Update from the Lexis Alert Service,
January 12 ,15, 2009
1. People v. Kelley, 4996, 6077/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 49; 2009 N.Y. App. Div. LEXIS 67, January 8, 2009, Decided, January 8, 2009, 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.
Update from the Lexis Alert Service,
January 8, 2009
1. People v. Molloy, 4975, 2789/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 7; 2009 N.Y. App. Div. LEXIS 14, January 6, 2009, Decided, January 6, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, …
2. People v. Lubbe, 4963, 7131/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 35; 2009 N.Y. App. Div. LEXIS 17, January 6, 2009, Decided, January 6, 2009, 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, …
3. People v. Anonymous, 4959 7146/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 31; 2009 N.Y. App. Div. LEXIS 32, January 6, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Rena K. Uviller, …
4. People v. Goldstein, 4976, 527/99, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 8; 2009 N.Y. App. Div. LEXIS 6, January 6, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Carol Berkman, J.), …
5. People v. Wallace, 4948, 1922/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 23; 2009 N.Y. App. Div. LEXIS 35, January 6, 2009, Decided, January 6, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (A. Kirke Bartley, …
6. People v. Olmeda, 4970, 1869/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2; 2009 N.Y. App. Div. LEXIS 29, January 6, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (James A. Yates, …
7. People v. Reddick, 4618, 2880/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9169; 56 A.D.3d 344; 868 N.Y.S.2d 28; 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. …
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Update from the Lexis Alert Service,
January 7, 2009
1. People v. Howell, 4652, 6053N/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9264; 56 A.D.3d 373; 867 N.Y.S.2d 331; 2008 N.Y. App. Div. LEXIS 8809, November 25, 2008, Decided, November 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Edwin Torres, J.), …
2. People v. Lynah, 4656, 1417/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9268; 56 A.D.3d 375; 2008 N.Y. App. Div. LEXIS 8791, November 25, 2008, Decided, November 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Gregory Carro, J.), …
3. People v. Vasquez, 4660, 1990/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9272; 56 A.D.3d 378; 2008 N.Y. App. Div. LEXIS 8804, November 25, 2008, Decided, November 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Carol Berkman, J. …
4. People v. Kurell B., 4661, 4662, 2873/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9273; 56 A.D.3d 379; 2008 N.Y. App. Div. LEXIS 8801, November 25, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Gregory Carro, J.), …
5. People v. Ross, 4664, 1285/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9275; 56 A.D.3d 380; 2008 N.Y. App. Div. LEXIS 8816, November 25, 2008, Decided, November 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Michael J. Obus, …
6. People v. Green, 4588, 5885/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9278; 56 A.D.3d 390; 2008 N.Y. App. Div. LEXIS 8808, November 25, 2008, Decided, November 25, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Richard D. Carruthers, …
7. People v. Cardoza, 4677, 5504/97, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 9285; 56 A.D.3d 396; 2008 N.Y. App. Div. LEXIS 8803, November 25, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Bonnie G. Wittner, …
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Update from the Lexis Alert Service,
January 1, 2009
1. People v. Vallevaleix, 4921, 511/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 10203; 2008 N.Y. App. Div. LEXIS 9955, December 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.
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January 5-8, 2009:
ADMINISTRATIVE LAW, GOVERNMENT LAW, MEDIA LAW, MILITARY LAW
Associated Press v. US Dep’t of Def., No. 06-5352
In a Freedom of Information Act (FOIA) action brought by the Associated Press against the Department of Defense, judgment mainly for AP ordering the DOD’s disclosure of, inter alia, Guantanamo detainee identifying information contained in records of DOD’s investigations of detainee abuse at Guantanamo is reversed where: 1) detainees and their family members have a measurable privacy interest in the nondisclosure of their identifying information in such records; 2) the AP failed to show how the public interest would be further served by disclosure of their identities; and 3) thus, the identifying information is exempt from disclosure under the FOIA privacy exemptions.
ATTORNEY’S FEES, PROFESSIONAL MALPRACTICE
Chen v. Chen Qualified Settlement Fund, No. 06-1302, 06-3810
In a case arising from a medical malpractice action which had been settled, denial of attorney’s application for attorneys’ fees is affirmed where: 1) the district court did not abuse its discretion in denying the application based on a finding that attorney engaged in misconduct with respect to the fees and expenses in the case and that he failed to represent his client adequately with respect to the post-settlement proceedings in the district court; and 2) the record did not support his claim of bias
CRIMINAL LAW & PROCEDURE, EVIDENCE, SECURITIES LAW, WHITE COLLAR CRIME
US v. Kelley, No. 06-5536
A conviction for securities fraud and wire fraud is affirmed where: 1) although the use of bogus account statements to lull defrauded investors is not in and of itself sufficient to establish a securities law violation, the use of such statements is relevant as evidence to prove, inter alia, a defendant’s intent to defraud and the extent of the scheme employed; and 2) thus, there was no error in admitting such evidence in this case.
ATTORNEY’S FEES, BANKRUPTCY LAW, CIVIL PROCEDURE, COMMERCIAL LAW, CORPORATION & ENTERPRISE LAW
In Re: Smart World Techs., LLC, No. 08-1721
In the bankruptcy context, pre-approval of a fee agreement under 11 U.S.C. section 328(a) depends on the totality of the circumstances, including whether the professional’s application, or the court’s order, referenced section 328(a), and whether the court evaluated the propriety of the fee arrangement before granting final, and not merely preliminary, approval. In the circumstances of this case, the circuit court rules that: 1) the bankruptcy court’s Retention Order was a pre-approval within the meaning of 11 U.S.C. section 328(a); and 2) no subsequent developments warranted modifying the terms of appellee-firm’s retention. ..
CIVIL PROCEDURE, COMMERCIAL LAW, CONTRACTS, INTERNATIONAL LAW
CP Solutions PTE, Ltd. v. Gen. Elec. Co., No. 07-3444
In a commercial contract dispute, dismissal of plaintiff’s complaint for lack of subject matter jurisdiction is reversed and remanded where: 1) contrary to the district court’s ruling, one of the defendants was not an indispensable party; and 2) thus, that defendant could be dropped as a party so as to preserve diversity jurisdiction.
CRIMINAL LAW & PROCEDURE, SENTENCING
US v. Uddin, No. 07-3121
A sentence for food stamp fraud and theft of public property is affirmed where, despite the absence of data as to the exact amount of loss, the district court’s loss calculation was a reasonable estimate of the loss caused by the defendant, and its forfeiture calculation was not plainly erroneous.
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Update from the Lexis Alert Service,
1. People v. Riley, 4865, 4795/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 10035; 2008 N.Y. App. Div. LEXIS 9794, December 23, 2008, Decided, December 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Edward J. McLaughlin, …
2. People v. Merzianu, 4876, 5955/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 10042; 2008 N.Y. App. Div. LEXIS 9784, December 23, 2008, Decided, December 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Robert Stolz, J.), …
3. People v. Williams, 4897, 2656/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 10056; 2008 N.Y. App. Div. LEXIS 9780, December 23, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (James A. Yates, …
4. People v. Deleon, 4891, 6622/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 10052; 2008 N.Y. App. Div. LEXIS 9773, December 23, 2008, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Laura A. Ward, …
5. People v. Sears, 4896, 3043/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 10055; 2008 N.Y. App. Div. LEXIS 9778, December 23, 2008, Decided, December 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (James A. Yates, …
6. People v. Santiago, 4894, 456/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2008 NY Slip Op 10054; 2008 N.Y. App. Div. LEXIS 9783, December 23, 2008, Decided, December 23, 2008, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Laura A. Ward, …
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December 29, 2008 – January 3, 2009
U.S. 1st Circuit Court of Appeals, December 31, 2008 US v. Andrade, No. 081175 In a prosecution for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. section 922(g)(1), denial of a motion to suppress the firearms and ammunition seized by police officer is affirmed where police officer’s actions were reasonable under the totality of circumstances.
U.S. 2nd Circuit Court of Appeals, December 31, 2008 US v. Spinelli, No. 99-1344, 99-1394 Conviction for conspiracy to commit murder and assault with a dangerous weapon, both for the purpose of increasing and maintaining a position in a racketeering enterprise, and related offenses are affirmed. Although the prosecutor erred by vouching to the jury that the government’s cooperating accomplices had never perjured themselves or falsely implicated anybody in a crime, her improper remarks did not justify disturbing the verdict.
U.S. 4th Circuit Court of Appeals, December 30, 2008 US v. Dews, No. 086458 In prosecutions for distribution and possession with intent to distribute cocaine base and money laundering, denial of defendants’ motions for reductions of sentence is reversed and remanded where: 1) defendants agreed to plead guilty if the district court would sentence them to a guidelines term of imprisonment of 168 months, and the district court did so; and 2) defendants did not agree that they would not seek relief under section 3582(c)(2) in the event the Sentencing Commission retroactively amended a relevant guideline.
U.S. 5th Circuit Court of Appeals, December 29, 2008 US v. Elashyi, No. 06-10176 Convictions of illegally exporting computer equipment, money laundering, dealing in property of a designated terrorist, and related offenses are affirmed for 4 of 5 co-defendants over their various unmeritorious challenges, including insufficiency of the evidence, improper admission of hearsay evidence, and improper jury instructions. One defendant’s conviction was reversed, however, on certain of the charges where the government’s prosecution of him breached an unambiguous plea agreement stemming from earlier charges involving the very same facts and circumstances.
U.S. 5th Circuit Court of Appeals, December 23, 2008 US v. Percel, No. 07-20236 Convictions arising from a conspiracy to possess and distribute five kilograms or more of cocaine are affirmed. Judge did not commit plain error by omitting the word “not” when reciting the requested “no-adverse-influence” instruction, given that the written jury instructions contained the correct wording. Testimony made by two witnesses pursuant to a plea agreement was properly admitted and was sufficient for the jury to convict, where the jury was properly instructed to weigh the credibility of these witnesses with great care. (Revised opinion) .
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December 29, 2008 – January 3, 2009
U.S. 9th Circuit Court of Appeals, December 30, 2008 Gonzalez v. Duncan, No. 06-56523 A sentence of 28 years to life imprisonment under California’s “Three Strikes” law violates the Eighth Amendment where: 1) the offense was Petitioner’s failure to update his annual sex offender registration within five working days of his birthday; and 2) he was living at his registered address throughout the relevant time period. Habeas relief is warranted because the state court’s application of the gross disproportionality principle was objectively unreasonable.
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Week of December 15-19, 2008.
U.S. 2nd Circuit Court of Appeals, December 15, 2008 Doe, Inc. v. Mukasey, No. 074943 In litigation concerning First Amendment challenges to the constitutionality of statutes governing the issuance and judicial review of National Security Letters (NSLs) which request records from providers of wire or electronic communication services, decision finding 18 U.S.C. subsections 2709(c) and 3511(b) unconstitutional and enjoining certain actions by FBI officials is affirmed in part, reversed in part, and remanded where: 1) the statutes are construed to avoid some constitutional challenges; 2) subsections 2709(c) and 3511(b) were unconstitutional to the extent that they imposed a nondisclosure requirement on NSL recipients without placing on the Government the burden of initiating judicial review of such a requirement; 3) subsections 3511(b)(2) and (b)(3) were unconstitutional to the extent that a governmental official’s certification that disclosure may endanger the national security of the U.S. or interfere with diplomatic relations was treated as conclusive; and 4! ) district court’s injunction is modified by limiting it to enjoining FBI officials from enforcing the nondisclosure requirement of section 2709(c) in the absence of Government-initiated judicial review.
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Week of December 15-19, 2008.
U.S. 1st Circuit Court of Appeals, December 17, 2008 US v. Jones, No. 07-2052 Sentence is affirmed where defendant pled guilty to charges stemming from her role in a bank fraud conspiracy. Loss amount was properly calculated to include dollar amounts that she had not yet withdrawn, and her base offense level was properly increased where the physical act of popping small air bubbles on the laminated face of her fake ID constituted production of a counterfeit access device.
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