court of Criminal Appeals, October 29, 2008
Segundo v. Texas, No. AP-75,604
In a capital murder case, conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) admission of evidence of another rape-murder committed by defendant; 2) denial of a request to instruct the jury on lesser-included offenses; 3) jury selection issues; 4) admission of parole revocation documents; 5) instructions on extraneous acts of misconduct during the penalty phase; 6) the warrantless seizure of defendant's blood sample; 7) the retention of defendant's DNA in a databank even after the expiration of his parole; 8) the exclusion of "alternative perpetrator" evidence; 9) the constitutionality of the death-penalty statute; 10) the charge to the jury in the punishment phase; and 11) the constitutionality of the lethal-injection protocol..

Texas Court of Criminal Appeals, October 29, 2008
Luna v. Texas, No. AP-75.358
In a capital murder case, conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) the lack of a bifurcated proceeding for guilt and sentencing; 2) defendant's competency and the validity of his guilty plea; 3) the unanimity of the jury verdict; 4) the validity of a warrantless search of an apartment where defendant had been staying; 5) the admission of certain victim-impact testimony; 6) the validity of an in-court witness identification; 7) the court's refusal to allow defense counsel to "close the arguments on mitigation"; 8) denial of defendant's motion to preclude the death penalty as a sentencing option; 9) the constitutionality of the sentencing procedure; and 10) the constitutionality of the court's charge to the jury on punishment.

Texas Court of Criminal Appeals, October 29, 2008
Reed v. Texas, No. PD-366-07
Reversal of a conviction for deadly conduct is affirmed where defendant, being inside a habitation, could not have discharged a weapon "at or in the direction of" that habitation. .

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Posted On: November 3, 2008

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

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BANKRUPTCY LAW, GOVERNMENT LAW

In Re: U.S. Wireless Data, Inc., No. 063449

Order of U.S. Bankruptcy Court expunging an "unsecured claim" filed by appellant on the ground that it sought additional compensation for a previously resolved "cure claim" is affirmed where: 1) appellant's argument that the claim was cured without proper notice of consequences was without merit; 2) appellant's contention that, having failed to raise a timely challenge to the cure amount, it could pursue additional relief by reasserting its claim as a general unsecured obligation of the debtor was without merit; and 3) the "best interests of creditors" test, 11 U.S.C. section 1129(a)(7) afforded appellant no relief in this case.


CIVIL PROCEDURE, CLASS ACTIONS, COMMUNICATIONS LAW, GOVERNMENT LAW

Bonime v. Avaya, Inc., No. 071136

In a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA), dismissal of the complaint is affirmed where: 1) because the TCPA does not specifically authorize recovery of statutory damages in a class action, state courts have held that C.P.L.R. 901(b) bars class actions for statutory damages under the TCPA; and 2) federal courts should apply C.P.L.R. 16 901(b) to putative New York class actions brought for alleged TCPA violations

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Posted On: November 3, 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 November 4, 2008.

1. People v. Guarino, 4430, 4430A, 4430B, 3320/05, 3961/06, 4168/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8246; 2008 N.Y. App. Div. LEXIS 8039, October 30, 2008, Decided, October 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 ...
Judgments, Supreme Court, New York County (Arlene Goldberg, J.), ...

2. People v. Reddick, 4445, 6323/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8259; 2008 N.Y. App. Div. LEXIS 8044, October 30, 2008, Decided, October 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 (James A. Yates, ...

3. People v. Bacote, 4441, 866/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8255; 2008 N.Y. App. Div. LEXIS 8043, October 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 (Gregory Carro, J.), ...

4. People v. Stevenson, 4450, 5367/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8263; 2008 N.Y. App. Div. LEXIS 8063, October 30, 2008, Decided, October 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 (Bruce Allen, J.), ...

5. People v. Harris, 4452, 6527/05, 4453, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8269; 2008 N.Y. App. Div. LEXIS 8064, October 30, 2008, Decided, October 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 ...
... Defendant-Appellant. The People of the State ...
Judgments, Supreme Court, New York County (Richard D. Carruthers,