Court Decisions

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 …

November 17, 2008

Findlaw Case Law Summaries: Constitutional Law. November 10 – 14, 2008.

by David Badertscher

November 10 – 14, 2008.

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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.

November 17, 2008

Findlaw Case Summaries: Criminal Law and Procedure 3

by David Badertscher

November 10 – 14, 2008.

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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

November 13, 2008

Findlaw Case Summaries: Second Circuit U.S. Court of Appeals 1

by David Badertscher

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ADMIRALTY, INTERNATIONAL TRADE, TRANSPORTATION

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

November 13, 2008

Findlaw Case Summaries: Constitutional Law, November 3-7, 2008

by David Badertscher

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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.

November 13, 2008

Findlaw Case Summaries: Criminal Law and Procedure November 3-7, 2008

by David Badertscher

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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.

November 13, 2008

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

by David Badertscher

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 …

November 3, 2008

Findlaw Case Summaries: Constitutional Law October 27-31, 2008

by David Badertscher

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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)

November 3, 2008

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

by David Badertscher

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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 …