Court Decisions

October 27, 2008

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

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.

October 21, 2008

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

by David Badertscher

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

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

October 20, 2008

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

by David Badertscher

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

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

October 20, 2008

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

by David Badertscher

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

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

October 20, 2008

New York Appellate Division Criminal Cases Originating from the New York Supreme Court NY County. October 20, 2008.

by David Badertscher

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

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

The People of the State …

October 14, 2008

Findlaw Summaries: Constitutional Law October 6-10, 2008

by David Badertscher

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

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