Court Decisions

November 3, 2008

Findlaw Case Summaries: Criminal Law and Procedure October 27-31, 2008

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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.

November 3, 2008

New York Appellate Division Criminal Cases Originating from the New York Supreme Court NY County. November 4, 2008.

by David Badertscher

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 …

October 30, 2008

New York Appellate Division Criminal Cases Originating from the New York Supreme Court NY County. October 30, 2008.

by David Badertscher

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

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

The People of the State …

October 27, 2008

Findlaw Summaries: Constitutional Law October 20-24, 2008

by David Badertscher

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

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

October 27, 2008

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

by David Badertscher

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

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

October 27, 2008

New York Appellate Criminal Cases Originating from the New York Supreme Court NY County. October 27, 2008.

by David Badertscher

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

1. People v. Delgado, 4361, 2279/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 8004; 2008 N.Y. App. Div. LEXIS 7829, October 23, 2008, Decided, October 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

The People of the State …

October 24, 2008

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

by David Badertscher

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

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

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

October 24, 2008

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

by David Badertscher

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

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

October 24, 2008

New York Appellate Division Criminal Cases Originating from the New York Supreme Court NY County. October 23-24, 2008.

by David Badertscher

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

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

The People of the State …

October 21, 2008

Findlaw Case Summaries: New York State Court of Appeals. 10/21/2008

by David Badertscher

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

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