Nassau Lawyer November 2017

The Journal of the Nassau County Bar Association
NOVEMBER 2017 www.nassaubar.org Vol. 67, No. 3
Follow us on Facebook OCTOBER 10, 2017
Past Presidents Room Dedicated in

NCBA COMMITTEE MEETING CALENDAR
Page 22
SAVE the DATES

WE CARE SENIOR CITIZEN’S
Honor of Frank and Marie Santagata
THANKSGIVING LUNCHEON
Thursday, November 23, 2017
By Valerie Zurblis
11:00 a.m.-1:00 p.m.
See page 18
The Nassau County Bar Association
would not be the outstanding exemplar for
the legal profession were it not for the vision
NCBA HOLIDAY CELEBRATION
and efforts of NCBA’s Past Presidents.
Thursday, December 7, 2017 Every attorney who has held the Bar’s
6:00 p.m. at Domus highest office, from Founding President
No Charge for this Event Augustus N. Weller in 1899 through the
Members and their families invited current President, Steven G. Leventhal, has
See details page 6 inspired members to strive to be the best.
To honor these men and women and
WE CARE acknowledge their incredible contributions
Gingerbread University to the Bar’s legacy, the Nassau County Bar
Saturday, December 9, 2017
Association recently unveiled the Frank J. &
Marie G. Santagata Past Presidents Room.
See page 18 for details and registration
This new meeting space is now available for
all members to meet and work together to
WHAT’S INSIDE continue to advance the mission of the Bar
Association and to serve members, the legal
profession and the public.
Criminal Law Due to the generosity of Hon. Marie G.
Santagata, the room was named in honor of
Supreme Court Casts Forfeiture Law Frank J. Santagata, who served as NCBA
Expectations into Doubt Page 3 President from 1983-1984, and Judge
The Student Defendant Page 5
Santagata. At the dedication ceremony on
October 10, NCBA President Leventhal
Challenging the Use of Portable noted, “Translated from Italian, the name
Breath Test Results as Prima Facie Santagata means, of course, Saint Agatha,
Proof of Intoxication Page 7 one of the most venerated of Christian
martyrs. But here at Domus, the name
Lost, Found and Stolen Santagata has another meaning. Here it is
– The Nexus Page 8 synonymous with professionalism, dignity
Obligations of Prosecutors and
See DEDICATED, Page 17
Defense Attorneys to Prevent
False Testimony Page 9
Criminal Defenders Stand Between

Local Law Enforcement and the
Deportation Pipeline Page 10
Claims by the Exonerated for

False Imprisonment and
Malicious Prosecution Page 11
Interrogating a Student in a The Frank J. and Marie G. Santagata Past Presidents Room was dedicated on October
School Setting Page 12 10, 2017. (l-r) Maureen Dougherty, Hon. Marie G. Santagata and NCBA President
Steven G. Leventhal. Photos by Hector Herrera
Sealing of Criminal Records:
Apply Alone, at Your Own Risk Page 13
“Thank you for the honor of naming this room after us, but it
CPLR Update Page 16
really isn’t just about the two of us. It’s about this building, the
The Cost of Incarceration Education:
Education Yes, a Job…Maybe Page 20
traditional Toast to Domus and everything for which the Bar
NCBA Member Benefit - I.D. Card Photo
Association stands. Our building is a key part of NCBA’s history.” (l-r) Maureen Dougherty, President Leventhal
and Marie Santagata cut the ribbon to officially
Obtain your photo for Secure Pass Court ID Hon. Marie G. Santagata dedicate the new Presidents Room.
cards at NCBA Tech Center
Only For New Applicants
Cost $10 ● December 12, 13 & 14, 2017
9 a.m.- 4 p.m.
CONFIDENTIAL HELP IS AVAILABLE
TO LAWYERS AND JUDGES
alcohol or drug use, depression or
Upcoming Publications Committee Meetings other mental health problems
Thursday, Dec. 14, 2017 12:45 p.m. at
Call Lawyer Assistance Program
Domus
Thursday, Jan. 4, 2018 12:45 p.m. at Domus 1-888-408-6222
2 n November 2017 n Nassau Lawyer
Nassau Lawyer n November 2017 n 3
Criminal Law
Supreme Court Casts Forfeiture Law
Expectations into Doubt
The U.S. Supreme Court is setting criminal conspiracy.1 proceeds of the conspiracy,” joining certiorari, Lo v. United States, is wheth-
its sights toward federal forfeiture law, several circuits in an expansive view of er the government may seek a criminal
and cracks are beginning to appear Honeycutt v. United States criminal forfeiture.3 forfeiture money judgment at all, an
where expectations had been settled. A The Supreme Court recently took this Justice Sotomayor’s opinion in issue not raised in Honeycutt. Henry
Supreme Court decision, a petition for sweeping tool away from the govern- Honeycutt strictly followed the lan- Lo pled guilty to mail and wire fraud
certiorari, a con- ment in Honeycutt v. United States.2 In guage of 21 U.S.C. § 853, which man- and admitted to fraudulently obtain-
cession from the Honeycutt, the Court held that the drug dates forfeiture of “any property consti- ing over $2.2 million. The trial court
government, and forfeiture statute, 21 U.S.C. § 853, only tuting, or derived from, any proceeds ordered a forfeiture money judgment of
a statement from permits a forfeiture money judgment for the person obtained, directly or indi- $2,232,894.5
Justice Clarence property a defendant actually acquired rectly, as the result of” certain crimes. The Lo Petitioner raises a simple
Thomas signal as part of the crime, not all proceeds of The Court concluded that the provi- argument: courts cannot impose crimi-
that fundamental the conspiracy. sions of the statute limit forfeiture to nal punishment in the absence of stat-
issues of forfei- In Honeycutt, defendant Terry property the defendant himself actu- utory authority, and there is no statu-
ture law may be Honeycutt managed sales and invento- ally acquired, not property obtained tory authority for a criminal forfeiture
re-examined. ry at his brother’s hardware store. The by other conspirators. The Court held money judgment. In opposing certiorari,
Criminal pros- brothers were prosecuted for conspir- that the plain text of the statute and the government frames the petition-
ecutors in the ing to sell iodine with the knowledge the limitation of forfeiture to proper- er’s argument correctly, that courts are
Second Circuit that it was being used to manufacture ty acquired or used by the defendant statutorily limited to forfeiting specif-
Kevin P. Mulry and throughout ic assets and cannot impose forfeiture
methamphetamine. The government “foreclose joint and several liability for
the country have sought a forfeiture money judgment co-conspirators.”4 money judgments. The government does
typically sought forfeiture money judg- of $269,751.98, constituting the hard- Honeycutt significantly curtails the not, however, cite to specific statutory
ments against all defendants for the pro- ware store’s profits. The defendant’s government’s forfeiture power, limiting language allowing for the imposition of
ceeds obtained by all members of a crim- brother pled guilty and agreed to forfeit its reach to proceeds acquired by a defen- a forfeiture money judgment. Instead,
inal conspiracy. Thus, minor players in a $200,000. The government sought and dant, as opposed to all criminal proceeds. it argues that the courts of appeal have
conspiracy with significant assets could obtained a forfeiture money judgment The Supreme Court’s strict statutory repeatedly upheld forfeiture money judg-
find themselves jointly and severally lia- against defendant Terry Honeycutt analysis in Honeycutt may also guide the ments.6 In addition, it points to the stat-
ble for a forfeiture money judgment well for $69,751.98, even though he did decision in a case the Court could take utory provision permitting forfeiture of
in excess of the proceeds they actually not personally benefit from the hard- up this term. substitute assets where directly forfeit-
received from their crime. Courts had ware store’s profits. The Sixth Circuit ed assets are unavailable. The govern-
held these defendants to be jointly and held that the conspiring brothers were Lo v. United States ment asserts that the substitute assets
severally liable for all proceeds of the “jointly and severally liable for any The issue in a pending petition for See FORFEITURE, Page 8
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Nassau
A LAUGHINGSTOCK? Lawyer
The Official Publication
“We also have to come up with punishment that’s of the Nassau County Bar Association
far quicker and far greater than the punishment these 15th & West Streets, Mineola, N.Y. 11501
animals are getting right now. They’ll go through court Phone (516) 747-4070 • Fax (516) 747-4147
for years. And at the end, they’ll be -- who knows what www.nassaubar.org
happens. We need quick justice and we need strong justice E-mail: info@nassaubar.org
-- much quicker and much stronger than we have right NCBA Officers
now. Because what we have right now is a joke and it’s a President
laughingstock. And no wonder so much of this stuff takes Steven G. Leventhal, Esq.
place.” President-Elect
– Donald Trump, reacting to the October 31, NYC Elena Karabatos, Esq.
terror incident. Vice President
Richard D. Collins, Esq.
“The Part I took in Defence of Treasurer
Cptn. Preston and the Soldiers, Dorian R. Glover, Esq.
procured me Anxiety, and Obloquy Secretary
enough. It was, however, one of Gregory S. Lisi, Esq.
the most gallant, generous, manly Executive Director
and disinterested Actions of my Keith J. Soressi, Esq.
whole Life, and one of the best Editors-in-Chief
Pieces of Service I ever rendered Rhoda Y. Andors, Esq.
my Country. Judgment of Death Anthony J. Fasano, Esq.
against those Soldiers would have Proofreader
From the been as foul a Stain upon this

Country as the Executions of the
Allison C. Shields, Esq.
Editor/Production Manager
President Quakers or Witches, anciently. As

the Evidence was, the Verdict of
Sheryl Palley-Engel
Assistant Editor
Valerie Zurblis
the Jury was exactly right.”
–John Adams, reflecting on the Photographer
Steven G. Leventhal Image courtesy Library of Congress Hector Herrera
Boston Massacre trial.
November Editorial Staff
There is a great and desperate need for improve- the Poor and destitute, who suffer greatly at the present Criminal Law
ment in our system of justice. Disparities of wealth and time. Many thousands are in want of common neces- Anthony J. Fasano, Esq.
saries; hundreds of thousands are in want of common Focus Editor
race, overwhelming caseloads, and crowded prisons, Rhoda Y. Andors, Esq.
all demand vigilant efforts at reform. But overall, our comforts, sir.” Deborah S. Barcham, Esq.
justice system is the envy of the world and a crowning “Are there no prisons?” asked Scrooge. “Plenty of pris- Ellin Regis Cowie, Esq.
achievement of western civilization. As Churchill said of ons,” said the gentleman, laying down the pen again. Christopher J. DelliCarpini, Esq.
“And the Union workhouses?” demanded Scrooge. “Are Nicole Donatich, Esq.
democracy, it is the worst system in the world – except Naela Hasan
for all the others. they still in operation?” “They are. Still,” returned the Jeff H. Morgenstern, Esq.
On March 5, 1770, a group of British soldiers fired gentleman, “I wish I could say they were not.” “The
into a mob, killing five civilians, in what came to be Treadmill and the Poor Law are in full vigour, then?” Upcoming Focus Issues
known as the Boston Massacre. Three weeks later, the said Scrooge. “Both very busy, sir.” “Oh! I was afraid, December 2017
from what you said at first, that something had occurred Commercial/Bankruptcy/Tax Law
soldiers and four civilians were indicted. The incident
was a flashpoint for anti-British propaganda, including to stop them in their useful course,” said Scrooge. “I’m January 2018
very glad to hear it.” Labor & Employment Law/
a widely distributed engraving by Paul Revere depicting Immigration
the commanding officer, Captain Preston, ordering his – Dickens, A Christmas Carol, 1843.
February 2018
men to fire. The soldiers could not find a lawyer willing Personal Injury/Workers
to undertake their defense, until a thirty five year old As the holidays approach, our thoughts turn to the Compensation
patriot, future founding father and eventual second less fortunate among us. In considering your own chari-
table giving, I hope that you will remember WE CARE. Committee Members
President of the United States, John Adams, accepted Rhoda Y. Andors, Esq., Co-Chair
the case. In doing so, Adams risked his career and the Throughout the year, our members contribute their Anthony J. Fasano, Esq., Co-Chair
Deborah S. Barcham, Esq.
safety of himself and his family. time and resources to raise funds and award grants to Gale D. Berg, Esq.
The trials were delayed to allow public sentiment to local charities that bring relief to needy members of our Wahida Bhuyan, Esq.
Deanne Marie Caputo, Esq.
cool. Seven months later, the trial of Captain Preston community. Of course, your donations will be gratefully David Z. Carl, Esq.
began. It lasted six days, a very long time for a murder accepted. But so will your participation at heartwarming Ellin Regis Cowie, Esq.
Christopher J. DelliCarpini, Esq.
trial of that era. Captain Preston’s defense was that he events such as our Thanksgiving luncheon for seniors Marc G. DeSantis, Esq.
who would otherwise do without, and our holiday festival Nicole A. Donatich, Esq.
did not order his men to shoot. Twenty three defense wit- Nancy E. Gianakos, Esq.
nesses testified that the soldiers were intimidated and for less privileged children. For a special holiday treat, Robert S. Grossman, Esq.
Mary E. Guararra, Esq.
provoked by the crowd. It was uncertain who shouted the bring your children or grandchildren to Gingerbread Adrienne Flipse Hausch, Esq.
word “fire”. The jury was sequestered, and Preston was University at which they can add candy decorations to Naela Hasan
Charles E. Holster III, Esq.
acquitted upon a finding of “reasonable doubt”, an early, their own gingerbread houses. George M. Kaplan, Esq.
if not the earliest, application of that standard of proof. Patricia A. Kessler, Esq.
The other soldiers were tried a month later. Adams
NOS IMPORTA – WE CARE Richard B. Klar, Esq.
Kenneth J. Landau, Esq.
In our continuing support of hurricane relief efforts Robert D. Lang, Esq.
asserted that they fired in self-defense and not, as the Michael J. Langer, Esq.
prosecution argued, in revenge for months of abuse and on the devastated island of Puerto Rico, WE CARE has Douglas M. Lieberman, Esq.
Nicole Lubell, Esq.
harassment. Six soldiers were acquitted, and four were donated nine gift cards, each in the amount of $500, to Randa D. Mahar, Esq.
convicted of the lesser charge of manslaughter, thereby Puerto Rican law students studying at Touro Law School Cheryl Y. Mallis, Esq.
Angelica M. McKessy, Esq.
escaping the death penalty. Another month later, the while the island law schools are closed, so that they may Thomas McKevitt, Esq.
civilian defendants were acquitted after prosecution wit- purchase winter coats and other personal necessities. Daniel McLane, Esq.
Jeff H. Morgenstern, Esq.
nesses were found to have perjured themselves. The Nassau County Bar Association has contributed Anmol Nadkarni
$1,000 toward the purchase of a generator by the island Michal E. Ovadia, Esq.
Oliver Wendell Holmes famously said that the life of Alissa K. Piccione, Esq.
the law is not logic, it is experience. Experience warns bar association, El Colegio de Abogados de Puerto Rico. On Marian C. Rice, Esq.
Allison C. Shields, Esq.
against fashioning an expedited procedure for the prose- November 29, the Nassau Academy of Law will present a Natasha Shishov, Esq.
cution of defendants that we believe are guilty. CLE program, to share the knowledge that we gained in David Torreblanca, Esq.
James W. Versocki, Esq.
our recovery from Super Storm Sandy, and to help train Published by Long Island Business News
island lawyers in the representation of storm victims. We
AS THE HOLIDAYS APPROACH are collecting nonperishable food items and packaged dry
(631) 737-1700; Fax: (631) 737-1890
Publisher Graphic Artist
“At this festive season of the year, Mr. Scrooge,” said goods for delivery to island communities in need. Scott Schoen Ryan O’Shea
the gentleman, taking up a pen, “it is more than usually Best wishes to all for a happy and healthy Thanksgiving Nassau Lawyer (USPS No. 007-505) is published
desirable that we should make some slight provision for holiday. monthly, except combined issue of July and
August, by Long Island Commercial Review,
2150 Smithtown Ave., Suite 7, Ronkonkoma,
NY 11779-7348, under the auspices of the
Nassau County Bar Association. Periodicals
postage paid at Mineola, NY 11501 and at
Nassau Lawyer welcomes articles written by members of the Nassau County Bar Association and are of substantive and procedural legal interest to additional entries. Contents copyright ©2015.
our membership. Views expressed in published articles or letters are those of the authors alone and are not to be attributed to the Nassau Lawyer, its Postmaster: Send address changes to the
Nassau County Bar Association, 15th and
editors, or NCBA, unless expressly so stated. Article/letter authors are responsible for the correctness of all information, citations and quotations. West Streets, Mineola, NY 11501.
Criminal Law
The Student Defendant

Just days after a Bronx high school ise, the Court held that “the legality of
student was stabbed to death in class the search of a student should depend
on September 27, 2017, a 13-year-old simply on the reasonableness, under all
boy brought a gun to his Bronx middle the circumstances, of the search.”5
school.1 Fortunately, the gun was unload- In Matter of Gregory M., the New
ed and school safe- York State Court of Appeals held that
ty agents recov- the reasonable suspicion standard
ered it from the established in TLO was also appropriate
boy’s backpack. under the State Constitution.6 Before
Police responded, TLO, the Court of Appeals had long
secured the gun, recognized that students were protected
and arrested the from unreasonable searches.
student. In People v. Scott the court observed
Sadly, these that because the unique role that teach-
incidents high- ers play, “they are, to a degree, like
light the grow- parents.”7 However, the court also noted
ing presence of that “[i]n exercising their authority and
weapons in our performing their duties, public school
Joseph Lilly schools. From teachers act not as private individuals
July 1 through but perforce as agents of the State.”
September 30, As such, the court went on to hold
2017, police recov- that, “children may not be equated with
ered 328 weapons adults for all constitutional purposes,”
at New York City but they are still protected from “random
Public Schools, a causeless searches.”
48% increase from The Court of Appeals concluded that
last year during schoolhouse gate, … the nature of those States Supreme Court in New Jersey evidence obtained by a school official in
the same time.2 rights is what is appropriate for chil- v. TLO.4 The Court held that students violation of the student’s right to be pro-
dren in school.”3 Thus, searches in school are entitled to the protections of the
As demonstrat- tected from unreasonable searches, can
present a unique constitutional analysis, Fourth Amendment against unreason- be a basis for suppressing such evidence
ed by the story
particularly when law enforcement is able searches, even when the search in a subsequent criminal prosecution.
above, discovery
involved or present during the search. is conducted in the school setting by Specifically, the court noted that “when
of a weapon (or
school officials. However, the Court also
Nicole Donatich drugs) in school The Reasonable Suspicion Standard recognized that the unique nature of
the drastic consequences flowing from
can quickly turn for School Searches the school setting does not require strict
State action occur, then the behavior
a student into of agents of the State may be circum-
The legal standard governing stu- adherence to the probable cause require-
a student defendant. It is well settled scribed by similar limitations which cir-
dent searches conducted by school offi- ment normally associated with criminal
that “while children assuredly do not
cials was established by the United defendants. Proceeding from this prem-
shed their constitutional rights … at the See STUDENT, Page 21
Holiday Gift Idea!

Custom Engraved
Brick at the Bar
Photo by Hector Herrera
NCBA 85th Annual

Holiday Celebration
Celebrate the Season at Domus!
There are many events at Domus at 6:00 p.m. There is NO CHARGE to
throughout the year, but the Holiday attend the event, but pre-registration
Celebration is truly a family occasion. is requested.
Rejoice in the simple pleasure of shar- We ask that each guest or family
ing a fun evening with friends and bring a new, unwrapped toy to the event
colleagues. Members are encouraged to be distributed by WE CARE to the less
to bring their children and grandchil- fortunate children in Nassau County.
dren to hear seasonal music, listen to
the spirited “Wassail” storytelling told Come celebrate with us!
by the President-Elect and enjoy the Watch for your invitation in the mail.
holiday fare by The Cloak Room. Plus, To register for the Holiday Celebration
goody bags for the kids! or for more information please contact
The Holiday Celebration will be held the Special Events office at (516)747-
on Thursday evening, December 7th 4070 x226 or events@nassaubar.org.
The Nassau County Bar Association

cordially invites its members and their families
to capture the spirit of the holiday season at the
85th Annual
Holiday Celebration
Thursday Evening s December 7, 2017
6 p.m. @ Domus
Hear the “Tale of Wassail”
Seasonal Music
Holiday Fare
Goody Bags for the Kids
There is no charge for this special evening!

Pre-Registration is requested
We ask that each guest or family bring an unwrapped toy to be
distributed by WE CARE to needy children in Nassau County.
Watch for your invitation in the mail

To Register or Questions...Please contact Special Events
(516)747-4070 x226 or events@nassaubar.org
NCBA Corporate Partners
Assured Partners Northeast/CBS Coverage·Baker Tilly·Champion Office Suites
Giorgenti Custom Clothing·PrintingHouse Press·Realtime Reporting·RVM
Criminal Law
Challenging the Use of Portable Breath Test

Results as Prima Facie Proof of Intoxication
In the typical prosecution for driving language of § 1195 tracks the section The Conforming Products List In order to qualify as a confirmatory
while intoxicated, the results of a stan- of the VTL that references chemical devices to provide quantitative eviden-
dard chemical breath test are prima breath tests (§1194(2)(a)) and not the The distinction between field breath tiary proof of intoxication the testing
facie evidence that the defendant had section that authorizes field breath tests used for screening purposes and device must meet six additional testing
a blood alcohol content above the stat- tests (§ 1194(1)(b)), it is clear that chemical breath tests used as eviden- standards beyond those required of a
utory threshold. However, where the VTL § 1195 was not meant to apply tiary proof is also employed in the con- screening device.18 Many PBTs do not
court has suppressed the chemical test to the field breath tests authorized by text of federal driving while intoxicated meet all of the standards for use in
reading, the prosecution may seek to VTL § 1194(1)(b). The Brockington regulations,13 and the D.O.T.’s trans- confirmatory alcohol testing, failing the
admit the reading of portable breath court’s determination that VTL § 1195 portation workplace drug and alcohol first three of the six enumerated stan-
test (PBT), which does not distinguish “among portable testing program().14 This is significant dards.19 Accordingly, it is important
is often admin- breath tests, the infra-red stationary because the D.O.T. has promulgated to check the list to determine whether
istered as part breath tests that take place in the the Conforming Products List, which the device in question meets the more
of the standard police precinct, or any other test” and has been effectively adopted by the stringent standards.
field sobriety therefore, PBT test results may be New York State Department of Health The D.O.T. does not permit the use of
testing, as prima admitted pursuant to VTL § 1195 as (D.O.H.) to inform the selection of devic- the results from such portable devices
facie evidence long as the test was properly adminis- es for approval under VTL § 1194(4)(c). as evidentiary proof beyond screening
of intoxication tered,6 is a misreading of the statute. The D.O.H. is required to “issue and purposes notwithstanding their pres-
or impairment. file rules and regulations approving ence on the Conforming Products List.
Despite the The Field Test vs. the Chemical satisfactory techniques or methods of If the PBT device used on your defen-
weight of appel- Breath Test conducting chemical analyses of a per- dant is not authorized to perform a
late authority Notably, unlike the chemical tests son’s blood, urine, breath or saliva.” 15 federal confirmatory test, which is the
to the contrary, set forth in VTL § 1194(2), the VTL Some courts have relied on the D.O.T.’s blood-alcohol content test anal-
Peter B. Skelos some trial courts § 1194(1)(b) “Field testing” is not inclusion of PBTs on the Conforming ogous to the VTL §1194(2)(a) chemi-
and have admitted described as a chemical breath test. Products List to establish their reli- cal breath test, mere reference to the
Robert J. Brunetti PBT readings in Because § 1194(1)(b) provides that if ability.16 This reliance is misplaced, Conforming Products List cannot be a
support of the the results of the breath test indicate because the Conforming Products List basis for finding that the PBT device is
prosecution’s prima facie case. This that alcohol has been consumed by the includes both alcohol screening devices, generally accepted as a reliable device
article will discuss the arguments motorist, then the officer may request which, like field breath tests, determine to quantitatively prove intoxication.
defense counsel should consider when the motorist to submit to a chemical only “whether an employee may have a Appellate courts have declined to
confronted with an application to breath test (VTL § 1194(2)(a)(2)), it is prohibited concentration of alcohol in a consider the inclusion of the Alco-Sensor
admit PBT readings as prima facie evident that the legislature meant for FST on the Conforming Products List
breath or saliva specimen,” and alcohol
evidence of intoxication or impairment. the field breath test to be used only as a sufficient basis on which to estab-
confirmation devices, which, like chem-
as an investigative tool to determine lish its reliability for determining blood
The Controlling Authority whether further inquiry or arrest is
ical breath tests, provide “quantitative
See INTOXICATION, Page 21
data about the alcohol concentration”.17
As a threshold, it is important to warranted. If the field breath test was
note that all trial courts in New York intended to be an evidentiary test to be
are bound by the decisions of the used as part of the prosecution’s case
Appellate Division and the Court of
Appeals.1 The controlling appellate
in chief, there would be no purpose for
the chemical tests authorized under
CALL FOR NOMINATIONS
authority, as articulated in People v. VTL §1194(2)(a). The purpose of the
Kulk, People v. Thomas, and related field breath test is merely to determine The Nominating Committee welcomes applications
cases, is that the results of portable whether the motorist has consumed for nominations to the following
breath tests may be used to establish alcohol, not to provide evidentiary proof
probable cause, but are inadmissible of the quantitative amount consumed. Nassau County Bar Association
at trial.2 In the absence of relevant VTL § 1194(2), reiterates that the offices for the 2018-2019 year:
authority from the Court of Appeals purpose of a breath test is to determine
or the Appellate Division department whether alcohol has been consumed,7 q President-Elect q Vice President
in which the trial court hearing the whereas the chemical breath test is to
application sits, the trial court and the be utilized to determine blood-alcohol
Appellate Term are bound to adhere to content.8 This subdivision repeats the q Treasurer q Secretary
judicial precedent established “by the instruction that the breath test may
Appellate Division of another depart- serve as a predicate for the chemical
ment until the Court of Appeals” or the breath test, further indicating the evi-
relevant Appellate Division “produces
a contrary rule.”3
dentiary distinction between a field
breath test and a chemical breath test.9
Applications are welcome for nominations to serve on the
Nassau County Bar Association Board of Directors. There
Misapplication in Recent Cases Due Process Implications
Recent court holdings that portable Section 1194(2)(b)(1)(C) similarly
are eight (8) available seats, each is for a three year term.
breath test results are admissible as distinguishes between chemical breath
part of the prosecution’s prima facie tests and field breath tests in its com-
case, such as People v. Brockington mand that before a police officer may
and People v. Turner, on which People administer a chemical breath test, the
The Nominating Committee invites applications for nominations to the
v. Brockington erroneously relies, do operator of the motor vehicle must be following offices of the Nassau Academy of Law for the year 2018-2019:
not reflect a correct application of the advised of the consequences of a refus-
controlling authority of judicial hier- al to submit to the test and the conse- Dean Associate Dean Assistant Dean (3)
archy.4 quences if the chemical test reading is Treasurer Secretary Counsel
The court in People v. Brockington in excess of the statutory limit. There
determined that VTL § 1195 com- is no such notice required in advance
mands the result that a field breath of field testing. Thus, there are due
test be admitted into evidence.5 The process implications if the field breath NCBA members interested in applying for any of the above
Brockington court failed to recognize test is utilized as evidence to convict, nominations, or in submitting suggestions for such nominations,
that the VTL distinguishes a field in the absence of notice that the con- are invited to submit such information to:
breath test (a/k/a “portable breath sequences if the results of the PBT are
test”) from a chemical breath test. in excess of the statutory limit, or the
Martha Krisel, Chair, Nominating Committee, NCBA,
Section 1195 should be read together sanctions that may be imposed in the 15th & West Streets, Mineola, NY 11501 or
with VTL §1194(2)(a). Both sections event the operator refuses to cooper- email: spalley-engel@nassaubar.org.
make reference to “blood-alcohol con- ate with the police officer’s request
tent,” whereas § 1194(1)(b) provides to submit to a PBT.10, 11 Without the Deadline for all nominations:
that a breath test administered under proper advisement, a motorist does not
that section is used to make a pre- have the same informed opportunity January 31, 2018
liminary determination whether alco- to decide whether to refuse to submit
hol has been consumed. Because the to a PBT.12
Criminal Law
Lost, Found and Stolen – The Nexus

An infrequently noted section of the premises where the property or instru- “sting” operation. Because both of these was found in possession of complainant’s
Personal Property Law may impact the ment was found.” If the person fails to cases resulted, though, in dismissals “in wallet insufficient; larceny conviction
question of whether a “finder” of “lost” return the property within the allotted the interests of justice,” rather than on reversed); and People v. McFarland6
property can subsequently be prosecuted time, they may be guilty not of larceny the merits, the issue was not actually (complainant left her purse behind in a
for “larceny” of the property under Penal under Penal Law Article 155, but a directly addressed and resolved other shopping cart; defendant finder’s appre-
Law. separate and independent, unclassified than in dicta. hension while in possession of it, in suf-
The larceny offenses under Penal criminal misdemeanor, under Personal In People v. Washington,3 the ficient; conviction reversed).
Law Article 155 range from petit larce- Property Law § 252(3), carrying a pen- Appellate Term reversed a conviction These Appellate Division decisions do
ny, a class A misdemeanor (Penal Law alty of up to six months imprisonment. for larceny. The Appellate Term reject- not necessarily amount to an acceptance
§155.25), to grand To establish a criminal violation of ed the argument that the property was of the interpretation that there can be
larceny in the first Personal Property Law § 252, it is not only returned after a request, and that no Penal Law larceny prosecution unless
degree, a class B necessary to establish the intent to the defendant had evinced a desire to the ten-day period of Personal Property
felony (Penal Law “deprive” another, or to “appropriate” permanently deprive the complaining Law §252 has been exceeded. However,
§155.42). the property, but merely a “refusal” to witness of the property. The Appellate they do indicate that Personal Property
Penal Law § comply with § 252’s “return” require- Term held: Law §252 – by providing a ten-day
155.05(1) provides ment, or “willful neglect” to comply. Since the wallet was either lost or window for finders to return property
that “[a] person The interplay between these two stat- misplaced by the owner, defendant’s before a criminal penalty will attach -
steals property utes in cases where the property was ini- momentary taking possession there- establishes a presumption, which the
and commits lar- tially lost may impact the sustainability of did not constitute a larceny (see, People will be required to overcome
ceny when, with of a larceny prosecution. Personal Property Law § 252). Moreover, – at both the pleading and proof stag-
intent to deprive Does Personal Property Law § 252 when asked by complainant for the wal- es. The presumption is that unless
another of prop- effectively define what “reasonable mea- let, defendant promptly presented it to the ten-day period for return afforded
Kenneth L. erty or to appro- sures” are under Penal Law §155.05(2) him without objection or denial. Thus, no by Personal Property Law §252 has
Gartner priate the same to (b), at least in terms of the temporal crime had been committed. been transgressed, to sustain a Penal
himself or a third framework? Is an arrest and prosecution In People v. Moore,4 the Appellate Law prosecution or conviction for larce-
person, he wrongfully takes, obtains, or for larceny, where the property allegedly Division found that the People’s evi- ny with respect to initially lost property,
withholds such property from an owner stolen was initially lost, but ten days dence at trial that a complaining wit- there must be sufficient evidence beyond
therefor.” have not elapsed, “in conflict with NY ness’s wallet disappeared while he was a reasonable doubt to support an intent
by the finder to permanently deprive the
Penal Law §155.05(2)(b) provides that Personal Property Law § 252 which pro- on a subway train, and was recovered
owner of, or appropriate, the lost prop-
“larceny can be committed by the finder vides for a ten-day period to turn in to from the defendant by two police officers
erty (see, Penal Law §§155.00[3] and [4],
of lost property.” Larceny “includes a proper authorities any found property?” later that evening, was insufficient to
respectively). A “reasonable innocent
wrongful taking, obtaining, or withhold- The question was answered “yes,” support a conviction for larceny, and
explanation” may be all that is necessary
ing of another’s property, with the intent by People v. Arroyo,1 (dismissed, in the reversed it. The Appellate Division held
to overcome this demonstration.
prescribed in subdivision one of this interests of justice, a larceny charge that calling “intent” “a question of cred-
section,” if the person “exercises control brought against a defendant for taking ibility” cannot excuse the absence of Kenneth L. Gartner, formerly a Judge of the
over property of another which he knows into his possession, and not immediately evidence where “[t]he only circumstan- Nassau County District Court, is a member of
the Mineola firm of Lynn, Gartner, Dunne &
to have been lost or mislaid, or to have turning over to police, an unattended tial evidence of the defendant’s guilt Covello, LLP concentrating in commercial litiga-
been delivered under a mistake as to the bag containing electronic gear which was his possession of the [lost object] at tion and appeals. He has also been an Adjunct
identity of the recipient or the nature had been intentionally left on a subway the time of his arrest,” where there is a Professor at Hofstra and Touro Law Schools.
or amount of the property, without tak- platform as part of a “sting” operation). “reasonable innocent explanation,” and
ing reasonable measures to return such Accord, People v. Gonzalez2 (dismissing, where “the gaps in the People’s evidence 1. 12 Misc.3d 1003, 1005 (Criminal Ct., Kings Co.
2006).
property to the owner.” in the interests of justice, a larceny can only, impermissibly, be filled by 2. 2011 WL 6413863 (Criminal Ct., N.Y. Co.
Personal Property Law § 252 provides charge brought against the defendant conjecture.” Similar results are seen in 2011).
that a finder of lost property has ten days for taking into his possession, and not Appellate Division decisions in People v. 3. 2001 WL 1807737, at *1 (App. Term, 2d Dept.
within which to return the property to immediately turning over to police, a bag Keelan5 (complainant did not know that 2001).
4. 291 A.D. 336 (1st Dept. 2002).
the owner of the property, to the police, containing a laptop from the sidewalk, her wallet was gone until hours after she 5. 189 A.D.2d 625 (1st Dept. 1993).
or to “the person in possession of the where it was similarly left as part of a had last used it; evidence that defendant 6. 181 A.D.2d 1007 (1st Dept. 1992).
FORFEITURE ...
judgment very closely, following the seize property without pre-deprivation forfeiture by the government: “Whether
rationale in Honeycutt. In any event, process; 2) may or may not include a this Court’s treatment of the broad mod-
Continued From Page 3 whether or not the Court grants the defense for innocent owners; and 3) often ern forfeiture practice can be justified by
petition, at least one Justice seems eager lack procedural protections such as a jury the narrow historical one is certainly wor-
provision necessarily contemplates the to give forfeiture law a critical analysis. trial and a heightened standard of proof. thy of consideration in greater detail.”12
He said forfeiture is “widespread and
entry of a forfeiture money judgment Leonard v. Texas highly profitable,” and the government’s Advice For Practitioners
establishing the value of the proceeds of
In March, the Supreme Court denied ability to keep forfeited funds provides The Supreme Court could be on a
criminal activity.7
certiorari in Leonard v. Texas. However, a strong incentive to bring such claims. path to dismantle settled expectations
The government’s brief in opposition
Justice Clarence Thomas issued a sepa- Forfeiture “frequently targets the poor on Federal forfeiture law. Practitioners
to a grant of certiorari makes an import-
rate Statement. His Statement framed and other groups least able to defend should preserve all forfeiture argu-
ant concession: that enforcement of a
the issue before the Court as a funda- their interests in forfeiture proceedings.”10 ments, even those seemingly foreclosed
forfeiture money judgment is limited by
mental one: “whether modern civil-for- Early statutes at the founding of the by Second Circuit law, as the underpin-
the provisions of the applicable forfeiture feiture statutes can be squared with the republic allowed for limited civil forfei- nings of some of these precedents may
statutes. The government will no longer Due Process Clause and our Nation’s ture, and Justice Thomas noted that be shaken loose by the Supreme Court.
assert, as it has at times, that a forfei- history?”9 this historical practice has been cited
ture money judgment can be satisfied James Leonard had been stopped to support civil forfeiture precedents. Kevin P. Mulry is a litigation partner
from any assets of the defendant, under at Farrell Fritz, P.C. He was previously
for a traffic infraction on a known He questioned, however, whether the
federal debt collection statutes or other Principal Deputy Chief of the Civil Division
drug corridor. Police found a safe in historical practice actually does sustain in the U.S. Attorney’s Office for the Eastern
remedies. Instead, assuming a forfeiture the truck, and heard conflicting stories the Constitutionality of modern civil for- District of New York.
money judgment is available, it may only from Leonard and his passenger. They feiture law. First, historical forfeiture
be enforced by forfeiting specific property obtained a search warrant and retrieved laws were narrower than current ones, 1. See, e.g., United States v. Benevento, 836 F.2d
that is subject to forfeiture, either directly $201,100 from the safe. Texas initiated a in specific subject areas and limited to 129, 130 (2d Cir. 1988) (per curiam).
or under the substitute asset provision.8 2. Honeycutt v. United States, 137 S. Ct. 1626
civil forfeiture action alleging the money instrumentalities of crimes rather than (2017).
While this is a step back for the gov- was substantially connected to narcotics criminal proceeds. Second, he questioned 3. Honeycutt, 137 S. Ct. at 1630-31.
ernment, it may present only a proce- sales. Texas prevailed at the trial level the historical basis for civil forfeiture 4. Honeycutt, 137 S. Ct. at 1633.
dural rather than a substantive hurdle. 5. United States v. Lo, 839 F.3d 777, 782-83 (9th
and on appeal. The Texas courts reject- decisions, noting that some early cases Cir. 2016).
If a forfeiture money judgment can be ed petitioner Lisa Leonard’s innocent indicated that in rem forfeitures were 6. See., e.g., United States v. Awad, 598 F.3d 76,
imposed, the government will likely be owner defense, that the cash was from a criminal in nature and may have required 78-79 (2d Cir.), cert. denied, 562 U.S. 950, and 562
able to satisfy the requirements of the home sale in Pennsylvania. proof beyond a reasonable doubt.11 U.S. 1054 (2010).
7. http://www.scotusblog.com/wp-content/
substitute asset provision conditions and Justice Thomas’s Statement began The petitioner in Leonard raised uploads/2017/09/16-8327-BIO.pdf.
forfeit non-tainted assets up to the value with the proposition that modern civil her argument for the first time in the 8. http://www.scotusblog.com/wp-content/
of the forfeiture money judgment. forfeiture statutes are designed to punish Supreme Court, so Justice Thomas uploads/2017/09/16-8327-BIO.pdf, at 20-21.
If the Justices accept certiorari in Lo, 9. Leonard v. Texas, 137 S. Ct. 847, 847 (2017).
the owner of property used for criminal agreed with the denial of certiorari. He 10. Leonard, 137 S. Ct. at 848.
they are likely to examine the statutory purposes. He noted that civil forfeiture concluded, however, with an ominous 11. Leonard, 137 S. Ct. at 848-50.
basis for a criminal forfeiture money proceedings: 1) allow the government to comment for supporters of broad asset 12. Leonard, 137 S. Ct. at 850.
Criminal Law
ON ETHICS
Obligations of Prosecutors and Defense Attorneys

to Prevent False Testimony
As officers of the court, attorneys are be subject to sanctions, such as suspen- system.”13 While defense attorneys must commit perjury. In People v. DePallo,
charged with the duty to ensure that sion from the practice of law.6 pursue all reasonable means to repre- the Court of Appeals held that a defense
evidence and testimony presented to the The duty to prevent frauds upon the sent their clients’ interests, an attorney attorney properly balanced these duties
court are truthful. As counsel for their court also includes disclosing frauds must not go so far as to present or per- by notifying the court that his client had
clients, attorneys upon the court. If the attorney discovers mit the use of evidence in court that the offered perjured testimony and refusing
are also charged that evidence or testimony given by a attorney knows or believes to be false.14 to use that testimony in his closing argu-
with the duty to witness is false, the attorney has a duty Criminal defense attorneys potential- ment to the jury.25 Similarly, in People v.
provide competent to disclose it to the court.7 Rule 3.3(a) ly face a unique ethical dilemma where Andrades, the Court of Appeals held that
and zealous repre- of the New York Rules of Professional a client with a right to testify wishes to a defense attorney acted properly when
sentation. These Conduct states that attorneys “shall not testify falsely. Although a defendant in a he disclosed to the court that his client’s
two duties conflict knowingly…offer or use evidence that criminal case has a right to testify on his intent to testify at a pre-trial suppression
when a witness or the lawyer knows to be false.”8 own behalf,15 that right does not include hearing created an ethical problem, from
a criminal defen- Rule 3.3(a) also requires that if an a right to commit perjury.16 which the court inferred that the defen-
dant intends to attorney, client, or witness offers evi- Accordingly, the duty of attorneys to dant intended to testify perjuriously.26
offer false evidence dence that the attorney knows to be false, refrain from participation in a witness’s In reaching its holding, the Andrades
or perjured testi- or if the client intends to engage in “crim- effort to commit perjury applies even court noted that a client’s intent to com-
mony. inal or fraudulent conduct related to the if the witness is a criminal defendant. mit a crime – such as perjury – is not a
Christopher However, it is proceeding”, the attorney “shall take rea- A criminal defense attorney confronted protected confidence or secret.27 In both
M. Casa well-settled that sonable remedial measures, including, if with such a situation “must contend cases, the Court of Appeals held that the
the ethical obliga- necessary, disclosure to the tribunal.”9 with competing considerations – duties defendants were not deprived of their
tion to provide competent and zealous Pursuant to Rule 3.3(c), this obligation of zealous advocacy, confidentiality and rights to effective assistance of counsel,
representation cannot be relied upon to applies “even if compliance requires dis- loyalty to the client on the one hand, and and that the defense attorneys did not
justify the use of perjured testimony or closure of information otherwise pro- a responsibility to the courts and our violate client confidentiality by disclosing
false evidence. Accordingly, attorneys tected” as confidential under Rule 1.6.10 truth-seeking system of justice on the the defendants’ perjurious intentions to
have certain ethical obligations when Accordingly, the duty to prevent frauds other.”17 the court.28 Accordingly, a defense attor-
confronted with a situation where a upon the court trumps the duty of con- ney whose client intends to commit per-
witness offers or intends to offer false fidentiality, and, when disclosing frauds Guidance on Balancing Duties jury should follow this course of action,
testimony in a criminal case. upon the court, an attorney must disclose Fortunately, the Supreme Court of to ensure that he does not violate his
even confidential information. the United States and the New York obligations to his client or to the court.
Duty to Prevent False Evidence These rules apply to all attorneys, Court of Appeals have provided guidance In criminal cases, prosecutors and
and Testimony including prosecutors and defense attor- on how to balance these duties without defense attorneys alike must act lawful-
Permitting the use of evidence or tes- neys alike. violating either. If a defense attorney is ly and ethically, and must respect the
timony the attorney knows to be false, or faced with a client who intends to commit fundamental principle of justice that a
merely turning a blind eye towards evi- Prosecutors perjury, the attorney is ethically obligat- trial is a search for the truth. When con-
dence or testimony the attorney believes Prosecutors are held to high stan- ed to take action to prevent such false fronted with a difficult situation where
to be false, is unethical, and cannot be dards of conduct in criminal cases, and evidence being presented to the court. a witness for the prosecution or the
justified by the duty to provide compe- are duty-bound to seek justice above all First, the attorney bears the initial defense intends to offer false evidence or
tent and zealous representation. The else. As Justice Sutherland stated in responsibility to attempt to dissuade testimony, including the uniquely chal-
duty to provide competent and zealous Berger v. United States: the client from pursuing the unlawful lenging situation created when a crim-
representation is “limited to legitimate, The [prosecutor] is the representative course of action.18 In Nix v. Whiteside, inally-charged client intends to testify
lawful conduct compatible with the very not of an ordinary party to a controversy, the Supreme Court held that the defense perjuriously, the law demands that all
nature of a trial as a search for truth.”1 but of a sovereignty whose obligation to attorney acted appropriately by admon- attorneys honor the duties owed to the
These limitations require that an govern impartially is as compelling as ishing his client that he would seek court and the justice system.
attorney bear the responsibility of “pre- its obligation to govern at all; and whose to withdraw from representation and
venting false or perjured testimony and interest, therefore, in a criminal prose- disclose his perjury to the court if he Christopher M. Casa, Esq. Chris is an asso-
calling only those witnesses whom he cution is not that it shall win a case, but testified falsely.19 ciate at Rivkin Radler LLP in its Insurance
believes to be truthful witnesses testify- that justice shall be done. As such, he If the client insists on giving perjuri- Fraud and Affirmative Litigation Practice
ing to facts as they understand them to is in a peculiar and very definite sense ous testimony, despite such an admon- Group. Prior to joining Rivkin Radler LLP,
be[.]”2 An attorney must not elicit testi- the servant of the law, the twofold aim ishment, the attorney may seek to with- Chris was an Assistant District Attorney in
Nassau County.
mony from a witness that the attorney of which is that guilt shall not escape draw from the case.20 However, the Court
knows or believes to be false.3 or innocence suffer. He may prosecute of Appeals has noted that a substitution 1. Nix v. Whiteside, 475 U.S. 157, 166 (1986).
Attorneys are also charged with an with earnestness and vigor - indeed, he of counsel may do nothing to resolve the 2. In re Schapiro, 144 A.D. 1, 9 (1st Dept. 1911).
“active affirmative duty to protect the should do so. But, while he may strike problem of receiving perjurious testimo- 3. People v. Salquerro, 107 Misc. 2d 155, 156 (Sup.
Ct. N.Y. County 1980).
administration of justice from perjury hard blows, he is not at liberty to strike ny, and could even facilitate the fraud 4. In re Robinson, 136 N.Y.S. 548, 551 (1st Dept.
and fraud, and that duty is not per- foul ones. It is as much his duty to that the defendant wishes to perpetrate 1912).
formed by allowing his subordinates and refrain from improper methods calculat- upon the court.21 5. 22 NYCRR 1200, Rule 3.4(a)(4)-(5).
6. In re Alderman, 80 A.D.2d 184 (2d Dept. 1981).
assistants to attempt to subvert justice ed to produce a wrongful conviction as it The Court of Appeals has held that if 7. People v. DePallo, 96 N.Y.2d at 441; citing Nix,
and procure results for his clients based is to use every legitimate means to bring the attorney cannot dissuade the defen- 475 U.S. at 168-170.
upon false and perjured testimony.”4 about a just one.11 dant from giving perjurious testimony, 8. 22 NYCRR 1200, Rule 3.3(a)(3).
9. 22 NYCRR 1200, Rule 3.3(a)(3) – (b).
In keeping with the fact that the goal the attorney – who still has a duty to
Duties under Rules 3.3 and 3.4 of prosecutors is to do justice, a prosecu- honor the defendant’s right to testify on
10. 22 NYCRR 1200, Rule 3.3(c).
11. Berger v. United States, 295 U.S. 78, 88 (1935).
Rule 3.4 of the New York Rules of tor is obligated to prevent her witnesses his own behalf – “should refrain from 12. People v. Steadman, 82 N.Y.2d 1, 8 (1993).
13. People v. DePallo, 96 N.Y.2d 437, 441 (2001).
Professional Conduct expressly prohibits from giving false testimony and is obli- eliciting the testimony in traditional 14. Nix, supra; People v. Andrades, 4 N.Y.3d 355
attorneys from “knowingly us[ing] per- gated to correct false testimony if she question-and-answer form and permit (2005); In re Malone, 105 A.D.2d 455, 458 (3d Dept.
jured testimony or false evidence,” and knows that the witness has given false defendant to present his testimony in 1984).
15. Rock v. Arkansas, 483 U.S. 44 (1987).
“participat[ing] in the creation or pres- testimony.12 narrative form.”22 To satisfy the duty 16. United States v. Dunnigan, 507 U.S. 87, 96
ervation of evidence when the lawyer to prevent and disclose frauds upon the
Criminal Defense Attorneys
(1993); Harris v. New York, 401 U.S. 222, 225
knows or it is obvious that the evidence court, the attorney should also inform (1971).
17. DePallo, 96 N.Y.2d at 440.
is false.”5 Any attorney who participates Just as the law imposes limitations the court of the defendant’s perjury.23 18. Nix, 475 U.S. at 169-170; Andrades, 4 N.Y.3d at
in the use or creation of false evidence on the methods by which a prosecutor Furthermore, the attorney must 360; DePallo, 96 N.Y.2d at 441.
or perjured testimony, including elicit- may prove her case, the law also impos- refrain from using the perjurious testi- 19. Nix, 475 U.S. at 171.
20. Andrades, 4 N.Y.3d at 360.
ing from a witness testimony that the es limitations on the methods by which mony in making arguments to the court 21. DePallo, 96 N.Y.2d at 442, citing Salquerro, 107
attorney knows or believes to be false, is criminal defense attorneys may zealous- or to a jury.24 Misc. 2d at 157-158.
subject to disciplinary sanctions. ly represent their clients. 22. Andrades, 4 N.Y.3d at 360.
For example, if an attorney whose cli- The duty of a defense attorney to com- Cases from the Court of Appeals 23. DePallo, 96 N.Y.2d at 441, citing Nix, 475 U.S.
at 168-170.
ent is charged with possession of stolen petently and zealously represent his cli- Two cases from the Court of Appeals 24. Andrades, 4 N.Y.3d at 360.
property suggests that the client testify ent must be “circumscribed by his or her illustrate how defense attorneys can 25. DePallo, 96 N.Y.2d 437.
26. Andrades, 4 N.Y.3d 355.
falsely by denying knowledge that the duty as an officer of the court to serve properly balance their duties when con- 27. Id. at 361-362 (2005) (citations omitted).
property was stolen, that attorney would the truth-seeking function of the justice fronted with a client who intends to 28. Id. at 360; DePallo, 96 N.Y.2d at 442.
Criminal Law
Criminal Defenders Stand Between Local

Law Enforcement and the Deportation Pipeline
By now, most criminal defense more practical risks of detention and to deportation may be viable. Families to the court by ICE and the time limits
attorneys say, “I know, I know,” deportation as a result of contact with who anticipate potential ICE contact for prosecution expire.12 However, a
when reminded that in 2010, the U.S. law enforcement in Nassau and Suffolk can utilize resources found on websites defendant with unresolved criminal
Supreme Court imposed an obligation to Counties. of various not-for-profit agencies; these charges may not be granted bond by
provide immigration advice to non-cit- Recent changes in immigration resources can be shared with immi- an immigration judge nor be able to
izen clients enforcement policies, and increased col- grant clients who have had contact defend against charges of deportation.
charged with laboration between local law enforce- with the criminal justice system.8 What happens in Immigration
criminal offens- ment and immigration authorities, Court after a defendant enters ICE
es. In Padilla v. have magnified the risk of detention ICE Holds custody depends on the outcome of the
Kentucky,1 the and removal that every non-citizen Furthermore, the sheriffs in both defendant’s criminal charges. Certain
high court held faces. Immigration authorities collect Nassau and Suffolk Counties honor criminal convictions trigger mandato-
that a criminal data on the immigration status of all administrative requests (called immi- ry detention, meaning that a non-cit-
defender must convicted aliens incarcerated in state gration detainers or “ICE holds”) from izen is not entitled to release while
provide advice prisons and local detention centers ICE to detain non-citizens for up to 48 his immigration case is litigated.13
to non-citizen throughout the United States, pursu- hours after they would otherwise be Furthermore, certain criminal convic-
clients about ant to President Trump’s Executive released. ICE and local law enforce- tions and admission of some types of
deportation con- Order on “Enhancing Public Safety ment bodies and governments around conduct bar defenses that might other-
sequences of any in the Interior of the United States.”5 the nation have been found liable in wise be available in immigration court.
Michelle conviction, and a Under their own internal policies, federal court for constitutional viola- A defendant with a prior order of remov-
Caldera-Kopf defense lawyer’s local police notify Immigration and tions as a result of their collaboration on al will be deported without any further
prejudicial fail- Customs Enforcement (ICE) of every immigration detainers.9 Nevertheless, hearing unless he presents a credible
ure to do so will support a claim of non-citizen arrest for a crime. both the Suffolk and Nassau Sheriffs fear of persecution. Appointed counsel
ineffective assistance of counsel. While the police promise not to continue to honor detainers. A lawsuit representing non-citizens should reach
But since Padilla was decided, the report witnesses or victims of crimes, against the Suffolk County Sheriff is out to immigration experts as early as
obligation to provide immigration local law enforcement makes no such currently pending in federal court in possible to discuss these immigration
advice has evolved. Advice must be guarantees to criminal suspects. Even the Eastern District of New York.10 consequences.
particularized and specific to the cli- a traffic stop can lead to arrest and One judge of the Supreme Court
Michelle Caldera-Kopf is the Padilla Attorney
ent’s situation. The Supreme Court has detention by ICE.6 Local police notify in Nassau County held that an ICE at the Long Island Regional Immigration
recently held that even where risk of ICE irrespective of the non-citizen’s detainer accompanied by an order of Assistance Center (LIRIAC). There, she pro-
conviction at trial is great due to over- immigration status, so tourists, lawful deportation was a sufficient basis for vides no cost consultations and training to
whelming evidence of guilt, defenders permanent residents and undocument- continued detention. However, that appointed counsel for indigent defendants
prejudice their clients by providing ed immigrants face the same risk of decision was not appealed to a higher about the immigration consequences their
court before it became moot, and other non-citizen clients face. Members of the
erroneous advice.2 reporting if arrested for a crime. 18(b) Panels in Nassau and Suffolk Counties
New York law also requires judg- Nassau County courts have found the
es to ensure due process by giving ICE and the Legal Process opposite.11
can reach out to the LIRIAC at 631-853-7807
or LIRIAC@sclas.org to initiate a consulta-
an immigration warning in all felo- ICE can begin to set in motion the Often, an immigration detainer has tion.
ny cases.3 The Second Department legal process of deportation or visa already been lodged by ICE with local
has extended that obligation to judg- revocation at the moment of a non-cit- law enforcement by the time a defen- 1. 559 U.S. 356 (2010).
2. Lee v. United States, No. 16-327 (June 23,
es hearing misdemeanors.4 A criminal izen arrestee’s first contact with law dant is arraigned, as a result of the 2016).
defender may be his client’s only hope enforcement. All immigrants thus need notification by local police. In this 3. People v. Peque, 22 NY3d 168 (2013).
of avoiding deportation. to understand and assert their consti- situation, a defendant will enter ICE 4. People v. Bello (Jose), 2017 NY Slip Op
tutional rights in any encounter with custody if released by the court on his 50769(U) (June 2, 2017).
Two Types of Risk law enforcement. All attorneys need to own recognizance at arraignment, or
5. Exec. Order No. 13768, 82 Fed. Reg. 8799
(2017).
Non-citizen clients face two types advise their immigrant clients about once the criminal charges have been 6. Hector Manuel Ramos, “Immigrant Advocates
of risk, and criminal defenders must these risks. Defense counsel must be resolved and the defendant has com- Protest Man’s Deportation After Traffic Stop,”
Newsday, Aug. 30, 2017, available at (http://www.
advise and seek to mitigate both types. prepared once a client has come to the pleted any sentence. newsday.com/long-island/nassau/rally-for-salva-
The first is the risk of triggering attention of immigration authorities If bail is set before a detainer is doran-man-who-faces-deportation-1.14099513).
deportation or other adverse legal con- to avoid making a bad situation even lodged, and the defendant is held in 7. Supra., n.5 at § 5.
sequences, such as forfeiting eligibility worse, and to negotiate a safer outcome custody during the criminal prosecu- 8. See https://www.immigrantdefenseproject.org/
resources2/.
for naturalization, lawful permanent where possible. tion, immigration agents working in 9. E.g., Morales v. Chadbourne, No. 14-1425
residence, or other defenses to depor- ICE now prioritizes for removal the Nassau and Suffolk jails will try (1st Cir. July 17, 2015) (ICE agents not entitled
tation under the immigration law. To any undocumented person who has to interview the defendant and make to qualified immunity because necessity that
mitigate these risks, counsel must any criminal conviction, or any “unre- a determination about whether or not detainers comply with 4th Amendment clearly
established in 2009); Galarza v. Szalzaczyk,
investigate their clients’ immigration solved” criminal charge.7 Any undoc- to lodge a detainer. Defense counsel 12-3991 (3rd Cir. March 4, 2013) (ICE detainers
status, understand the potential immi- umented criminal defendant may be should prepare clients to assert their are non-binding requests such that a county
gration consequences, negotiate with taken into ICE custody and required to constitutional rights in these inter- will incur liability for policy of detaining people
on that basis); Miranda-Olivares v. Clackamas
prosecutors to mitigate the risks, and appear before an Immigration Judge to views. Immigration detainers will be County, 2014 WL 1414305 (D. Or. 2014) (county
properly advise clients of the impend- defend against deportation. Even if an issued in any case where ICE deter- liable for 4th Amendment violations); Moreno v.
ing immigration consequences. undocumented defendant is released mines that a defendant is already Napolitano, No. 11 Civ. 05452 (N.D. Ill. Aug. 11,
Second is the practical risk of deten- on his own recognizance at arraign- deportable or may become a priority 2011) (ICE detainers violate federal statutes).
10. Orellana Castaneda v. U.S. Dept, of
tion and deportation by Immigration ment or as the criminal case proceeds, for removal as a result of a conviction. Homeland Sec., No. 2:17 Civ. 04267 (E.D.N.Y.
and Customs Enforcement (ICE), the ICE may come to the defendant’s home, Where a defendant enters ICE cus- filed July 18, 2017).
odds of which greatly increase as a work, or neighborhood as a result of tody during the pendency of state crim- 11. Order(s) and Decision(s) on file with author, decided
July 31, 2015 and December 3, 2015.
result of contact with local law enforce- notification from police of the arrest. inal charges, these charges will be dis- 12. CPLR § 30.30.
ment. This article will focus on the But even after a conviction, a defense missed if the defendant is not returned 13. 8 USC § 1226(c).
EXONERATED ...
12. See Martin v. City of Albany, 42 N.Y.2d 13, 17 1981). 32. Id. at 290.
(1977). 21. Court of Claims Act § 10(3). 33. Id. at 290–91.
13. See Hopkinson v. Lehigh V.R. Co., 249 N.Y. 296, 22. General Municipal Law § 50–e. 34. Id. at 292.
Continued From Page 11 300 (1928), cited in Torres, 26 N.Y.3d at 762. 23. CPLR 215(3). 35. Id.
14. E.g., Lepore v. Town of Greenburgh, 120 A.D.3d 24. Burlett v. County of Saratoga, 111 A.D.2d 426, 36. Id. at 293.
5. Id. 1202 (2d Dept. 2014). 427 (3d Dept. 1985). 37. Id. (quoting City of Canton v. Harris, 289 U.S.
6. Id. (quoting People v. Bigelow, 66 N.Y.2d 417, 15. See Gearity v. Strasbourger, 133 A.D. 701 (1st 25. Papa v. City of New York, 194 A.D.2d 527, 531 378, 388 (1989)).
423 (1985)). Dept. 1909). (2d Dept. 1993). 38. Id. at 294.
7. Harris v. City of New York, 2017 NY Slip Op 16. See Donnelly v. Nicotra, 55 A.D.3d 868 (2d 26. Clark-Fitzpatrick, Inc. v. LIRR, 70 N.Y.2d 382, 39. Id. at 295–96 (citing Ramos v. City of New York,
06527, 2017 N.Y. App. Div. LEXIS 6514 (Sept. 20, Dept. 2008). 386 (1987). 285 A.D.2d 284 (1st Dept. 2001)).
2017). 17. Johnson v. Kings County DA’s Office, 308 27. Broughton, 37 N.Y.2d at 459. 40. See Okure v. Owens, 816 F.2d 45 (2d Cir. 1987);
8. Broughton v. State, 37 N.Y.2d 451, 457 (1975), A.D.2d 278, 285 (2d Dept. 2003). 28. 308 A.D.2d 278 (2d Dept. 2003). Georges v. City of New York, 12-CV-6430 (CBA),
quoted in Torres, 26 N.Y.3d at 760. 18. E.g., Sanabria v. State, 29 Misc.3d 988 (Ct. 29. Id. at 280–82. 2013 U.S. Dist. LEXIS 5386 (E.D.N.Y. Jan. 14,
9. Antonious, 250 A.D.2d at 559. Claims 2010). 30. Id. at 283. 2013).
10. De Lourdes Torres, 26 N.Y.3d at 760. 19. Charnis v. Shohet, 2 A.D.3d 663 (2d Dept. 31. Among the state law claims dismissed was one 41. Felder v. Casey, 487 U.S. 131, 138 (1988);
11. Smith-Hunter v. Harvey, 95 N.Y.2d 191, 196–97 2003). for abuse of process, which cannot be supported by Wanczowski v. New York, 186 A.D.2d 397 (1st
(2000). 20. Karen v. State, 111 Misc.2d 396 (Ct. Claims allegations of negligence. Id. at 288–89. Dept. 1992).
Criminal Law
Claims by the Exonerated for

False Imprisonment and Malicious Prosecution
Our colleagues among the criminal missal on “speedy trial” grounds, but Federal law provides a remedy. Under terized the plaintiff’s federal claims as
defense bar refer to us clients who not where the charge is withdrawn or 42 USC § 1983 “[e]very person who, alleging a “failure to train” or “failure
were arrested the prosecution abandoned pursuant to under color of any statute, ordinance, to supervise,” which triggers liability
without probable a compromise with the accused.11 regulation, custom, or usage . . . sub- when “the failure to train amounts to
cause or detained The additional requirement of mal- jects, or causes to be subjected, any deliberate indifference to the rights of
longer than the ice makes such claims more difficult citizen of the United States . . . to persons with whom municipal employ-
law or circum- to prove than false imprisonment. A the deprivation of any rights, privi- ees come into contact.”37 In Walker v.
stances warrant- particularly egregious lack of probable leges, or immunities secured by the City of New York the Second Circuit
ed. These clients cause, however, may permit an infer- Constitution and laws, shall be liable reduced this theory to three pleading
may have claims ence of malice.12 Evidence of malice to the party injured.” Proving such requirements:
against law may also prove the absence of probable claims, however, requires more than • the policymaker knows “to a
enforcement for cause, as where an investigator or finding impropriety in an isolated moral certainty” that employees
false imprison- prosecutor falsified or withheld evi- arrest or prosecution, as illustrated by will encounter a given situation;
ment, malicious dence in order to suggest probable the Second Department in Johnson v. • the situation presents employ-
prosecution, or cause.13 Kings County DA’s Office.28 ees with a difficult choice that
Christopher J. even federal civil In Johnson the plaintiff had been training would have made
DelliCarpini rights violations. Defendants, Deadlines arrested on a fugitive warrant from easier, or there is a history of
Answering a few and Damages South Carolina. Despite repeated employees mishandling the sit-
questions at the outset can reveal Proper defendants on claims for protestations and a habeus petition, uation; and
whether such claims are viable. false arrest or malicious prosecu- he was detained for 24 days before • the wrong choice by the employ-
tion are commonly police officers and the DA’s office finally requested from ee will frequently result in the
False Imprisonment State troopers, and through respon- South Carolina a photograph and fin- deprivation of a citizen’s consti-
A plaintiff seeking damages for an deat superior their State or local gerprints of the subject of the warrant. tutional rights.38
injury resulting from a wrongful arrest employers.14 Private individuals can The photograph did not depict the The Johnson court found that the
and detention “may not recover under be defendants, for example, when a plaintiff, so the charges were then dis- plaintiff did allege these elements, and
broad general principles of negligence store causes a customer to be arrest- missed.29 furthermore that the DA’s failure to
… but must proceed by way of the tra- ed for shoplifting.15 Merely providing The plaintiff sued the police, the train employees to handle such situ-
ditional remedies of false arrest and information to the police, however, will City and the District Attorney’s office, ations was not a judicial decision but
imprisonment.”1 not support a claim for either tort.16 alleging state law claims but also a vio- a management or policy decision.39
To prove false imprisonment or false District Attorneys and ADAs also enjoy lation of his rights under the Fourth, Thus while neither the DA nor his
arrest, the plaintiff must demonstrate: immunity for acting in their judicial Fifth, and Fourteenth Amendments.30 employees could be held liable for the
(1) the defendant intended to confine capacity, that is, prosecuting and pre- The defendants were denied summa- mistakes that led to the plaintiff’s
the plaintiff; (2) the plaintiff was con- senting the State’s case.17 The State ry judgment by the trial court, but detention, the City (or county, outside
scious of the confinement; (3) the plain- of New York also can be sued where on appeal the Second Department of New York City) could.
tiff did not consent to the confinement; the tortfeasors are within the NYS dismissed all claims except for those Though the issue did not arise
and (4) that the confinement was not Department of Correctional Services, alleging constitutional violations.31 in Johnson, the limitations peri-
privileged.2 for example, when an inmate’s release The first lesson of Johnson is that od for Section 1983 claims brought
Cases have been dismissed for lack date was miscalculated and detention Section 1983 claims “must allege a sub- in New York courts is three years.40
of intent to confine, where the defen- improperly extended.18 stantive constitutional violation with Furthermore, New York’s notice of
dants merely provided information to A claim for false imprisonment specificity.”32 Where an individual is claim requirement does not apply to
the police.3 Cases have also been dis- accrues when the confinement termi- arrested or detained by mistake, there Section 1983 claims.41
missed where the plaintiff had been so nates,19 and a claim for malicious pros- is ordinarily no constitutional viola-
intoxicated that he could prove neither ecution accrues on the trial court’s tion. Even an honest mistake can rise Threshold Questions
consciousness of confinement nor that dismissal.20 Such claims are subject to to a constitutional violation over time, With the above in mind, counsel can
he failed to consent.4 Often, however, the 90-day time limit for filing a notice however, if law enforcement has failed use the following questions to evaluate
the element of privilege is the only one of intention to file a claim, where “to take readily available steps to veri- potential claims for false imprison-
in dispute. the claim is against the State;21 or a fy the identity of an arrestee.”33 ment, malicious prosecution, or civil
An act of confinement is privileged if notice of claim where the defendant is In Johnson the court held that this rights violations, or at least identify
it stems from a lawful arrest supported a municipality.22 Unlike other claims was an issue of fact, given the length areas for further inquiry:
by probable cause.5 “Probable cause against such defendants, however, of detention; the obvious discrepancies • When was the client released, or
does not require proof sufficient to war- claims for false imprisonment and between the plaintiff and the fugitive’s the case dismissed?
rant a conviction beyond a reasonable malicious prosecution are subject to a description; the plaintiff’s repeated • Was the arrest supported by
doubt but merely information sufficient limitations period of only one year.23 protestations; and the ease with which probable cause, or a valid war-
to support a reasonable belief that an “Generally, a plaintiff in a malicious the District Attorney’s office obtained rant?
offense has been or is being committed” prosecution action may recover damag- the subject’s photograph and finger- • What evidence was offered to
by the suspected individual, and prob- es for the direct, natural and proximate prints when it finally requested them.34 justify prosecution or continued
able cause must be judged under the results of the criminal prosecution, That the initial arrest was authorized detention?
totality of the circumstances.6 Where including those for suffering arrest and by CPL § 570.4 was of no moment; • Who made the arrest, or sup-
a court issues a search warrant, there imprisonment, injury to reputation and state law cannot justify a constitution- plied the evidence to justify
is a presumption of probable cause; character, injury to health, well-being al violation, and in this case CPL § prosecution?
a plaintiff rebuts the presumption by and feelings, and counsel fees and 570.46, which prohibits inquiring into • Did the person at fault act on
establishing that the officer procured expenses in defending the criminal the guilt or innocence of the subject their own, or were they follow-
the warrant based upon his or her own prosecution.”24 Plaintiffs must, howev- of an out-of-state warrant, expressly ing official policy?
false or unsubstantiated statements.7 er, make an objective showing of dam- authorized inquiry “for the purpose of • What are the injuries, e.g., days
ages, including damage to reputation.25 identifying the person held as the per- in detention, lost income, harm
Malicious Prosecution The Court of Appeals has held that the son charged with the crime.”35 to reputation?
The tort of malicious prosecution State and its subdivisions are immune The second lesson of Johnson is Christopher J. DelliCarpini is an NCBA
requires: (1) the commencement or to punitive damages.26 that a municipality can be liable under Director and a partner in the DelliCarpini
continuation of a criminal proceeding Where a plaintiff successfully estab- Section 1983 only when the municipal- Law Firm of Mineola, representing plain-
by the defendant against the plaintiff; lishes liability for false imprisonment, ity itself caused the constitutional vio- tiffs in personal injury matters. He can be
(2) the termination of the proceeding damages will be measured only to the lations alleged. The District Attorney’s reached at Chris@DelliCarpiniLaw.com.
in favor of the accused; (3) the absence time of arraignment or indictment, office was immune from liability, and
of probable cause for the criminal pro- 1. Antonious v. Muhammad, 250 A.D.2d 559,
whichever occurs first. Those damages the City could not be liable for indi- 559–60 (2d Dept. 1998)(quoting Boose v. City of
ceeding; and (4) actual malice.8 There will not include attorney’s fees expend- viduals’ conduct through respondeat Rochester, 71 A.D.2d 59, 62 (4th Dept. 1979).
is no cause of action in New York for ed in the subsequent defense of the superior. If the DA’s office set policy 2. See De Lourdes Torres v. Jones, 26 N.Y.3d 742,
negligent prosecution.9 criminal prosecution; such damages that led to constitutional violations, 759 (2016). Cf. Budgar v. State, 98 Misc.2d 588 (Ct.
Claims 1979)(“[E]very false arrest is itself a false
For purposes of the tort, a prose- are properly attributable to the tort of however, then the City could be held imprisonment, with the imprisonment commencing
cution may be commenced or contin- malicious prosecution.27 liable.36 with the arrest.”).
ued by the police if they falsified evi- Tracing case law from the 3. E.g., Defilippo v. County of Nassau, 183 A.D.2d
dence “in substantial furtherance of a Federal Claims Supreme Court’s decision in Monell v. 695, 696–97 (2d Dept. 1992).
4. E.g., Parvi v. Kingston, 41 N.Y.2d 553, 562
criminal action against the plaintiff.”10 Where improper arrest or prose- Department of Social Services of City of (1977).
Favorable termination includes dis- cution violates constitutional rights, New York, the Johnson court charac- See EXONERATED, Page 10
Criminal Law
Interrogating a Student in a School Setting

Being questioned by the police is alize and recall detailed false memo- circumstances would rarely feel free courts have reached that conclusion
almost always a frightening experi- ries of engaging in criminal behavior.” 7 to leave. even if the administrator is acting as
ence. It can be just as traumatiz- The risk of false confessions is a Still, there is no strict rule that the police officer’s mannequin, asking
ing when questioning is conducted by concern when the subject of the inter- applies in every situation. A court will questions that were fed to the admin-
school administrators. rogation is a minor or a young adult. consider the student’s age, but will istrator by the officer. 19 The general
Students Young people are more deferential to also consider other factors (such as the rule, however, is that an administra-
often think, “I’m authority, and more easily persuaded student’s maturity and factors that tor who is acting at the direction of a
innocent. I have by intimidation and other coercive tac- either heighten or lessen the coercive law enforcement officer must give a
nothing to hide.” tics, than older people. As one report- nature of the setting) in deciding Miranda warning before interrogating
Unfortunately, er wrote, “[y]oung people tend to be whether a Miranda warning was a student who would not feel free to
innocence is no impulsive, suggestible, poor at risk required. 15 leave. 20
defense to those assessment, and lacking an apprecia-
interrogation tion for long-term consequences—char- Miranda and Interrogations by Miranda and Voluntariness
tactics that are acteristics that make them vulnerable Administrators Interrogations are sometimes coer-
designed to elic- to false confession.” 8 The Miranda decision arose in the cive, resulting in confessions that
it confessions of It isn’t surprising that, accord- context of a police interrogation. The are not only involuntary but false.
guilt. Those tac- ing to The Innocence Project, more requirement of a Miranda warning is Providing a Miranda warning before
tics twist words, than a third of criminal exonerations strongest when the interrogation is an interrogation at school should be
Scott J. Limmer turn the truth involving minors have involved false conducted by an officer who is sum- a key safeguard to assure that admis-
on its head, and confessions.9 Reid training may con- moned to the school. Courts will gen- sions may be used as evidence in court.
produce results tribute to that problem because, as erally apply the Miranda decision to Omitting a Miranda warning strength-
that can be used against students in one study found, administrators who interrogations conducted by a school ens a student’s argument that her
disciplinary proceedings or criminal receive interrogation training are more resource officer (SRO) who works for statements cannot be used against her
prosecutions. likely to believe false confessions and the police department. because they were the product of coer-
Interrogation Training less likely to recognize that coercive Interrogations in school settings cion rather than a voluntary decision
In a school setting, interrogations interrogation of suggestible subjects
might be conducted by a police officer produces false confessions.10
who is summoned to the school by What is a Student to Do? The right to remain silent exists whether or not a Miranda
administrators. They might also be Students are not always aware that warning is given. Unless a suspect has been warned, however,
conducted by a law enforcement offi- they have the right to remain silent,
cer assigned to the school, sometimes and school administrators are reluc- the suspect might not be aware of the right or might not realize
known as a liaison officer or school tant to advise them of that right.
resource officer (SRO). In some cases, administrators do not that remaining silent is the best course of action.
Police officers as well as school believe the right applies to students.
administrators may adopt strong inter- The law is regrettably muddled are increasingly conducted by school
rogation techniques. One news source regarding the extent to which to answer questions.
administrators. Do they have the same
reports that hundreds of school admin- constitutional rights apply to students Students who face an interrogation
obligation as a police officer to pre-
istrators employ an interrogation tech- in a school setting. Still, there are some at school are in a difficult situation.
cede a custodial interrogation with a
nique, the Reid technique, described basic principles that students and Whether or not they receive a Miranda
Miranda warning?
as “a nonviolent but psychological- administrators should understand. warning, students have the right to
In many contexts, courts have lim-
ly rigorous process that is designed remain silent. That right is useless if
… ‘to obtain an admission of guilt.’”1 The Right to Remain Silent ited the constitutional rights that are it is not exercised. In most situations,
available to students, particularly in students should insist on speaking to
This technique includes baiting the Miranda v. Arizona requires the elementary and secondary education.
subject with supposedly incriminating police to tell a suspect that the suspect their parents, a lawyer, or both before
The right to free speech, to freedom of answering questions about potential
evidence, asking his or her opinion on has certain rights, including the right the press, and to be free from search-
potential punishment and not letting to remain silent and the right to have wrongdoing. That is the only way they
es conducted without a warrant have can be sure of protecting their right to
up if the student starts to react emo- an attorney present during question- all been restricted in a school setting.
tionally.2 ing. 11 The police are only required to be free from coerced confessions, and
School officials can search a locker of avoiding the false confessions that
The technique also claims to teach give a Miranda warning if two con- because (courts have reasoned) the
educators to determine from a stu- ditions exist. First, the police intend coercive interrogations may produce.
locker belongs to the school, not the
dent’s “body language” whether the to question the suspect. Second, the Scott J. Limmer concentrates his practice
student, and the need to maintain
student is lying.3 Television shows not- suspect is in custody.12 on criminal defense and college disciplinary
discipline in a school outweighs the law. He is also the co-host of the podcast
withstanding, studies prove that using Sometimes a person is “in custody”
privacy rights of the student. 16 “Reboot Your Law Practice,” which can be
body language to decide whether an even if the person has not been arrest-
Still, the Constitution imposes obli- found at www.lawreboot.com. Scott can be
answer is truthful is about as reliable ed. The general standard is that a per- reached at Scott@Limmerlaw.com
gations upon the government to protect
as flipping a coin.4 son is “in custody” when no reasonable
person would believe that she is free the constitutional rights of all indi-
Yet some educators become con- 1. Douglas Starr, Why Are Educators Learning
to walk away from the police officer. 13 viduals, including students. In public
vinced that when (for instance) a stu- How to Interrogate Their Students?, The New
dent looks up and to the left, the stu- The right to remain silent exists schools, at least, school administrators Yorker (Mar. 25, 2016), https://goo.gl/pqeNxM.
dent is lying (when in fact, the student whether or not a Miranda warning are hired by the government to exer- 2. Id.
cise governmental authority. School 3. Id.
might be searching her memory or is given. Unless a suspect has been 4. Joe Navarro, The Truth About Lie Detection,
trying not to cry). Administrators may warned, however, the suspect might administrators are not police officers, Psychology Today (Mar. 15, 2012), https://goo.
be told that slumping or slouching is a not be aware of the right or might not but when they carry out a police func- gl/93heXJ.
tion (by, for instance, interrogating a 5. Starr, supra.
sign of lying, when slouching is practi- realize that remaining silent is the 6. Melissa B. Russano, Christian A. Meissner,
cally a lifestyle for many teens.5 best course of action. student suspected of a crime), there is Fadia M Narchet, & Saul Kassin, Investigating
Serious questions need to be asked good reason to think that they should True and False Confessions Within a Novel
about the wisdom of training admin- Miranda in the Classroom be bound by the same constraints that Experimental Paradigm, Psychological Science,
June 1, 2005 at 481-486.
istrators to perform the job of police When a student is interrogated in a apply to police officers, including the 7. Julia Shaw & Steve Porter, Constructing
officers. school, whether the student is “in cus- obligation to give a Miranda warning. Rich False Memories of Committing Crime,
tody” is often unclear. An adult teacher Unfortunately, most courts have Psychological Science, Jan. 14, 2015, at 291–301.
The Perils of Interrogation who is called into a principal’s office concluded that the same rationale they 8. Starr, supra n.2.
9. Garrett, supra n.6.
Unfortunately, interrogation tac- and questioned might well feel free use to justify the curtailment of other 10. Drake Bennett, The Dark Science of
tics that are designed to obtain an to leave, while a student in the same rights by school officials — the need for Interrogation, Bloomberg (Feb. 12, 2015), https://
discipline in a school setting and the goo.gl/qJSg6T.
admission of guilt, too often obtain an situation is much more likely to believe 11. Miranda v. Arizona, 384 U.S. 436 (1966).
admission even when the student is that leaving is not an option. fact that schools operate in a parental 12. Oregon v. Killitz, 651 P.2d 1382, 1383 (Or. Ct.
not guilty.6 When an innocent person The Supreme Court has required role while school is in session — also App. 1982).
is persuaded that punishment is inevi- courts to apply the definition of “cus- relieve school officials of the obligation 13. Thompson v. Keohane, 516 U.S. 99, 112
(1995).
table, a false confession and expression tody” from the student’s perspective.14 to give students a Miranda warning 14. J.D.B. v. North Carolina, 564 U.S. 261,
of remorse is may be seen as the best When the student is called to the prin- before interrogating them.17 275–76 (2011).
way to minimize punishment for some- cipal’s office, questioned by a police Even when a law enforcement offi- 15. Id.
16. New Jersey v. T.L.O., 469 U.S. 325, 342
thing that the accused did not do. officer in that office with the door cer is present, a fact that heightens (1985).
Coercive interrogation techniques closed, and is not told that he is free the coercive nature of the interroga- 17. Id.
may also cause the accused to doubt to leave at any time, a court might tion, some courts have decided that 18. Commonwealth v. Snyder, 597 N.E.2d 1363,
his or her own innocence. One recent conclude that the interrogation was no Miranda warning is needed if the 1369 (Mass. 1992).
19. J.D. v. Commonwealth, 591 S.E.2d 721, 723
study concluded that coercive interro- custodial. A reasonable student who administrator, rather than police offi- (Va. Ct. App. 2004).
gation can cause the accused “to visu- is questioned by a police under those cer, conducts the interrogation. 18 Some 20. Snyder, 597 N.E.2d at 1369.
Criminal Law
Sealing of Criminal Records:

Apply Alone, at Your Own Risk
On October 7, 2017, Criminal Procedure last conviction to the impact sealing
Law (CPL) § 160.59 went into effect. will have on public safety.18 If a
This section of the CPL deals specifically defendant is successful and a judge or
with “Sealing of Certain Convictions.1” court orders the defendant’s records to
Section 160.59 be sealed, all official records and papers
provides that a relating to the arrest and conviction are
form application sealed. Or are they? Subdivision 8 indi-
must be made cates that records related to any arrest
available to defen- or conviction “shall be sealed and not
dants so that they made available to any person or public
may apply for or private agency except as provided for
sealing on their in subdivision nine of this section….19”
own.
The question becomes, who can see
This article
records after they are sealed? Pursuant
endeavors to
to subdivision 9, sealed records will be
explain what con-
victions can and made available to the defendant (or the
Seth I. Koslow defendant’s designated agent); any state
cannot be sealed,
how to apply for or local agency that is responsible for the
sealing of a con- issuance of gun licenses (if the defendant
viction, what factors courts consider has applied for a gun license); prospective
when reviewing an application for seal- Grand Larceny in the Third degree (including sealed records) to determine employers (if the defendant has applied
ing and what happens when sealing could also apply for sealing, since only if that person is, in fact, eligible for for a job as a police or peace officer); the
is granted. The article also points out one of those convictions is a felony sealing.12 It should also be noted that Federal Bureau of Investigations and
where the pitfalls lie. and both convictions are eligible for CPL § 160.59 authorizes the courts to “qualified agencies.”20 A qualified agency
sealing. review criminal history from the Federal is defined in Executive Law § 835, but
Some Offenses Cannot Be Sealed Another point relevant for attor- Bureau of Investigation regarding con- essentially, qualified agencies include
Criminal Procedure Law § 160.59(1) neys and defendants is that subdivi- victions in other jurisdictions.13 most law enforcement agencies.21
(a) seems to define what offenses can sion (1)(a) provides “where the defen- Subdivision 3 of CPL § 160.59 pro- Finally, §160.59 of the Criminal
be sealed.2 However, in reality, this dant is convicted of more than one vides eight situations which will require Procedure Law provides that a person’s
section actually defines what offenses eligible offense, committed as part immediate denial of a defendant’s appli- right to apply for sealing cannot be
cannot be sealed, thus rendering all of the same criminal transaction… cation. Those situations include if the waived as part of a plea agreement.22 In
other “crimes[s] defined in the laws of those offenses shall be considered defendant is required to register as a other words, a District Attorney cannot
this state” eligible for sealing.3 So what one eligible offense.6” This is espe- sex offender pursuant to article Six C of condition a plea bargain on a person
crimes under the Penal Law cannot be cially important when, for example, a the Correction Law; the defendant has promising not to apply for sealing in the
sealed? defendant in Nassau County, who is already obtained sealing for the maxi- future. It should be noted that convic-
• Sex Offenses defined in Art. 130 required to plead guilty to a Felony mum number of convictions allowable tions that are sealed are still considered
• Sexual Performance by a Child Aggravated Unlicensed Operation of under CPL § 160.58; the defendant has for the purposes of enhancing penalties.
Offenses defined in Art. 263 a Motor Vehicle and a misdemeanor already obtained sealing for two eligible
Furthermore, if a prior conviction is
• Felony Homicide, Abortion Driving While Under the Influence offenses; the requisite time period has
an element of a charged crime, then a
and Related Offenses (not of Alcohol also has a previous convic- not elapsed (at least ten years since the
Misdemeanors) defined in Art. imposition of sentence for latest convic- sealed conviction would still be consid-
tion for Misdemeanor Possession of a
125 Controlled Substance. In this scenario, tion); the defendant has an open arrest ered.23
• Violent Felony Offenses defined the defendant would still be permitted or pending charges against him or her; Criminal Procedure Law § 160.59
in § 70.02 to apply for sealing even though he or the defendant was convicted of any crime allows for the sealing of most convic-
• Any Class A Felony Offense she was convicted of more than two after the date of entry of judgement for tions. The new law specifically requires
• Felony Conspiracy Offenses (not eligible offenses. the last conviction that sealing is being that a form application be made avail-
Misdemeanors) defined in Art. applied for; failure to provide a sworn able to defendants so they may apply for
105, so long as the underlying Application for Sealing statement as to the reasons why a the sealing on their own. The statute con-
offense is not an offense that In order to apply for sealing, CPL § court should grant sealing; or the defen- tains countless nuances and intricacies.
can be sealed 160.59 requires certain documentation. dant has been convicted of two or more
• Attempts to Commit an Offense, The documents required include a cer- felonies (or more than two crimes).14 Seth I. Koslow, Esq. is the Founder of
if it is a felony to attempt to do tificate of disposition; a sworn statement Once the application has been received SIK Law, located in Syosset, which han-
so, and the offense attempted, from the defendant indicating if the cli- by the court and it has been determined dles Criminal Defense and Family Matters
if completed, would not be eli- ent has, has not or will not be applying that the application need not be denied throughout Long Island and New York City.
gible4 for sealing of other eligible convictions outright, for any of the reasons stated Mr. Koslow is a former Queens County
• Offenses listed in Art. 6C of the (remember, no more than two convic- previously, the court will wait the requi- Assistant District Attorney and a mem-
Correction Law, which require tions can be sealed); a copy of any other site 45 days for the District Attorney to ber of the New Lawyers and Association
registration as a sex offender applications for sealing that have been file an objection. If the District Attorney Membership Committees of the Nassau
County Bar Association.
Essentially, this section of the CPL previously made; a sworn statement as does file an objection the court must
allows all but the most serious of to the conviction(s) for which sealing is grant a hearing on the application.15 1. See: CPL § 160.59.
offenses to be sealed. In other words, being requested; and finally, a sworn While CPL § 160.59 does not indicate 2. Id.
even if a person has a felony convic- statement of the reasons why the court how the hearing is to proceed, it does 3. Id.
tion, provided it is does not fall into should grant sealing.7 state that the court shall conduct a hear- 4. For example: Attempted Murder is a felony,
one of the categories listed above, that After the application is completed it, ing “in order to consider any evidence and had the Defendant completed the crime
(Murder) he would not be entitled to sealing.
conviction can be sealed under this along with supporting documentation, offered by either party that would aid Therefore, the attempt conviction is not sealable.
new law. While § 160.59 allows for must be filed with the court and a copy the sentencing judge in his or her deci- 5. CPL § 160.59(2)(a).
the sealing of most types of criminal of the application must be served on the sion whether to seal the records of the 6. CPL § 160.59(1)(a).
convictions, it limits the number of District Attorney’s Office in the coun- defendant’s convictions.16” The statute, 7. CPL § 160.59(2)(b).
convictions a person can have sealed. ty or counties where the conviction(s) however, fails to define how the hear- 8. CPL § 160.59(2)(c).
9. Id.
Subdivision (2)(a) mandates that “a occurred.8 The District Attorney’s Office ing is conducted, what evidence can be 10. Id.
defendant who has been convicted of will then have 45 days to notify the court introduced and what rules apply to such 11. Id.
up to two eligible offenses but not more if he or she objects to the sealing.9 In a hearing. In the event that the District 12. Id.
than one felony offense may apply” for general, the application will be assigned Attorney’s Office does not object to the 13. CPL § 160.59(2)(d).
14. CPL § 160.59(3)(a)-(h).
sealing.5 to the same judge that levied the sen- application, it becomes the province of 15. CPL § 160.59(6).
For example, a person convicted of tence for the conviction(s).10 However, if the judge to determine if sealing should 16. Id.
Assault in the Third Degree and Petit more than one application is filed, those be granted.17 Subdivision 7 of CPL § 17. CPL § 160.59(7).
Larceny can apply to have both convic- applications will be assigned to County 160.59 provides some relevant factors 18. Id.
tions sealed because both charges are or Supreme Court.11 that the court may consider. The factors 19. CPL § 160.59(8)(emphasis added).
20. CPL § 160.59(9)(a)-(e).
misdemeanors and both are eligible for Upon receipt of the application the that the court may consider include 21. Exec. Law § 835.
sealing. Similarly, a person convicted court will then request fingerprint based everything from the amount of time 22. CPL § 160.59(11).
of Assault in the Third Degree and criminal history records of the defendant that has elapsed since the defendant’s 23. CPL § 160.59(10).
LIBN—CLE centerfold November 2017
14size
Paper n November 2017 image
23” x 15”; n Nassau Lawyer
size 21.25 x 13.25
Program Calendar
NASS
NOVEMBER 2017 November 21, 2017 November 30, 2017
November 17, 2017 Dean’s Hour: Preventing Fraud in The 411 on Local Government -
11:00 am – 4:00 pm the Law Firm Setting Working through Zoning,
Business of Law Conference : Lecture and Networking Conference With the NCBA General, Solo and Building, and Parking Issues
for the Solo and Small Practitioner Small Law Practice Management (Seminar name changed from
This program is sponsored by: Committee Dealing with Local Government)
NCBA Corporate Partner Champion Office Suites Sign-in 12:30PM; Discussion 1:00- With the NCBA Community
Tradition Title Agency, Inc 2:00PM Relations and Public Education
All Covered – IT Services from Konica Minolta 1 credit in ethics Committee
DoctorPromo Promotions 6:30-8:00PM
November 28, 2017 Program is free to attend.
Northwestern Mutual
Alphabet City: JD and LGBTQ Optional 1.5 CLE credit available
NGH Group, Inc. for purchase of $30. CLE credit is
Issues***
3.5 credits in professional practice. Lunch is included. With the NCBA Family Court Law free for current Domus Scholars.
and Procedure Committee and the This program also qualifies for
Registration fees: Assigned Counsel Defender Plan Inc. of skills credit for newly admitted
$FREE Domus Scholar Circle Nassau County attorneys.
$100 NCBA Members 5:30-8:30PM
$150 Non-Members 3 credits in professional practice DECEMBER 2017
Program is also open to law firm administrators. Please call ** This program satisfies the new December 6, 2017
516.747.4464 to register. CLE rule $1500.22 for experienced Dean’s Hour: New York Paid
attorneys to include one credit Family Leave Benefits Law
hour in diversity and elimination With the NCBA Women in the Law
of bias effective July 1, 2018. Committee
Experienced attorneys due to re- Sign-in 12:30PM
register on or after July 1, 2018 Discussion 1:00-2:00PM
must meet this requirement. 1 credit in professional practice
or skills
November 29, 2017
Rise ‘n’ Shine (Out to Lunch) December 8, 2017
Lecture Series Presents: Annual School Law Conference
New Partnership Audit 2017
Regulations Require Changes With the NCBA Education Law
For ALL Partnerships Committee
With NCBA Corporate Partner Conference will be held at the
Baker Tilly LLP Nassau County Bar Association
Sign-in 12:30PM Sign-in 8:30AM;
Discussion 1:00-2:00PM Program 9:00-3:30PM
Program is free to attend. Optional 5.5 credits in professional
CLE/CPE credit available for practice
purchase $30/each type. CLE credit *Domus Scholar Circle not
is free for current Domus Scholars. applicable for this program.
Must pre-register. 516.747.4464 or Registration fee includes
academy@nassaubar.org electronic link to material. Print
material $25 additional
November 30, 2017
Dean’s Hour: Discovery and December 11, 2017
Dollars – Using Tax Returns as a Income Tax Exemptions
Litigation Tool With the NCBA Community
This program is sponsored by Relations and Public Education
NCBA Corporate Partner Committee
Giorgenti Custom Suits 6:30-8:00PM
With the NCBA Tax Law Committee Program is free to attend.
Sign-in 12:30PM; Discussion 1:00- Optional 1.5 CLE credit available
2:00PM for purchase of $30. CLE credit is
1 credit in professional practice or free for current Domus Scholars.
skills This program also qualifies for
skills credit for newly admitted
attorneys. Must pre-register.
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Criminal Law
CPLR Update: Amendment to CPLR §503(a) Provides
an Additional Venue Option for Personal Injury Plaintiffs
On October 20, 2017, Governor CPLR §503(a) was amended to read and an NYPD officer responds. overburdened, while another has a
Cuomo signed legislation amending as follows (new language in italics): Under the amended CPLR §503(a), lighter caseload. Paul can designate
the Civil Practice Law and Rules CPLR §503(a) Generally. Except Paul could designate Queens County venue simply based upon where his
(CPLR) §503(a) where otherwise prescribed by law, the for trial.5 This additional option is case will resolve most expeditiously.
thereby availing place of trial shall be in the county in equitable for all parties, witnesses, and This serves to ease congestion in busy
plaintiffs of an which one of the parties resided when could even benefit the courts. courts, and may generally hasten liti-
additional option it was commenced; the county in which Firstly, under the prior CPLR gation throughout New York.
for venue when a substantial part of the events or omis- §503(a), Paul must commence his
commencing sions giving rise to the claim occurred; action in Suffolk County, regardless Conclusion
an action.1 The or, if none of the parties then resided in of where the collision occurred. This The CPLR §503(a) amendment is a
amended law, the state, in any county designated by prior rule precluded a Queens jury significant and equitable change in the
which applies the plaintiff. A party resident in more from hearing the case, even though law. This amendment avails parties of
to actions com- than one county shall be deemed a res- a Queens jury is more familiar with better equipped juries, is more conve-
menced after ident of each such county.3 Queens traffic and the perils of Queens nient for witnesses, and may acceler-
October 23, 2017, Boulevard. A jury’s familiarity with
more closely Benefits to Parties, the accident scene would equitably
ate litigation throughout New York.
John Coco resembles venue Witnesses, & Courts serve both Paul and Donna’s interests, John Coco is Chair of the Plaintiff’s
rules for causes Prior to this amendment, New York and is now an option for Paul under Personal Injury Committee at NCBA and
founder of the Law Offices of John Coco, a
of action against residents were required to designate the new law. personal injury firm. John can be reached at
municipalities and public authorities venue in a county of a party’s residence Secondly, this amendment pro- 516-224-4774 or jcoco@johncocolaw.com.
where the location of an injury may when the action was commenced.4 This vides for the convenience of witnesses
dictate venue.2 restriction could result in deleterious to an accident. In our example, the 1. The Bill, S6031/A8032 was sponsored by
Under the amended CPLR §503(a), effects for all involved in the litigation. police officer works in Queens, and Senator Michael H. Ranzenhofer and Assembly
plaintiffs may now designate venue For example, assume an individual the eyewitness lives in Queens. Here, member Linda B. Rosenthal.
2. See CPLR §§ 504, 505.
based upon the location where the is injured in a motor vehicle collision a Queens County trial would be more 3. CPLR §503(a) as amended effective as of
cause of action arose, in addition to in Queens County when the defendant, convenient for both the police officer October 23, 2017.
the county of a party’s residence when Donna, crashes into the plaintiff, Paul, and witness than a Suffolk County 4. CPLR §503(a) also allows a plaintiff to desig-
the action is commenced. While this on Queens Boulevard. Further assume trial. It stands to reason that witnesses nate a county for venue when none of the parties
to the action reside within the state.
article focuses solely on personal injury that both Paul and Donna reside in to an accident often live or work near 5. Under CPLR §503(a), the Plaintiff can choose
litigation, the new law applies to com- Suffolk County. A man emerging from an accident scene. the county of residence of a party for venue. This
mercial and other cases as well. his apartment witnesses the crash, Lastly, a particular court may be portion of the CPLR §503(a) remains unchanged.
DEDICATED ...
past presidents who continue to pro-
NCBA
vide service and leadership for three
Continued From Page 1 or more years after their term as
president.
and class.” A Legal Pioneer
“Thank you for the honor of nam-
ing this room after us, but it really
isn’t just about the two of us,” Judge
Hon. Marie Santagata is well-
known as a champion of justice in
Sustaining Members
2017 - 2018
Santagata responded. “It’s about this Nassau County and as a legal pioneer
building, the traditional Toast to for women, the Bar Association and the
Domus and everything for which the community. Before there was a public
Bar Association stands. Our building defender system in New York, Judge
is a key part of NCBA’s history.” Santagata organized lawyers to repre-
“The Nassau County Bar sent indigent youthful defendants in
Association energizes our members district court. As Supervising Judge of Every year thousands of attorneys renew their membership
all criminal courts in Nassau County,
every single day.” she commented.
“At Domus, we can talk about our she instituted time and cost-saving
in the Nassau County Bar Association. In addition to dues,
families and areas of the law. We may innovations still in use today. some members show their appreciation to the NCBA by
be adversaries in court, but at Domus Judge Santagata founded and served
we’re all colleagues.” as the first chair of the Nassau County making a special contribution and becoming a
Youth Board. She wrote booklets to
Modernizing For Today’s Needs explain legal issues for young people
Sustaining Member.
The Presidents Room replaces the
Tech Center, which was created in
and on how to close a law practice for The NCBA is grateful for these individuals who strongly
lawyers near retirement and families
1994 to provide hands-on training for of lawyers unable to do so themselves. value the Nassau County Bar Association’s mission and its
members to learn the latest computer She served as the first Executive
skills and legal research techniques. Director of the Nassau County Crime contributions for the betterment of the legal profession.
Advancements in technology eventu- Council and developed programs to
ally superseded this use. Last year,
newly elected Board Member Maureen
assist and rehabilitate criminal defen- Martin P. Abruzzo Alan B. Hodish
dants. She was also instrumental in
Dougherty volunteered to join a task establishing a criminal justice pro- Mary Ann Aiello Warren S. Hoffman
force, along with fellow board member Mark E. Alter James P. Joseph
gram at C.W. Post. At NCBA, she
Michael A. Markowitz and Executive
Board Member Richard D. Collins,
was the first woman to serve as Chair Leon Applewhaite Elena Karabatos
of the Grievance Committee and the
to make recommendations on how to
first woman to serve on the Board of Ernest T. Bartol Zachary E. Kitton
revitalize the room and obtain the
needed funding. “Because of her love Directors. Jack A. Bennardo Hon. Susan T. Kluewer
of the law and her involvement with In recognition of her great impact on Allan S. Botter Martha Krisel
the administration of justice in Nassau
and service to the Bar Association for
County and her dedicated service to Howard R. Brill Donald F. Leistman
many decades, we decided to approach
Judge Santagata,” Dougherty said. the professional public, in 1998, the Neil R. Cahn Gregory S. Lisi
The Task Force accomplished three NCBA presented Judge Santagata with Robert M. Calica Hon. Roy S. Mahon
its highest award, the Distinguished
objectives: it created additional space
Service Medallion. Ralph A. Catalano Shalom S. Maidenbaum
to meet the growing needs of the
Alan W. Clark Peter J. Mancuso
membership, commemorated the con- Leadership History
tributions of NCBA’s Past Presidents Hon. Leonard S. Clark Michael R. Martone
and provided the necessary funding to The Past Presidents Room dis-
complete the project. On October 10, plays 30 portraits from M. Hallstead Richard D. Collins John P. McEntee
President Leventhal, Judge Santagata Christ (1970-1971) to Joel Asarch Eileen C. Daly Christopher T. McGrath
and Dougherty cut the ceremonial rib- (1999-2000). (The more recent Past John M. Daly Anthony J. Montiglio
bon to officially open the Frank J. & Presidents’ portraits are displayed
Marie G. Santagata Past Presidents in the main lobby hallway.) One sec- Frank G. D’Angelo Linda G. Nanos
Room. tion is dedicated to Frank Santagata John P. DiMascio Hon. Michael L. Orenstein
A Visionary Leader
with photos and articles on his many John P. Dimascio, Jr. Gary Petropoulos
accomplishments.
Frank Santagata served as NCBA “Marcus Christ’s portrait used to Thomas P. Dougherty Michael E. Ratner
President from 1983-1984. He led hang over the fireplace in the Great Hon.Dorothy D. T. Eisenberg Edward T. Robinson III
the Association in establishing the Hall,” Judge Santagata remembered. Charo Ezdrin Hon. Marie G. Santagata
nationally lauded pro bono Volunteer “He always said that, as lawyers, we
Lawyers Project in partnership with should never appear before a group Bernard Feigen Stephen W. Schlissel
Nassau Suffolk Law Services. Last of people without giving a message. Jordan S. Fensterman Hon. Denise L. Sher
year, the Project handled more than
1200 cases in Nassau County, assist-
Frank always gave the same mes- Samuel J. Ferrara Hon. Peter B. Skelos
sage: that our Constitution, Bill of
ing approximately 3,200 residents in Rights and our system of justice are Lawrence R. Gaissert Ira S. Slavit
practice areas including eviction pre- the envy of the world. My message is Domingo R. Gallardo Hon. Arthur D. Spatt
vention, landlord-tenant, matrimonial
and family law, consumer protection
always different and present to the Marc C. Gann Hon. Joseph J. Sperber
moment.”
and bankruptcy. Judge Santagata listed 3 current Eugene S. Ginsberg Michael F. Sperendi
Past President Santagata also led issues NCBA members should exam- Frank Giorgio, Jr. Sanford Strenger
the Association in establishing arbitra-
tion tribunals in what is now NCBA’s
ine - privatization of the jails, the John J. Giuffre Claire Talwar
proposed New York State constitu-
Alternative Dispute Resolution pro-
tional convention, and how to bring Douglas J. Good Thomas A. Toscano
gram, and he incorporated the NCBA
Speakers Bureau into the Nassau back public confidence in their lead- Robert S. Greco Hon. Joy M. Watson
Academy of Law. ers. “You have to pressure the people Hon. Frank A. Gulotta, Jr.
Having served as a Westbury Village who have power to make sure the
Justice for 30 years, and as president candidates for office have a record for
serving the public and not their own
of the Nassau County Magistrates
Association from 1978-1979, Frank aggrandizement,” she emphasized.
An active member of the Nassau
To become a Sustaining Member
Santagata remains a singular role
model for the judges of the village
courts. In 1997, the Magistrates named
Bar Association for 56 years, Judge
Santagata’s devotion is evident, Please contact the
always encouraging members to step
their highest award in his honor,
the Frank J. Santagata Award for forward to make a difference.
“I know what it means for a Bar
NCBA Membership Office
Ethics, Professionalism and Devotion
to Equal Justice Under the Law.
After his death in 1996, the Nassau
member to work all day, and then
come here to discuss and contemplate
(516)747-4070
County Bar Association established weighty problems and to make deci-
the Frank J. Santagata Distinguished sions,” she said. “I am truly proud to
Past President Award to recognize be a member of this Association.”
THE WE CARE FUND We Care

Presents
GINGERBREAD UNIVERSITY We Acknowledge, with Thanks,
Contributions to the WE CARE Fund
DONOR IN HONOR OF
Marilyn K. Genoa A. Thomas Levin, Barbara J. Mehrman
Commitment to Justice Award Recipient
Adrienne Flipse Hausch Hon. Randall T. Eng, congratulations on his
Saturday, December 9, 2017 retirement
2 Sessions DONOR
Joanne & Frank Gulotta, Jr
WISHES FOR A SPEEDY RECOVERY
Hon. John G. Marks
Nassau County Bar Association
15th & West Streets, Mineola DONOR
Ellen Birch, Realtime Reporting, Inc.
IN MEMORY OF
Elaine Broder, mother of Gail Broder Katz
Hon. Angelo A. Delligatti Peter J. McBride
Enrollment is limited, Marilyn K. Genoa
Hon. Steven & Peggy Jaeger
Jack Abeshouse, father of David Abeshouse
Murray Seeman
reserve your place today! Jay A. Marshall
Hon. Elaine Jackson Stack
Elaine Broder, mother of Gail Broder Katz
Philip Reany
Children of all ages will delight in the fun and creativity Charlene J. Thompson Verona Thompson
decorating their own gingerbread houses at the annual IN HONOR OF HECTOR HERRARA, IN MEMORY OF JON N. SANTEMMA,
Gingerbread University Holiday Workshop 2017 HISPANIC HERITAGE BELOVED HUSBAND OF CAROL M.
at the Nassau County Bar Association. AWARD RECIPIENT HOFFMAN & PAST PRESIDENT
Ellen Birch, Realtime Reporting, Inc. OF THE NASSAU COUNTY
Hon. Carnell T. Foskey BAR ASSOCIATION
Upon completion of the University’s curriculum, Marilyn K. Genoa Bruce J. Bergman
Joanne & Frank Gulotta, Jr.
a diploma and degree in “Gingerbreadology” Adrienne Flipse Hausch
Hon. Angelo A. Delligatti
Meryl & Stephen Gassman
will be granted to each child. Christopher T. McGrath Marilyn K. Genoa
Susan Katz Richman Patricia & Frank Giorgio, Jr.
Hon. Denise Sher Eugene S. Ginsberg
Light refreshments will be served. Douglas Good
IN MEMORY OF BRIAN R. FISHKIN, Long Island Labor & Employment
FATHER OF GREG FISHKIN & Relations Association
BROTHER-IN-LAW OF Thomas Maligno
--------------------------------------------------------------------------------- HON. ARTHUR M. DIAMOND Kenneth L. Marten
& JODY C. PUGACH Christopher T. McGrath
Grace D. Moran
Ellen Birch, Realtime Reporting, Inc.
Susan Katz Richman
GINGERBREAD UNIVERSITY REGISTRATION Elena L. Greenberg
Edward T. Robinson, III
Hon. Denise Sher
Hon. Denise Sher
Name__________________________________________ Hon. Elaine Jackson Stack
IN MEMORY OF ROCCO SAVINO, Hon. Joy M. Watson
FATHER OF WILLIAM M. SAVINO
Tel#__________________Email____________________ Ellen Birch, Realtime Reporting, Inc.
Joanne & Frank Gulotta, Jr.
TOTAL # OF CHILDREN ATTENDING__________ Kenneth L. Marten
Session Attending: ____ 9:30 a.m. - 11:30 a.m.

Checks made payable to
____ 1:00 p.m. - 3:00 p.m.
Nassau Bar Foundation — WE CARE
REGISTRATION FEE:
¨ $45.00 per child Contributions may be made by mail:
¨ $45.00 “Take Out” Kit NCBA Attn: WE CARE
I cannot attend but will sponsor: 15th & West Streets Mineola, NY 11501
¨“Rudolph” ($25.00 donation)
¨“Santa” ($50.00 donation)
TOTAL $___________
¨ Check Enclosed (Payable to Nassau Bar Foundation)
¨ Credit Card
¨MC ¨VISA ¨ AMEX
Name on Card__________________________________ WE CARE
Card #_________________________________________ Thanksgiving Day
Billing Zip Code_________________________
Exp. Date____/_____Security Code_________ Luncheon for Seniors
Thursday, November 23, 2017
Mail registration form to: 11:00 a.m. - 1:00 p.m.
WE CARE Fund at the Nassau County Bar Association
15 & West Streets, Mineola, NY 11501
Att: Gingerbread University To recommend Seniors who are alone for the holiday, contact:
Jody Ratner
Questions? (516)747-4070 x226
Contact Jody Ratner (516)747-4070 x226 or jratner@nassaubar.org jratner@nassaubar.org
Please Support the NCBA LAW YOU SHOULD KNOW

2017-2018 LAW YOU SHOULD KNOW
on 90.3 FM WHPC
CORPORATE PARTNERS Celebratong 25 Years!
Hosted by: Kenneth J. Landau, Esq.
Shayne, Dachs, Sauer & Dachs, LLP • Mineola
Assured Partners Northeast/ Tips for Marketing Using Search Terms on Google*
CBS Coverage Wed • Nov 15, 2017• 3 p.m.
or Sun • Nov 19, 2017 • 7 a.m.
The Role of the Legal Nurse Consultant
Baker Tilly Wed • Nov 22, 2017 • 3 p.m.
or Sun • Nov 26, 2017 • 7 a.m.
(New) Leave Laws for Employees*
Champion Office Suites Wed • Nov 29, 2017 • 3 p.m.
or Sun • Dec 3, 2017 • 7 a.m.
Fighting Traffic Tickets
Giorgenti Custom Clothing Wed • Dec 6, 2017 • 3 p.m.
or Sun • Dec 10, 2017 • 7 a.m.
Becoming a Paralegal as a First or Second Career
PrintingHouse Press Wed • Dec 13, 2017 • 3 p.m.
or Sun • Dec 17, 2017 • 7 a.m.
Tax Tips and Avoiding Problems with the IRS*
Wed • Dec 20, 2017 • 3 p.m.
Realtime Reporting or Sun • Dec 24, 2017 • 7 a.m.
*You can earn CLE by listening to broadcast, podcast (or purchasing CDs) of
these shows. Check with the
RVM Nassau Academy of Law for the details
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On 90.3 FM radio or voicestream over the internet
at www.ncc.edu/whpc
or search “WHPC” on iTunes for Podcast
Criminal Law
The Cost of Incarceration Education:

Education Yes, a Job…Maybe
On August 8, 2017, Governor lent felonies.7 A 10-year waiting period, legislation. In its wake, over 150 cities of rehabilitation.
Andrew Cuomo and Manhattan District running from the date of conviction or and counties have instituted laws pro-
Attorney Cyrus Vance Jr. announced a release from prison, applies.8 Record hibiting any line of initial questioning Getting What We Pay For
$7.3 million award to fund college class- sealing makes unavailable to any per- with respect to prior convictions. 19 The extent to which incarceration
es at 17 New York State prisons over the son or public or private agency, all Alongside the “Ban the Box” cam- educational funding will impact future
next five years.1 official records concerning arrests, pros- paign, the 2015 New York City Fair employment opportunities is largely
This investment ecutions and convictions.9 Chance Act prohibits all employers in unknown. Certainly, recent law devel-
in college-level the city from asking about a job appli- opments and social programs support a
education and Gaps in the “Sealed” Envelope cant’s conviction record until after a trend toward giving formerly incarcer-
reentry services Sealing is not an automatic right job offer is made. Also concurrent with ated individuals, and those with crim-
in New York pris- under all circumstances, and thus does the Criminal Procedure Law and pub- inal histories, the best chance possible
ons will create not guarantee a favorable employment lic policy changes, the Human Rights to succeed. However, workplace, com-
more than 2,500 outcome. Accordingly, the law does Law, N.Y. Exec. Law § 296(16), prohib- munity safety and best use of funds
seats for col- not provide for the sealing of crimi- its public and private employers and remain primary concerns. The effica-
lege-level educa- nal records to individuals convicted of occupational licensing agencies from cy of incarceration educational spend-
tion and training more than one felony;10 individuals who asking about, or taking adverse action ing will best be determined by close
for incarcerated have exceeded the maximum allowable (i.e. denying employment or licensure) studies of those individuals who have
New Yorkers. number of “sealings” under the law;11 because of any arrest that did not received such education, and their sub-
Nicole Lubell Reducing crim- or those with pending charges or who result in a conviction, or that terminat- sequent employment success. It is the
inal behavior have been convicted after the last con- ed as a youthful offender adjudication; hope that despite the risk of recidi-
through col- viction for which sealing is sought.12 or that resulted in a sealed convic- vism, many individuals now educated
lege-level education programs at pris- Further, certain factors, subject to tion, including violations, infractions, with a new skill or academic degree,
ons is a part of Governor Cuomo’s judicial discretion, can impact sealing and misdemeanors and felonies sealed will start on a clean slate. They offer
“Right Priorities Initiative,” a “common and subsequent employment chances. under the 2009 Drug Law Reform Act. the promise of becoming productive
sense criminal justice reform package.” Particularly relevant factors include the While not the subject of extensive anal- society members who can not only sup-
The new measure utilizes criminal impact of the sealing upon the defen- ysis here, important to mention is the port themselves and their families, but
asset forfeitures to help expand higher dant’s rehabilitation and his or her U.S. Equal Opportunity Commission also contribute meaningfully to their
education inside prisons.2 successful and productive reentry and Enforcement Guidance, Consideration community. Money aside, there can
reintegration into society, as well as of Arrest and Conviction Records in be no better education and deterrent
The Right Priority at the Right Price? the impact of the defendant’s record on Employment Decisions Under Title VII to future crime than sharing real-life
Supporters of the expenditure argue public safety and the public’s confidence of the Civil Rights Act of 1964,20 a success stories, which will undoubtedly
that providing education in prisons in the defendant’s respect for the law.13 resource for further inquiry. provide hope to those without it.
is crucial in preparing for successful Finally, despite their sealed status, Opponents to “Ban the Box” and other
reentry into the community, reducing criminal records remain available to employment fair chance policies argue Nicole Lubell is a former Assistant Public
the rate of recidivism, and improving “qualified agencies,” including courts, that interviewing and hiring individuals Defender and Assistant City Attorney.
public safety.3 Furthermore, rehabili- corrections agencies, federal and state with criminal backgrounds should be She is an appointed member of the New
tation and reintegration are arguably law enforcement for law enforcement at the sole discretion of the employer,21 York City Bar Corrections and Community
Reentry Committee and its Educational
fundamental benchmarks of our cor- purposes and police officer employment opining that reliance on such practices subcommittee. Currently, she serves as the
rections system’s success. In this vein, screening, state agencies issuing fire- can be wasteful, unproductive and jeop- Settlement Conference Coordinator for the
prisons can and should serve to yield arm licenses, and to the FBI for firearm ardize workplace safety. Nassau County Bar Association Pro Bono
productive members of society: those background checks. And as a practical Mortgage Foreclosure Project.
who can provide support and care matter, the record sealing law does Article 23-A and Negligent
both for their families and communi- not negate the accessibility of criminal Hiring Liability 1. John Jay’s Prisoner Reentry Institute to serve
as Education and Reentry Coordinator for State
ties. Education offers the opportunity records via the internet and through The Human Rights Law also makes College-In-Prison Reentry Program; http://www.
for real life post-incarceration change, private record-keeping businesses. it an unlawful discriminatory prac- jjay.cuny.edu.
2. Governor Cuomo and Manhattan District
not only reintegration with new skills, tice to deny employment in violation
knowledge and even a degree, but Administrative Remedies of Article 23-A of the Corrections
Attorney Vance Announce Award Recipients
of $7.3 Million Investment in College-Level
critically important, a new-found con- Aside from record-sealing state leg- Law.22 Specifically, Section 752 of the Education and Reentry Services for New York
fidence and hope for the future. islation, persons with prior criminal Corrections Law makes it unlawful for State Prisons; https//www.governor.ny.gov/news/
governor-cuomo-and-manhattan-district-attor-
Some argue that prisoner educa- histories seeking employment may take public employers, occupational licens- ney-vance-announce-award-raecipients-7.3-miil-
tion is an improper use of funds and advantage of administrative remedies, ing authorities, and private employers lion.
will not have the benefits asserted. including a Certificate of Relief from with more than ten employees, to deny 3. Education from the Inside, Out: The Multiple
Benefits of College Programs in Prison
Specifically, they claim that while Disabilities14 or a Certificate of Good or terminate employment or licensure http//www.correctionalassociation.org/resource/
education for prisoners is laudable, it Conduct (CGC). 15 These certificates’ based on a previous conviction. education-from-the-inside-out-the-multpe-bene-
should not come before the education purpose is to restore rights and to effec- But exceptions to this rule apply fits-of-college-progras-in-prison/.
tuate the public policy of encouraging where there is a “direct relationship” 4. http//www.wicz.com/story/36093161/crouch-
of children. One assemblyman noted says-he-does-not-support-cuomos-plan that-of-
that, “[s]o many middle-class families the licensure and employment of con- between one or more of the previ- fers-college-courses-to-prisoners/.
struggle to make ends meet in this victed individuals.16 Essentially, they ous criminal offenses and the specif- 5. CONFER: Ban the Box with Education Not
state, let alone sending their children relieve “any forfeiture or disability,” ic license or employment sought or Regulation
http://www.niagara-gazette.com/opinion/confer-
to college. We should be focusing and “remove any barrier to employment where the issuance of the license, or ban-the-box.
on assisting them.”4 Furthermore, that is automatically imposed by law by the granting of the employment would 6. NB: The law addresses adult criminal convic-
despite the benefits of prison educa- reason of conviction of the crime or the involve an unreasonable risk to proper- tions and history only.
7. Crim. Proc. Law §160.59(2)(a).
tion, not everyone reforms. Within five offense.”17 However, some practitioners ty or to the safety or welfare of specific 8. Crim. Proc. Law § 160.59(5).
years of release, about three-quarters argue that “the certificate program is individuals or the general public.23 9. Crim. Proc. Law §160.59(8).
of released prisoners are rearrested.5 of limited value, in part because some The law further mandates that pro- 10. Crim. Proc. Law § 160.59(3)(h).
Irrespective of inmate education courts are disinclined to certify reha- spective private employers and public 11. Crim. Proc. Law § 160.58.
12. Crim. Proc. Law §160.59(3).
expenditure validity, only post-incar- bilitation as early as sentencing, and in agencies consider a plethora of rele- 13. Crim. Proc. Law § 160.59(7).
ceration employment opportunities and part because employers and others are vant factors before issuing a decision 14. Correct. Law §§ 701-703.
success can dictate its true efficacy. unwilling to rely on them.”18 with respect to granting or denying 15. Id. at §§703-a,703-b.
16. Restoration of Rights Project; http://ccre-
employment. Because a failure to
New Legislation For Sealing “Banning the Box” and Other “Fair properly consider such factors places
sourcecenter.org citing People v. Adams, 193
Criminal Records Chance” Policies the employer at risk of liability, this
Misc.2d 78 (Sup. Ct., Kings Co. 2002).
17. Correct. Law §§ 701-703.
On October 7, 2017, with an eye As part of a large, national move- is yet another reason an employer 18. Id. at 13.
19. Ban the Box: U.S. Cities, Counties and States
toward providing to persons with crimi- ment of “fair chance” policies, the may hesitate to pursue a prospective Adopt Fair Hiring Policies
nal histories the best possible chance at “Ban the Box,” campaign, so named employee with past criminal history.24 http://nelp.org/publication/ban-the-box-fair
future employment, the New York leg- for seeking to remove the employment It should be noted that the prohibi- -chance-hiring-state-and-local-guide.
20. Number 915.002, April 25, 2012.
islature enacted a new section, § 160.59, application check box regarding one’s tions provided by Article 23-A do not 21. CONFER at 2.
to Criminal Procedure Law.6 Under the criminal conviction history, delays the apply if employment disqualification is 22. Restoration of Rights Project; http://ccre-
new law, courts will have discretion to background check inquiry until later in mandated by law, and the person has sourcecenter.org at 20.
seal up to two convictions, only one of the hiring process. The campaign has not received an administrative certif- 23. Id. at 20.
24. Id. at 21 citing Acosta v. Department of
which may be a felony, for all crimes arguably been a major impetus behind icate for good conduct or relief from Education of City of New York, 16 N.Y. 3d 309,
other than sex offenses and class A vio- the creation of the New York sealing disability, which create a presumption 320 (2011).
over the testing environment, which E. Lester, a third year student at New York to call counsel from the roadway prior to the
INTOXICATION ... goes to the heart of the reliability of the
chemical tests utilized in central-test-
University School of Law, for her invaluable
assistance in preparing this article.
administration of a PBT. This is an impractical
obligation, but one that would be necessary if the
Continued From Page 7 PBT were to be placed on the same evidentiary
ing units, there can be no presump- 1. Mountain View Coach Lines, Inc. v. Storms,
plateau as the result of a chemical breath test
tion of reliability simply because of the and admissible as prima facie proof of intoxica-
alcohol content.20 People v. Krut and 102 A.D.2d 663 (2d Dept. 1984).
tion.
inclusion of a field breath test on the 2. People v. Kulk, 103 A.D.3d 1038 (3d Dept.
11. See People v. Santana, 31 Misc. 3d 1232(A)
People v. Palencia, both decided after 2013); People v. Thomas, 12 A.D.2d 73 (4th Dept.
Conforming Products List. (N.Y. Co. Crim. Ct. 2011).
the Alco-Sensor FST was included on 1986), aff’d 70 N.Y.2d 823 (1987); see also People
Thus, the trial courts which have v. Krut, 133 A.D.3d 781 (2d Dept. 2015); People v.
12. See VTL § 1194(2)(b), (c), (d) (authorizing
the Conforming Products List in 2003, sanctions for refusing a chemical test and describ-
abandoned appellate precedent in favor Palencia, 130 A.D.3d 1072 (2d Dept. 2015).
explained that the reliability of PBTs to ing the procedural mechanisms for challenging
of a reading of the VTL which requires 3. See Mountain View Coach Lines, Inc., 102
the impositions of such sanctions).
establish intoxication is not “generally A.D.2d at 664-65; People v. Brisotti, 169 Misc.2d
admission of PBT results to establish 13. see 32 CFR § 634.35.
accepted” in the scientific community. 672 (App. Term 1st Dept. 1996), lv denied 89
14. see 49 CFR § 40.3.
intoxication misapprehend the statuto- N.Y.2d 940.
Nonetheless, certain courts have 15. VTL § 1194(4)(c).
ry scheme. When the VTL is viewed in 4. People v. Brockington, 51 Misc.3d 1211(A)
relied on People v. Hampe as authority (N.Y. Co. Crim. Ct. 2016); People v. Turner, 47
16. See, e.g., Turner, 47 Misc.3d at 101;
its entirety, and the rules promulgated Brockington, 51 Misc.3d 1211(A), at *2.
for the determination that the presence Misc.3d 100 (App. Term 1st Dept. 2015).
thereunder are examined in light of the 17. 49 CFR § 40.3 (emphasis added).
of a PBT device on the Conforming 5. Brockington, 51 Misc.3d 1211(A), at *3.
18. 49 CFR § 40.231(b).
federal regulatory scheme, which they 6. Id. at *1.
Products List is sufficient to establish 19. Id.
mirror, PBTs should not be admissible 7. VTL § 1194(2)(a)(2).
20. See People v. Krut, 133 A.D.3d 781 (2d Dept.
reliability.21 However, the device at 8. VTL § 1194(2)(a).
as prima facie evidence of intoxication. 2015); People v. Palencia, 130 A.D.3d 1072 (2d
issue in Hampe was not a field breath 9. Compare VTL § 1194(1)(b), with VTL §
Dept. 2015).
test device, but rather the BAC Verifier, 1194(2)(a)(2).
21. People v. Hampe, 181 A.D.2d 238 (3d Dept.
10. The Court of Appeals has also held that a
which was administered under the con- Peter B. Skelos is a partner at Forchelli, defendant facing an alcohol-related charge aris-
1992); see, e.g., Turner, 47 Misc.3d at 101;
trolled conditions of a police station22 Curto, Deegan, Schwartz, Mineo & Terrana, ing out of the operation of a motor vehicle has
Brockington, 51 Misc.3d 1211(A), at *2.
LLP and a mediator and arbitrator at 22. By contrast, PBTs, like the Alco-Sensor FST,
and uses infrared energy absorption a qualified right to counsel. See, e.g., People v.
use electrochemical fuel cell sensors instead of
National Arbitration and Mediation; Robert Washington, 23 N.Y.3d 228 (2014). If the results
rates to measure the quantity of alcohol Brunetti is a founding partner at Brunetti of a PBT were admissible, a police officer in the
infrared technology and are administered in the
in the breath.23 Absent rigorous control field.
Ascione, PLLC. The authors thank Kelly field would have to permit the detained operator
23. Hampe, 181 A.D.2d at 239-40.
STUDENT...
bag and found a knife. law enforcement, so long as the deci- As such, the vice-principal could law-
The court ruled that the search was sion to investigate, detain and search fully consent to the search of the lock-
Continued From Page 5 appropriate pursuant to the reason- was made by school officials in pursuit er, and any contraband recovered used
able suspicion standard because school of a school-related function, including in a subsequent prosecution.
authorities initiated the investigation school security and safety.
cumscribe them in an adult frame of
that led to the search. Takeaway: Schools Must Balance
reference.” As such, “if there is not suf- When Contraband in School Roles and Interests
ficient cause, the exclusionary rule must The Presence and Constitutes A Crime Cases like TLO and Scott demon-
be applied in a criminal prosecution to Influence of Police Contraband recovered from stu- strate the balancing act performed by
evidence obtained illegally.”
In Vassallo v. Lando, the U.S. dents during a search conducted by school administrators and resource offi-
Searches by School District Court for the Eastern District school officials often constitutes a basis cers when managing the concurrent roles
Resource Officers of New York addressed the question for discipline for violating a school of parent surrogate and government offi-
School resource officers (sometimes of how police presence and influence rule. However, what if the items recov- cial. TLO’s reasonable suspicion standard
referred to as school safety agents or may effect a search by school officials.12 ered constitute evidence not only of a acknowledges this dual role; the Court
officers) are sworn law enforcement In Vassallo, school officials initiated violation of school rules, but of a crime? explained, “[a]gainst the child’s interest
agents and have “all the powers of a and directed the search of a student May the recovered items be used in a in privacy must be set the substantial
regular police officer,” including the who was suspected of starting a fire criminal prosecution or juvenile delin- interest of teachers and administrators in
right to search and arrest students.8 in a school bathroom. The principal quency proceeding?14 Generally, the maintaining discipline in the classroom
The National Association of School informed the student that if he refused answer is yes. and on school grounds.”20
Resource Officers estimates that the to consent to the search of his back- If the search satisfies the TLO rea-
Ultimately, students and parents
number of school police officers and pack, “he would call a police officer to sonable suspicion standard discussed
should be aware that while a student
school resource officers in our nation’s conduct the search by force.” When the above, the evidence will likely be
does not shed his constitutional rights
schools is between 14,000 and 20,000.9 student refused to consent to an initial admissible in a subsequent criminal or
at the school house gate, a search con-
Since Gregory M., New York courts search of his backpack, the school prin- delinquency proceeding.15 For instance,
cipal called a Nassau County Police in Gregory M., the Court of Appeals ducted by TLO standards which pro-
have continued to apply the TLO rea- duces evidence of a crime, may lead to
sonable suspicion standard to searches Officer to the school. ruled that a gun found in a student’s
Once the police officer arrived, the book bag was lawfully recovered pur- criminal, and not simply disciplinary
conducted by school resource officers. consequences.
Specifically, the courts have held that student handed over his backpack to suant to the reasonable suspicion stan-
the reasonable suspicion standard will the principal. The principal searched dard, and thus was admissible against Joseph Lilly, Esq. is an associate at Frazer
apply provided that the officer was per- the backpack in the presence of the the student in a subsequent juvenile & Feldman, LLP, practicing education law in
forming a school-related function when officer and discovered marijuana seeds. delinquency proceeding.16 Garden City, New York.
conducting a search. The principal suspected that the stu- This raises an interesting discus- Nicole A. Donatich, Esq. is an associate at
For instance, in Matter of Steven A., dent was in possession of marijuana sion of the legal role of school person- Frazer & Feldman, LLP practicing education
a school safety agent seized a box cut- and told the student to lift up his shirt, nel. On the one hand, it has long been law in Garden City, New York.
ter from a student.10 The safety agent take off his shoes and socks and lift up established that school teachers and
was a civilian employee of the police his pant legs. The police officer told administrators stand in loco parentis 1. Erica Byfield, Boy, 13, Arrested After Gun
the student to follow the principal’s based upon the fact that “…a school, Found in Backpack at Bronx Middle School:
department and was assigned exclu- NYPD, NBC News New York (Oct. 5, 2017),
sively to school security. The First instructions or he would be forcibly in assuming physical custody and con- https://goo.gl/zxSsDd.
Department held that the seizure was searched. The student followed the trol over its students, effectively takes 2. Rocco Parascandola, Surge in number of weap-
appropriate and the actions of the principal’s directions and a quantity the place of parents and guardians ons found in NYC schools, New York Daily News
of marijuana was recovered from his [citation omitted].”17 At the same time, (Oct. 3, 2017), https://goo.gl/issXmv.
safety agent were subject to the same 3. Vassallo v. Lando, 591 F.Supp.2d 172
reasonable suspicion standards enun- waistband. The officer arrested the school officials are also recognized as (E.D.N.Y. 2008).
ciated in TLO even though the safe- student for possession of marijuana. being representatives of the State.18 4. New Jersey v. TLO, 469 U.S. 325 (1985).
ty agent was employed by the police The Eastern District ruled the The contrasting role of the school 5. Id.
department. The court emphasized search appropriate under the reason- official as a government representa- 6. Matter of Gregory M., 82 N.Y.2d 588 (1993).
7. People v. Scott, 34 N.Y.2d 483 (1974).
that the agent’s seizure of the weapon able suspicion standard from TLO, tive, as opposed to the student’s parent 8. Josh Sanburn, Do Cops in Schools Do More
was proper, “particularly in light of finding that school authorities made away from home, is well illustrated Harm Than Good?, TIME (Oct. 29, 2015), https://
the urgency of interdicting weapons in the initial decision to interview and in People v. Overton.19 In that case, goo.gl/liqjnk.
schools.” search the student, and only sum- three detectives came to school with 9. Id.
a warrant to search two students and 10. Matter of Steven A., 308 A.D.2d 359 (1st Dept.
The court in In re Ana E. applied a moned the police officer for backup 2003).
similar analysis to the search of a book after the student refused to consent to their lockers. One student’s locker was 11. Matter of Ana E., 2002 WL 264325 (Sup. Ct.,
bag by a school safety officer.11 Similar the search. The court cited to similar searched after the school vice-principal N. Y. Co. 2002).
to the school safety agent in Steven A., concerns enunciated in Steven A. and opened it with his master key, and 12. 591 F.Supp.2d 172 (E.D.N.Y. 2008).
Ana E., explaining that the reason- marijuana cigarettes were recovered in 13. Id. at 194.
the school safety officer in Ana E. was
14. As compared to a criminal prosecution, a
a peace officer under the supervision of able suspicion standard was appropri- the ensuing search. juvenile delinquency proceeding is a fact- finding
the police department. The officer was ate because, “to hold otherwise, would However, the warrant for the search adjudication to determine whether a child has
asked to search a female student’s book potentially discourage school admin- of the locker was later found to be committed an act, which, if committed by an
bag after she participated in a violent istrators from seeking the assistance invalid. Nevertheless, the search was adult, would constitute a crime.
15. See Matter of Steven A, supra; Matter of Ana
fight in school and threatened to make and expertise of the police in a school’s upheld after the court found that the E., supra.
the other student bleed. After the fight effort to address criminal and poten- vice-principal had consented to the 16. 82 N.Y.2d at 592-94.
was broken up, a school counselor grew tially dangerous situations that may be search. In doing so, the court pointed 17. Mirand v. City of New York, 84 N.Y.2d 44, 49
suspicious of the bag’s contents and rapidly unfolding on school property.”13 out that school buildings and property (1994).
18. Mandell v. Bd. of Educ., No. 28121/96, 1996
expressed her concerns to the school Thus, in the Eastern District, are owned by the Board of Education, WL 34571253 (Sup. Ct., Nassau Co. 1996).
principal. The principal contacted a TLO’s reasonable suspicion standard and the vice-principal operated the 19. People v. Overton, 24 N.Y.2d 522 (1969).
school safety officer, who searched the applies to school searches involving school as the Board’s representative. 20. TLO, 469 U.S. at 340.
ASSOCIATION NEWS
HISPANIC NCBA PAST
HERITAGE PRESIDENT
CEREMONY HONORED
At the Hispanic A. Thomas Levin,
Heritage Ceremony Past President
on Friday, October of NCBA and
6th, at the Supreme NYSBA, received
Court in Mineola, the Barbara
Hector Herrera J. Merhman
from the Nassau Commitment to
County Bar Justice Award
Association and from Nassau
David L. Majias, Suffolk Law
Esq. were hon- Services. Jeffrey
ored. (l-r) NCBA Seigel, Executive
President Steven Director Nassau
G. Leventhal, Suffolk Law
NCBA President Services, present-
and Honoree ed the award.
Hector Herrera. Photo by Hector
Herrera
NCBA Committee Meeting Calendar • Nov. 13 - Dec. 20, 2017

Questions? Contact Stephanie Pagano (516) 747-4070 spagano@nassaubar.org
Please Note: Committee Meetings are for NCBA Members. Dates and times are subject to change.
Check website for updated information: www.nassaubar.org
We are pleased to announce the formation of the LGBTQ and Mental Health Committees
of the Nassau County Bar Association and invite you to participate. Please contact Stephanie Pagano
at spagano@nassaubar.org if you would like to be a member of these committees.
Attorney/Accountants Veteran’s and Military Law Women In The Law New Lawyers Veteran’s and Military Law
Monday, November 13 Monday, November 20 Wednesday, November 29 Monday, December 11 Monday, December 18
12:30 p.m. 12:30 p.m. 12:30 p.m. 6:30 p.m. 12:30 p.m.
Alisa Geffner/Jennifer Koo Gary Port Christie Jacobson Jamie Rosen/John Stellakis Gary Port
Construction Law Commercial Litigation Education Law Plaintiff’s Personal Injury Intellectual Property
Monday, November 13 Monday, November 20 Wednesday, November 29 Tuesday, December 12 Monday, December 18
12:30 p.m. 12:30 p.m. 12:30 p.m. 12:30 p.m. 12:30 p.m.
Michael Ganz John McEntee John Sheahan John Coco Ariel Ronneburger
Plaintiff’s Personal Injury General, Solo and Small Alternative Dispute Labor & Employment Law General, Solo and Small
Tuesday, November 14 Law Practice Management Resolution Tuesday, December 12 Law Practice Management
12:30 p.m. Tuesday, November 21 Thursday, November 30 12:30 p.m. Tuesday, December 19
John Coco 12:30 p.m. 12:30 p.m. Christopher Marlborough 12:30 p.m.
Maxine Broderick Donna-Marie Korth/William J.A. Maxine Broderick
Criminal Court Law & Sparks Association Membership
Procedure Medical-Legal Wednesday, December 13 Elder Law Social Services
Tuesday, November 14 Monday, November 27 Ethics 12:45 p.m. & Health Advocacy
12:30 p.m. 12:30 p.m. Monday, December 4 Adam D’Antonio Tuesday, December 19
Daniel Russo Alan Clark 5:30 p.m. 12:30 p.m.
Kevin Kearon Matrimonial Law Kathleen Wright/Danielle Visvader
Labor & Employment Law Animal Law Wednesday, December 13
Tuesday, November 14 Tuesday, November 28 Real Property Law 5:30 p.m. Animal Law
12:30 p.m. 12:30 p.m. Wednesday, December 6 Jennifer Rosenkrantz Tuesday, December 19
Christopher Marlborough Marilyn Genoa/Matthew Miller 12:30 p.m. 6:00 p.m.
Patrick Yu/Rebecca Langweber Civil Rights Marilyn Genoa/Matthew Miller
Bankruptcy District Court Thursday, December 14
Wednesday, November 15 Tuesday, November 28 Hospital & Health Law 12:30 p.m. Women In The Law
12:30 p.m. 12:30 p.m. Thursday, December 7 Kristina Heuser Wednesday, December 20
Matthew Spero Jaime Ezratty 8:30 a.m. 12:30 p.m.
Douglas Nadjari Publications Christie Jacobson
Intellectual Property Elder Law Social Services Thursday, December 14
Wednesday, November 15 & Health Advocacy Community Relations & 12:45 p.m. Alternative Dispute
12:30 p.m. Tuesday, November 28 Public Educaiton Rhoda Andors/Anthony Fasano Resolution
Ariel Ronneburger 5:30 p.m. Thursday, December 7 Wednesday, December 20
Kathleen Wright/Danielle Visvader 12:45 p.m. Commercial Litigation 12:30 p.m.
Adoption Law Moriah Adamo Friday, December 15 Donna-Marie Korth/William J.A.
Thursday, November 16 12:30 p.m. Sparks
12:30 p.m. John McEntee
Martha Krisel
NCBA New Members

Law Day 2018
We welcome the following new members
Attorneys Madison Porzio
Katie A Barbieri Vishnick McGovern Milizio LLP
Abrams, Fensterman, Fensterman,
Eisman, Zachary I. Riyaz
Formato, Ferrara & Wolf, LLP The Law Offices of Zachary I. Riyaz,
P.C.
John C. Barrera
Barrera Legal Group Rory Shectman
Jennifer Burgess
AWARD NOMINATIONS REQUESTED
Joseph J. Villapol
Kudman Trachten Aloe LLP
Michael S. Flynn
Mark E. Weinberger
Jeffrey Fox
Students
Liberty Bell
Law Offices of Jeffrey Fox, PLLC
Melissa Anne Bohl Award
Samantha Fried Megan A. Carnes
Nicolas Daleo
Ross J. Kartez Do you know someone in Nassau County whose efforts on behalf of
Maria DiSpigno
law and justice deserve the recognition symbolized by the Nassau
Ruskin Moscou Faltischek, PC Randall V. Forbes County Bar Association’s prestigious Liberty Bell Award? The Award
Jurianne Deidre Franqui honors an individual or organization outside the legal profession
Scott J. Kreppein
Victoria Claire Hall-Swartz whose community service advances and strengthens the American
Quatela Chimeri, PLLC
Timothy P. Hatfield system of freedom under law. With this Award, the Association
Shamina Khanom recognizes efforts and achievements which meet some or all of the
Ramy Louis
following criteria:
Nassau County District Attorney’s Robert James Luby
+ promoting better understanding of the Constitution and the Bill
Office-Main Cristen C. McGrath
of Rights;
Shereen N. Menwer + encouraging greater respect for law and the courts;
Jennifer Maldonado Steven Pambianchi + stimulating a deeper sense of individual responsibility so that
Craig I. Pavel citizens recognize their duties as well as their rights;

Holly C. Meyer + contributing to the effective functioning of institutions of
Ashley Nicole Prinz
The Law Office of Maggio & Meyer government;
Brianna Grace Ryan + and fostering a better understanding and appreciation of the
PLLC
David Santana rule of law.
Brian Mittman
Markhoff & Mittman, PC
Pierinna M. Servat
Spencer D. Shapiro
Peter T. Affatato
Shogik Oganisyan
Rebecca L. Stein
Brianna Vaughan
Court Employee of the
Sandra Pendrick
Conor Wiggins Year Award
Leah M. Winfield NCBA is seeking nominations for the Court Employee of the Year Award,
Certilman Balin Adler & Hyman,
named in honor of the “Dean of the Bar” Past President Peter T. Affatato.
LLP-LI In Memoriam
The Award recognizes a non-judicial employee of any court located in
Brian R. Fishkin Nassau County who:
• exhibits professional dedication to the court system and its
efficient operation, and,
• is exceptionally helpful and courteous to other court
personnel, members of the bar, and the many diverse people
whom the court system serves.
For Information on The Liberty Bell Award and the Court Employee of the Year Award
LAWYERS’ AA MEETING will be presented at the 2018 Law Day celebration.
Nominations should be submitted with supporting
Call the NCBA documents not later than November 20, 2017 to:
Lawyer Assistance Program Hon. Ira B. Warshawsky
Director Law Day Committee Chair
Nassau County Bar Association
516-512-2618 15th & West Streets
Mineola, NY 11501
In Brief
Meyer, Suozzi, English & Klein, P.C. Planning and lenders in residential and commercial Member of the Lawyers of Distinction.
is pleased to share that thirteen of its Monica Ruela, real estate transactions. He also rep- Mr. Tully was also recognized by Super
attorneys have been named as 2017 New Elder Law/Estate resents buyers, sellers, landlords and Lawyers in the practice areas of Elder
York Super Lawyers and Rising Stars. Planning and tenants in all phases of real estate. Law and Estate Planning & Probate for
The Supter Lawyers are: Donnalynn Probate, Rising the seventh straight year. In addition,
Darling, Personal Injury – General, Stars. Jeffrey D. Forchelli, managing partner Mr. Tully has earned his Expert Network
Patricia Galteri, Estate Planning of Forchelli, Curto, Deegan, Schwartz, Distinguished© Lawyer Badge based on
& Probate, Thomas Levin, State/ Alexander T. Mineo & Terrana, LLP, has received an the panel’s review of his career and
Local & Municipal, Land Use/Zoning, Coleman from ICON Award from Long Island Business contributions to the profession and the
Edward J. LoBello, Bankruptcy, the Borrelli & As- News and was recently selected by his community.
Paul F. Millus, Employment & Labor, sociates team has peers for inclusion in The Best Lawyers
Business Litigation, Kevin Schlosser, earned a spot on in America 2018 in real estate.. Sixteen David Abeshouse is pleased to
Business Litigation, Thomas R. Slome, the 2017 Super partners from the firm have been cho- announce that for the seventh year, he
Marian C. Rice Lawyers Rising sen by their peers as 2017 New York
Bankruptcy, Business/Corporate, has been honored as one of the New York
Business Litigation. Rising Stars are:
Stars list based on Super Lawyers® including Jeffrey D. Metro area SuperLawyers in the field of
his work representing plaintiffs in work- Forchelli, Daniel P. Deegan, John V. Alternative Dispute Resolution (ADR)
Michael J. Antongiovanni, Business
place lawsuits. Terrana, Joseph P. Asselta, Frank Law.
Litigation, Real Estate, Appellate
W. Brennan, Kathleen Deegan
and Lauren B. Grassotti, Business Ronald Fatoullah of Ronald Fatoullah Dickson, Gregory S. Lisi, Alexander Ten Sullivan Papain Block McGrath
Litigation. & Associates was a featured guest on the Leong, Gerard R. Luckman, Mary & Cannavo P.C attorneys have been
Project Independence radio show where E. Mongioi, Peter R. Mineo, Judy L. designated 2017 New York Super Law-
Medical malpractice attorney, Stephen he spoke about the ins and outs of com-
E. Erickson of Pegalis & Erickson, LLC, Simoncic, Peter B. Skelos, Jeffrey yers® including NCBA Past President
munity-based Medicaid. G. Stark and Russell G. Tisman. Christopher T. McGrath and Rob-
has been named the 2018 “Lawyer of the
Year” by Best Lawyers in America© for Seven attorneys were named to the New ert G. Sullivan. Deanne Caputo has
Karen Tenenbaum, of Tenenbaum York Rising Stars® SuperLawyers list:
Plaintiff’s Personal Litigation in Long been acknowledged as a New York Ris-
Law, P.C., Tax Attorneys in Melville, was
Island, the only plaintiffs’ personal inju- Douglas W. Atkins, Stephanie M. ing Star®. Mr. McGrath has also been
quoted in the Long Island Business News Alberts, Nathan R. Jones, Danielle B.
ry lawyer on Long Island to receive this
article “Home is Where the Hurricane included in Super Lawyers Top 100 Law-
Gatto, Robert L. Renda and Allison yers in the New York Metro area
year’s award. Isn’t: Irma Creates Tax Turbulence Rosenzweig.
for Snowbirds”. Ms. Tenenbaum and Marc Hamroff, managing partner at
Russell I. Marnell, a New York Jennifer Ann Wynne and other attor-
Sandra N. Busell, a partner at Certil- Moritt Hock & Hamroff, has announced
Matrimonial and Family Law Attorney, neys will be speaking at the Long Island
man Balin, who is also a Certified Pub- that the construction law firm of
has been selected to the 2017 New York Tax Symposium about Residency and
lic Accountant, was named to the 2017 Goldberg & Connolly has brought its
Metro Super Lawyers List. Tax Collections. Super Lawyer list. She concentrates her highly regarded practice to MH&H. With
Capell Barnett Matalon & Schoenfeld practice in the areas of trusts, guardian- its attorneys, all of whom will be joining
Golden, Wexler & Buatti, P.C. is pleased ships, Supplemental Needs Trusts, and
is proud of its attorneys who have been to announce that Joel G. Wexler has the firm, Goldberg & Connolly brings its
the protection of Medicaid benefits in leadership in the construction law indus-
selected as 2017 New York Metro Super been named by his peers as a 2017 New regard to the elderly and special needs try, having represented a broad array
Lawyers and Rising Stars including York Metro Super Lawyer for the fourth children and adults. Twelve attorneys of construction businesses in both the
Yvonne Cort, Taxation, Super Lawyer consecutive year and fifth time overall. at Certilman Balin were named to this private and public sectors.
and Albert Dumaual, Tax and Estate Mr. Wexler concentrates in representing year’s New York Metro Super Lawyers
list, and six were named to the Rising Vincent J. Russo, Managing
ATTORNEYS & JUDGES

Stars List. Shareholder and founder of Russo Law
Group, P.C., has been named a Top 100
Joel M. Greenberg, a partner at the Metro Super Lawyer. Mr. Russo has
Greenberg, Dresevic, Iwrey, Kalmowitz, been designated a Super Lawyer in the
& Pendleton Law Group, a division of Elder Law field since 2007. Partner
The Health Law Partners, P.C., has been Marie Elena Puma has also been des-
selected as a Super Lawyer in the field of ignated a Super Lawyer for the second
health law for the 7th consecutive year. consecutive year and associate Eric J.
Five Wisselman & Associates attorney Einhart has been named a New York
have been named to 2017 New York Metro Rising Star also for the second
Super Lawyers® the New York Rising year.
Stars® lists including Jerome A.
The American Bar Association has
Wisselman (Super Lawyer 2009, 2014-
announced a new book release entitled
2017) and Amanda Rose Green (Rising
“Cross Examination: A Primer for the
NCBA is looking for MENTORS

Star).
Family Lawyer”, authored by Stephen
Brian Andrew Tully, Partner/Founder, J. Gassman, NCBA Past President and
for Middle School students. Tully Law, P.C., has been certified as a See IN BRIEF, Page 25
8 a.m. to 8:45 a.m. one day every other week

Dec. 2017 through May 2018 Lunch With the Judges
Students in the following
communities are awaiting mentors:
Hempstead • Uniondale • Jericho
Westbury • East Meadow
Contact Demi Tsiopelas at the Nassau Bar The Nassau County Bar Association’s New Lawyers/Judges lunches provides the
(516)747-4070 x210 unique opportunity for newer practitioners to get to know judges outside the court-
room. Moritt Hock & Hamroff sponsors the informal lunch series. On October 27, new
dtsiopelas@nassaubar.org lawyers met with (seated 2nd from left to right) Hon. Joy Watson, Hon. Denise Sher and
Hon. Erica Prager. New attorneys who would like to attend the next lunch are encour-
aged to contact Donna Gerdik at dgerdik@nassaubar.org. Photo by Henry Guerra
Pro Bono Attorney of the Month year career teaching junior high school
science. After his admission to the New
York Bar in 1975, he immediately opened
continued success. We are so grateful to
him and the many other generous attor-
neys who give of their time.”
a private general practice, and ultimate- In addition to practicing law, Rich
ly focused on real estate and business believes it is important to make the time
transactions. to have other interests or activities to
When asked about why he joined the de-stress. Rich plays golf, devotes many
VLP, Rich noted: “I simply wanted to hours a week working out and loves
BY SUSAN BILLER Michael A. Rich, Esq. give back. The clients I assist show me
a different world. I am often amazed at
spending time with his wife, children and
six grandchildren.
how families can survive on the brink In light of his professionalism and ded-
This month, Nassau Suffolk Law This project allows attorneys to volun- of homelessness. I enjoy helping these ication, we are proud to honor Michael
Services Volunteer Lawyers Project teer to represent these individuals for a clients keep a roof over their children’s Rich, Esq., as our most recent Pro Bono
(VLP), along with the Nassau County four hour session once a week, a month heads.” Attorney of the Month.
Bar Association (NCBA) honor a long- or as frequently as they choose. This Rich credits the work he has done
standing stalwart of the Landlord/ past year, Rich has actively represent- in Landlord Tenant Court with helping
him gain valuable courtroom exposure. The Volunteer Lawyers Project is a joint
Tenant Attorney of the Day Program: ed 21 individuals or families, defending effort of Nassau Suffolk Law Services and
Michael A. Rich, Esq. Rich has been rep- or forestalling evictions. The goal is to Most importantly, the experience helps
the Nassau County Bar Association, who, for
resenting low income clients in District preserve housing or at least give the ten- “…sharpen my ability to think on my many years, have joined resources toward
Court through the VLP for over 15 years, ants sufficient time to secure alternative feet and come up with novel negotiating the goal of providing free legal assistance
housing and avoid shelter placement or solutions. The key to success in law is the to Nassau County residents who are dealing
and has donated over 48 hours this year
learned skill of analyzing a situation and with economic hardship. Nassau Suffolk Law
alone. This is the second time he has homelessness. Services is a non-profit civil legal services
negotiation.”
been recognized with this honor. In nearly every matter, Rich has been agency, receiving federal, state and local fund-
Rich is cognizant that the VLP always
The Attorney of the Day Program, able to dismiss the eviction or negoti- needs more volunteers, and faithfully ing to provide free legal assistance to Long
supervised by VLP Staff Attorney ate a stipulation of settlement which Islanders, primarily in the areas of benefits
assists on at least two to three cases each advocacy, homelessness prevention (foreclo-
Roberta Scoll, assists hundreds of indi- either provides for the client’s tenancy month. “I never let lack of time be an
gent and disabled men, women and chil- to continue, or allows additional time sure and eviction defense), access to health
excuse. I just make the time because I care, and services to special populations such
dren in Housing Court to prevent home- for them to seek alternative housing for know how important this work is.” as domestic violence victims, disabled, and
lessness. Many of the cases are holdover their families. This type of assistance Roberta Scoll, Staff Attorney and coor- adult home residents. The provision of free
or nonpayment matters. Most tenants involves direct advocacy and engagement dinator of the Project, nominated Rich services is prioritized based on financial need
appear pro se, and are severely disadvan- with the local community. It is a way to for the honor of Pro Bono Attorney of and funding is often inadequate in these areas.
taged by lack of counsel. The courts are empower others and help those who have Furthermore, there is no funding for the gener-
the Month for his determination to help
al provision of matrimonial or bankruptcy rep-
overburdened trying to administer jus- no place else to go. clients as well as his long-standing ded- resentation, therefore the demand for pro bono
tice. Given the lack of affordable housing Rich graduated from Brooklyn Law ication. She comments, “His ability to assistance is the greatest in these areas. If you
in this region, eviction may place families School in 1974, after pursuing a Master’s assist so many clients in landlord tenant would like to volunteer, please contact Susan
at severe risk of becoming homeless. degree in Biology and a rewarding 11 cases is what contributes to the Project’s Biller, Esq. 516-292-8100, ext. 3136.
Committee Reports
Senior Attorneys Medical-Legal The committee meeting featured a
presentation by Gregory Lisi, Esq., and
The next meeting is scheduled
for November 8, 2017, at 12:30 pm,
Meeting Date: 9/25/17 Meeting Date: 10/4/17 Lisa Casa, Esq., regarding the validity which will feature a CLE presented by
Chairs: George Frooks and Joan Chair: Alan W. Clark of indemnification agreements under the Appellate Land Services.
L. Robert Fair Labor Standards Act.
New Lawyers
Nassau County Supreme The next meeting is scheduled for
Various topics of interest Court Justices Denise L. November 14, 2017. Committee member
were discussed and many sub- Sher and Randy Sue Marber, Meeting Date: 10/16/17
Brian Libert, Esq., will discuss employ-
jects were suggested as poten- along with Principal Law ment law as it relates to municipal Co-Chairs: Jamie A. Rosen, Esq. and John C.
tial substantive programs, Clerk Mili Makhijani, Esq., employers. Stellakis, Esq.
including ethical issues when delivered a presentation on
dealing with individuals with
diminished capacity, retainer
the court’s perspective of dis- Plaintiff’s Personal Injury Allison Rosenzweig, Esq., present-
ed a lecture entitled “Corporate Law
covery issues encountered
agreements and fee disputes, Michael J. Langer by parties in civil cases and Meeting Date: 10/10/17 Overview” which focused on a young asso-
and tax and other consider- possible solutions. The pre- Chair: John Coco ciate’s role in corporate matters such as
ations for individuals who are pared materials also included The committee held a CLE presenta- entity formation, preparing governance
residents of more than one initiatives and standards from Judge tion given by Fred Cohen, Esq., which documents, and mergers and acquisi-
state. Janet DiFiore, Chief Judge of the New included a discussion regarding tips for
The next meeting is scheduled for York State Court of Appeals, for achiev- tions. Susan Katz Richman, Esq., WE
business management, updated office CARE Advisory Board Member, spoke to
October 30, 2017 at 12:30 p.m. The ing excellence in the court system, and services and software which can assist
expected topic of discussion to be regard- case law discussing discovery of incident our members about WE CARE, specifical-
in the generation of documents and the ly the Leukemia & Lymphoma Society’s
ing the process of obtaining mortgages reports, quality assurance and computer organization of files and medical records,
and reverse mortgages when the home Light the Night event, being held on
data for medical records. Also discussed and a connected tasks and calendaring
is owned by a trust and/or with a life Saturday, October 21, 2017, at 5:30 p.m.,
were problems in the exchange of medi- system.
estate. at Eisenhower Park.
cal authorizations, the delay in conduct-
Women in the Law ing depositions and the need for more Real Property Law The next meeting is scheduled for
communication between counsel involv- November 6, 2017, at 6:30 p.m.
Meeting Date: 10/11/17
Meeting Date: 9/27/17 ing the court when necessary early on to Chair: Patrick Yu
Chair: Christie R. Jacobson resolve discovery disputes expeditiously, The Committee Reports column is compiled by
Louis Vlahos, Esq., delivered a CLE
Featured speaker Dyan Finguerra- with suggestions discussed to assist in Michael J. Langer, a partner in the Law Offices
presentation on the tax implications
DuCharme, Esq., delivered a lecture the expediting of medical malpractice of Michael J. Langer, P.C. Mr. Langer is a former
of liquidating partnership interests. law clerk in the United States Court of Appeals
on the topic of “How to Create Work- litigation.
Various other items of business were for the Second Circuit, and a former Deputy
Life Balance and Avoid Burnout,” where
helpful tips for finding a work-life bal- Labor and Employment
discussed, including the NCBA brick County Attorney in the Office of the Nassau
program, the raising of recording fees County Attorney. Mr. Langer’s practice focuses
ance in the legal profession were given. Meeting Date: 10/10/17 in Nassau County and new title regula- on matrimonial and family law, estate and com-
Chair: Christopher Marlborough tions being enacted. mercial litigation, and criminal defense.
members. Due to space limitations, submis-

IN BRIEF ...
The Law Office of Vessa & Wilensky, led sessions at the Concurrent Round
P.C. is proud to announce that for a Tables at the New York State Bar sions may be edited for length and content.
Continued From Page 24 3rd straight year, all of its attorneys, Association, Elder Law and Special
PLEASE NOTE: All submissions to the IN
Michael P. Vessa, Kenneth B. Needs Section, Fall Meeting, entitled:
BRIEF column must be made as WORD
senior partner of Gassman Baiamonte Wilensky and Philip M. Vessa, have Mental Illness in Guardianship Legal
DOCUMENTS.
been named to the New York Times Matters.
Gruner, P.C.
Super Lawyers list. The In Brief column is compiled by Marian
PLEASE E-MAIL YOUR SUBMISSIONS TO: C. Rice, a partner at the Garden City law firm
Douglas M. Lieberman, a partner at
Carolyn Reinach Wolf, Executive nassaulawyer@nassaubar.org with subject L’Abbate Balkan Colavita & Contini, LLP where
Markotsis & Lieberman, P.C., has been Partner and Director of the Mental line: IN BRIEF she chairs the Attorney Professional Liability
named a 2017 Metro New York Super Health Law Practice at Abrams, Practice Group. In addition to representing
The Nassau Lawyer welcomes submissions to
Lawyer in Business Litigation. This is Fensterman, Fensterman, Eisman, the IN BRIEF column announcing news, events attorneys for nearly 35 years, Ms. Rice is a Past
his fourth consecutive award. Formato, Ferrara, Wolf & Carone, LLP and recent accomplishments of its current President of NCBA.
NCBA Hosts Another Successful Open House

Open House Volunteer Attorneys
Sherri Adamson Stuart Gelberg Gregory Pandolfo
Marjorie Adler Mary Giordano Alan Pearl
Anand Ahuja Jim Glass Marc Roberts
Lorena Alfaro Dorian Glover Ken Robinson
Stanford Altschul Gerald Goldstein Lee Rosenberg
Sharon Azmon Douglas Good Seth Rosner
Patrick Binakis Wendy Hamberger Jason Rothman
Lois Bladykas Joy Jankunas David Saed
Michael Borrelli Gail Kenowitz Lawrence Schaffer
Adam Browser Ellen Kessler Michael Schoenberg
Russell Burcheri Jim Klein Elizabeth Schulman
Michelle Caldera-Kopf Saul Kobrick Kranz
Jeffrey Catterson Cheryl Kreger-Grella Kyce Siddiqi
Desiree Lovell Fusco provides pro bono trusts and estates assistance to a Nassau Heather Siegelman
Michelle Cuevas S Robert Kroll
resident at the Open House. Photo by Henry Guerra
Jay Davis Bryce Levine Harold Somer
The public was once again invited including mortgage foreclosure, matri- Adele Deerson David Lira Tagiana Souza-
to bring any legal questions to the monial and family, bankruptcy, labor Tortorella
Michael DiBello Gregory Lisi
Nassau County Bar Association. At and employment, trusts and estates William Sparks
the Open House held October 26, more James Ezratty Desiree Lovell Fusco
and immigration. George Terezakis
than 67 volunteer attorneys met one- Anthony Falanga Bruce McBrien
“The Open House was a great suc- Andrew Thaler
on-one with approximately 120 Nassau cess,” remarked Joseph Harbeson, Joanne Fanizza Andrew Meaney
residents to unwind complicated legal Robert Vadnais
Co-chair of the Access to Justice Donna Fiorelli David Mejia
issues and provide guidance, counsel Ingrid Villagran
and referrals. Committee. “The people who came Kamini Fox Jeff Morgenstern
for our help were appreciative of John Zenir
Since 2011, NCBA has hosted the Emily Franchina Stacey Nigro
Open House, the pro bono clinic for all the time the volunteer attorneys Mitra Zervos
Edward Fregosi, Jr Thomas O’Rourke
the public, with Nassau Suffolk Law gave them. Hopefully we were able to
George Frooks Chandra Ortiz
Services and The Safe Center LI. Help resolve some of their problems or send
is provided on a myriad of issues, them in the right direction.”
LAWYER TO LAWYER BUSINESS CARDS

APPELLATE COUNSEL FORECLOSURE & TAX LAW
NEIL R. FINKSTON, ESQ.
Benefit From a Reliable & Experienced Appellate Specialist
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OFFICE SPACE
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Giving Small Firms and Solo Practitioners 30 years experience ∙ Free consultation reception, conference room, WI-FI, photocopy and
Peace of Mind. furnished secretarial stations available, coffee
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Phone: (516) 457-9169 www.blasielaw.com blaze@cal.net www.appealny.com (516)-224-5100, e-mail: jmngnovicklaw.com.
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2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 and 2016
• Author, Chapter on Alternative Dispute Resolution, Matthew
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The Journal of the Nassau County Bar Association

NOVEMBER 2017 www.nassaubar.org Vol. 67, No. 3

Follow us on Facebook OCTOBER 10, 2017

Past Presidents Room Dedicated in

SAVE the DATES

Criminal Defenders Stand Between

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From the been as foul a Stain upon this

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The Student Defendant

Holiday Gift Idea!

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The Nassau County Bar Association

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Watch for your invitation in the mail

Challenging the Use of Portable Breath Test

Lost, Found and Stolen – The Nexus

Obligations of Prosecutors and Defense Attorneys

Criminal Defenders Stand Between Local

Claims by the Exonerated for

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SAU ACADEMY OF LAW

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THE WE CARE FUND We Care

Session Attending: ____ 9:30 a.m. - 11:30 a.m.

Please Support the NCBA LAW YOU SHOULD KNOW

The Cost of Incarceration Education:

NCBA Committee Meeting Calendar • Nov. 13 - Dec. 20, 2017

NCBA New Members

Craig I. Pavel citizens recognize their duties as well as their rights;

ATTORNEYS & JUDGES

NCBA is looking for MENTORS

8 a.m. to 8:45 a.m. one day every other week

members. Due to space limitations, submis-

NCBA Hosts Another Successful Open House

LAWYER TO LAWYER BUSINESS CARDS

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