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 In People v. Martin, when Jeffrey Martin was pulled over by Officer Pickering, Martin handed the cop another person's driver's license and car rental agreement.
Martin's eyes were red and glassy, the vehicle reeked of alcohol, he admitted to having imbibed spirits earlier in the day, and a passenger informed another Officer -- Cook -- that a cup in the middle console contained Hennessy cognac.
While Cook handcuffed Martin and placed him in his patrol car, Pickering found a gun as he searched the vehicle for other open containers.
To compound matters just a bit, as Martin was taken into custody, marijuana and 20 bags of crack cocaine were found on his person.
After the Chemung County Court accepted Martin's plea, convicted him of "criminal possession of a controlled substance in the third degree" and "criminal possession of weapon in the fourth degree," and sentenced him to two years in prison with an additional two years of post-release supervision, Martin appealed to the Appellate Division, Third Department, challenging the search's propriety.
The AD3 reiterated the established rule that "when the occupant of an automobile is arrested, the very circumstances that supply probable cause for the arrest may also give the police probable cause to believe the vehicle contains contraband, evidence of the crime, a weapon or some means of escape." Since the officers' actions were within the bounds of the law, the guns and drugs they uncovered were properly seized and the conviction was upheld.
Anyone got the real dope on this case?
 To download a copy of the Appellate Division's decision, please use this link: People v. Martin
 In People v. Mendoza, Silva Mendoza asked the Bronx County Supreme Court to stop prosecutors from introducing evidence that "contraband" was discovered in his pocket during a search conducted by Rikers Island corrections officers.
When the Bronx County Supreme Court denied Mendoza's request without a hearing, and sentenced him to a term of 2 to 4 years, Mendoza appealed to the Appellate Division, First Department.
Although he asserted a constitutional violation, in view of an inmate's diminished rights and Mendoza's failure to show why the search was "unreasonable," the AD1 could discern no basis to disturb the outcome.
Clearly, Mendoza needed deeper pockets.
 To download a copy of the Appellate Division's decision, please use this link: People v. Mendoza
 During a phone call made to the mother of his two children, Marcos Urbaez supposedly threatened to "withhold child support, beat her, knock out her teeth and break her face."
As a result of that misconduct, Urbaez was charged with aggravated harassment -- a class A misdemeanor. When prosecutors opted to reduce the charge to "attempted aggravated harassment" -- a class B misdemeanor -- Urbaez objected, arguing that the maneuver was intended to deny him a jury trial.
Both the New York City Criminal Court, and the Appellate Term, First Department, could discern no irregularity by the reduction.
On appeal, the New York State Court of Appeals held that a defendant has the right to a jury only when a "serious offense" is concerned and the maximum penalty for incarceration is over seven months.
Because Urbaez faced no jail time for his "relatively nonserious" crime, our state's highest court affirmed noting that by allowing prosecutors to process a "high volume of misdemeanor cases" as they saw fit, "the important public interest of effective judicial administration" was promoted.
Next!
To download a copy of the Court of Appeals' decision, please use this link: People v. Urbaez
 In People v. Gray, Roy Gray was taken into custody in North Carolina for his involvement in the New York shooting death of Levi Bernard.
New York City Police Detective DePaolis traveled to North Carolina to return Gray to New York and to question him about the shooting. After DePaolis advised Gray of his rights, Gray supposedly accepted responsibility for the murder. DePaolis then handled Gray a written version of North Carolina’s Miranda warnings, which Gray signed and dated. Detective DePaolis waited until he received a copy of an official “Miranda” form used by the New York City Police Department and, after a forty-five minute delay, Gray again waived his rights and began speaking about his involvement in the murder. When he was eventually tried in the Bronx County Supreme Court, Gray moved to suppress the introduction of the statements made during the interrogation process. After that motion was granted, an appeal to the Appellate Division, First Department, ensued. According to the AD1, there was no evidence that Gray’s constitutional rights had been violated. Not only had he been given repeated oral and written advisories, but Gray’s “extensive 10-year criminal record” reinforced that the defendant acted knowingly and voluntarily. As a result, there was no need to prevent the introduction of Gray’s admissions at trial. Nothing Gray about that. To download a copy of the Appellate Division’s decision, please use this link: People v. Gray
 In People v. Steinhilber, the Kingston District Attorney filed “driving while intoxicated” (DWI) charges against Leroy Steinhilber after he crashed his car on the way home from a local bar.
Steinhilber not only admitted that he consumed ten beers but was taken to a local hospital where a blood test revealed an alcohol content of 0.13%. After a jury trial, Steinhilber was convicted of two counts of DWI. He was also convicted, after a nonjury trial, of aggravated unlicensed operation of a motor vehicle and was sentenced to 1-4 years in prison to be concurrently served. On appeal, Steinhilber argued that his blood test and statements to the state trooper were inadmissible, because the resident who attended to him wasn’t a licensed physician and the trooper failed to give a Miranda warning. The Appellate Division, Third Department, disagreed and affirmed Steinhilber’s conviction and sentence. As the AD3 observed, “Although this (medical) resident was not yet licensed at the time, the Legislature has long since dispensed with the requirement that a physician be licensed to qualify as a person authorized to draw blood under this statute.” Additionally, because Steinhilber wasn’t in custody when he was speaking to the trooper, and the latter spoke with Steinhilber “to ascertain his identity and investigate the circumstances surrounding the accident,” a Miranda warning wasn’t required. Moreover, due to his “extensive, persistent and varied criminal history,” including “alcohol related offenses” dating back to 1975, the AD3 concluded that the sentence wasn’t harsh or excessive, nor warranted a reduction. Will there be another round? A mouth of a perfectly happy man is filled with beer.
--Ancient Egyptian Wisdom, 2200 B.C. To download a copy of the Appellate Division’s decision, please use this link: People v. Steinhilber
 In People v. Mobley, Donald Mobley asked the Bronx County Supreme Court to suppress -- or prevent -- the District Attorney from admitting into evidence a gun found by two police officers.
Mobley and a young woman were seated in a parked car in an area of the Bronx known for crime and prostitution. After the officers approached Mobley’s vehicle, they inquired what he was doing in the area, exited their cruiser and approached on foot. The officers eventually searched Mobley’s car and found a firearm. When the Bronx County Supreme Court granted Mobley’s suppression request, an appeal to the Appellate Division, First Department, ensued. In its decision, the AD1 observed: Once the police questioned the occupants of the car and found nothing to create any degree of suspicion, the police clearly had no basis for their second approach and inquiry, made on foot. … Furthermore, we conclude the ultimate discovery of the firearm in the car was the direct result of the second inquiry, and cannot accurately be characterized as a mere observation, from a lawful vantage point, of contraband in plain view.
Because the search was unjustifiable, the AD1 agreed that suppression of the weapon was appropriate. Sorry, but all this talk of suppression is getting to me. To download a copy of the Appellate Division’s decision, please use the following link: People v. Mobley
 In Clayton v. Best Buy Co, Inc., Natoya Clayton filed suit against Best Buy -- a seller of consumer electronics, home-office products, entertainment software, appliances and related services with nearly 1,300 retail stores across the United States, Canada and in China -- alleging sex discrimination, sexual harassment, intentional infliction of emotional distress, and retaliation.
Clayton claimed that she endured sexually inappropriate remarks from other Best Buy employees and that, after she reported one of these incidents, her work hours were reduced in retaliation for the complaint. The Bronx County Supreme Court granted Best Buy’s request to dismiss the case, finding that under New York’s Human Rights Law, “an employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it.” Since Best Buy properly responded to Clayton’s complaints, and reprimanded the offending employee in a timely manner, there was no evidence to show that the company encouraged, condoned or approved of the harassment. Upon review, the Appellate Division, First Department, reinstated parts of Clayton's case and directed that the matter proceed to a formal hearing or trial. The AD1 was of the opinion there were unresolved questions as to whether Clayton's hours had been reduced, and whether she was eventually fired, as a result of her sexual harassment charges. Was Best Buy bested by Clayton? To download a copy of the Appellate Division’s decision, please use this link: Clayton v. Best Buy Co, Inc.
 When a Domino’s franchise began slipping fliers beneath the doors of residential apartments without permission, Mark Leyse filed suit on behalf of himself and all others similarly situated seeking declaratory and injunctive relief based on trespass.
After the New York County Supreme Court granted Domino’s motion to dismiss the case, and imposed sanctions against Leyse, he appealed to the Appellate Division, First Department, which found that the case should have been dismissed in the absence of prior notice that Leyse objected to the fliers. According to the AD1, that notice was required to safeguard Domino’s constitutional right of free speech. Interestingly, the AD1 didn’t believe Leyse’s case was frivolous or that costs and sanctions were appropriate -- even though Leyse had been told the fliers had come from another party (a Domino’s franchisee). Since there had been no discovery, the AD1 concluded that Leyse wasn’t required to accept that representation at face value. You’re welcome to take a slice out of that! To download a copy of the Appellate Division’s decision, please use this link: Leyse v. Domino’s Pizza LLC
 The California Penal Code authorizes District Attorneys to prosecute citizens for writing bad checks, when individuals know there are insufficient funds available for a transaction. In order to enforce that law, the Santa Clara County District Attorney’s office contracted with American Corrective Counseling Services (ACCS), a private corporation, to run its “bad check diversion” program in virtually every conceivable way, including contacting offenders, collecting fees, and managing instructive classes.
After Elena Del Campo bounced a check for $95.02, ACCS aggressively pursued her. A letter was sent by ACCS, on the DA’s office letterhead, alerting Del Campo of her violation, urging her to attend a “bad check program” to avoid a court appearance, and, requiring her to pay $265.02. When Del Campo sent ACCS a check for the original amount of the payment (rather than the increased amount demanded), the company sent a second letter threatening court proceedings for her failure to remit the penalty. Not only did she refuse to pay, Del Campo filed a suit against ACCS and the Santa Clara’s DA’s office. In Del Campo v. American Corrective Counseling Services, Del Campo sued on “equal protection” and “due process” grounds, citing several violations of the California Constitution, and of both the California Unfair Business Practices Act (CUBPA) and the federal Fair Debt Collection Practices Act (FDCPA). The United States District Court of the Northern District of California dismissed all but the CUBPA and FDCPA claims. And after a stay of several years pending a court decision in Iowa, Del Campo was allowed to amend her complaint to include allegations based on conversion, negligent misrepresentation, and fraudulent misrepresentation. While both ACCS and the Santa Clara DA claimed “state sovereign immunity,” the court found that, because the DA had not acted in a state-related capacity, immunity did not attach. But since the court had dismissed the claims asserted against the DA, the DA was no longer involved in the litigation. Even though ACCS contended that it acted on the state’s behalf when it conducted the program, the District Court denied immunity because the program was a county endeavor and not a state program and ACCS’s involvement was not “a central function of the state government.” On appeal, the Ninth Circuit Court of Appeals affirmed, but for different reasons. While sovereign immunity applies to state governments, this protection does not extend to many “state-created and quasi-governmental” entities. Given that context, the CA9 believed it needed to be “extremely hesitant to extend this fundamental and carefully limited immunity to private parties whose only relationship to the sovereign is by contract.” In fact, the CA9 went as far as to characterize it “strange” to grant immunity to such companies, merely due to their contract status. Since ACCS lacked immunity from suit, the CA9 affirmed the District Court’s order and allowed the litigation to proceed to trial on the issues raised by Del Campo. Looks like ACCS may end up writing a few checks of its own. (Hope they're good.) To download a copy of the CA9's decision, please use this link: Del Campo v. Kennedy
 In Matter of Elvin G., Elvin was adjudicated a “juvenile delinquent” after his school’s dean found a hunting knife in the kid’s pocket.
The dean was summoned to the classroom when a teacher complained of disruptive sounds, possibly from a cell phone, emanating from an unknown source. In order to find the culprit, students were directed to empty their pockets. Elvin reportedly removed a knife and held it in his hand, for all to observe. The Bronx County Family Court found Elvin guilty of unlawful possession of a weapon, and placed him with the Office of Children and Family Services for a year. Although Elvin filed a motion to suppress the introduction of the knife at his hearing -- claiming that the search was unlawful because the dean had “no reasonable suspicion that [Elvin] was engaged in any illegal activity” -- that motion was denied. On appeal, the Appellate Division, First Department, agreed with the Family Court and concluded that “the dean simply sought to restore order to a disrupted classroom, which is not a law enforcement interest. Therefore, the dean’s subsequent actions required neither probable cause nor reasonable suspicion to justify asking students to empty their pockets.” Even if a “search” had taken place “the dean’s actions were reasonably related to restore order to the classroom and the search was not excessively intrusive in light of [Elvin’s] age and sex and nature of the infraction.” Two dissenters - Justices Lippman and Catterson -- were of the opinion that there were inconsistencies as to how the knife came into plain view. Because of those differing accounts, the two justices believed a suppression hearing was necessary to resolve that dispute. Moreover, the dissenters believed that additional fact-finding was necessary to determine whether a pocket search was the least intrusive way to find the cell phone, and whether the search struck a reasonable balance between the students’ privacy rights and the school administrators’ interests. While “school authorities are given wide latitude to conduct searches on school premises, [that] does not mean that students forfeit all their Fourth Amendment rights when they step through school doors.” Yeh, right! (Do you hear something ringing?) To download a copy of the Appellate Division’s decision, please use this link: Matter of Elvin G.
 At what point does an “illegal” search become a “legal” one? Apparently, the New York County Supreme Court and the Appellate Division, First Department, had some different perspectives on that issue.
In the case of People v. Packer, when Andrew Packer was frisked after his car was pulled over by the police, officers uncovered a small knife. Moments later, when Police Officer Jones asked Packer for identification, Packer reached for a backpack, but was stopped by the officer who then asked if he could retrieve the identification from the backpack. When Packer consented to the search, Jones discovered a second knife. The New York County Supreme Court concluded that the first knife had been illegally obtained by an unwarranted search and suppressed its introduction at trial. But, as to the second knife, the court held that Packer voluntarily, without coercion, gave his consent to a search. As a result, Packer was sentenced to one-and-a-half to three years in prison for attempted possession of a weapon in the third degree. On appeal, the Appellate Division, First Department, reversed. Because the vehicle had been blockaded by the police, and Packer was prevented from leaving the scene, the AD1 was of the opinion that Packer had been in constructive police custody. In order to convict Packer, prosecutors had to show that Packer’s consent to the backpack search was voluntary and not the result of coercion. Consent is not voluntary unless “it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice.” Here, the AD1 found that the initial frisk was “highly intrusive police conduct, the coercive effect of which could not have abated when, only moments later, [Packer] consented to the search of his [back]pack.” Accordingly, the judgment was reversed and the indictment dismissed. In a lengthy dissent, Justice Bernard J. Malone, Jr. advocated the application of a balancing test, “weighing the degree of intrusion entailed against the precipitating and attending circumstances out of which the encounter arose.” Here, Malone was of the opinion that the “search was not overly intrusive; nor was it an invasion of (Packer’s) privacy.” We’re wondering if Packer is still packing? To download a copy of the AD1’s decision, please use this link: People v. Packer
 After observing an erratically driven vehicle, State Trooper Jason Lewis triggered his emergency lights and directed the car to pull over. As he approached, Lewis noticed the driver, Dorian Hackett, leaning toward the passenger seat. When asked to explain those movements, Hackett indicated that he was merely reaching for his cell phone, which he displayed to the officer.
Dissatisfied with that explanation, Lewis ordered the driver to exit the vehicle and handcuffed him for “safety reasons.” The officer then placed Hackett into the police cruiser and ran a warrant check. Even though there were no outstanding warrants, Lewis returned to Hackett’s vehicle, opened the passenger side door and undertook a search which eventually led to the discovery of a loaded handgun and some cocaine. Hackett asked the County Court of Chemung County to suppress or prevent the introduction of the handgun, the ammunition, and the cocaine into evidence, but the Judge denied the request and convicted Hackett of criminal possession of a weapon in the third degree. On appeal, Hackett claimed that the officer had no legal basis -- or “probable cause” -- to do the search and the Appellate Division, Third Department, agreed. According to the AD3, Hackett’s conduct didn’t justify the officer’s conduct, particularly since the officer hadn't been presented with any actual or specific danger (nor had any other justification to conduct the search). Since the motion to suppress should have been granted, the AD3 ordered Hackett’s conviction reversed. Clearly, this is an example of a search which just didn’t hack it. To download a copy of the Appellate Division’s decision, please use this link: People v. Hackett
 Edward Watkins had been serving as a volunteer coach for a girls’ high school basketball team when a report surfaced that he had “engaged in inappropriate conduct.”
After the Special Commissioner of Investigation for the New York City School District (SCI) conducted an investigation and concluded that Watkins “had engaged in inappropriate and extensive telephone contact with four female students,” the New York City Department of Education (DOE) placed Watkins on its Ineligible/Inquiry List. In Matter of Watkins v. New York City Department of Education, Watkins challenged the DOE’s decision and argued that SCI’s report was made “illegally, arbitrarily and capriciously,” and, that its decision should be vacated. But, the New York County Supreme Court sided with the DOE, and granted the agency's motion to dismiss the case. On appeal, the Appellate Division, First Department, found that the SCI’s report and the DOE’s decision were rational and substantially supported by telephone records. In addition, the AD1 held that, “DOE was not required to afford [Watkins] notice or an opportunity to be heard prior to making its determination since he had no legitimate claim of entitlement to continue his role as a volunteer coach.” The AD1 was also unmoved by his “stigma-plus” due process claim,* since Watkins “had not denied the truth of the central factual assertions.” In addition, the court noted that the DOE could not “be held responsible for speculation and rumors that may have been spread by members of the school community concerning the reasons for the nonparty SCI investigation.” As a result, the case’s dismissal was unanimously affirmed. Apparently, the ball is now back in Watkins’ court. Is anyone coaching him on what to do next? To download a copy of the Appellate Division’s decision, please use this link: Matter of Watkins v. New York City Department of Education ____________________
*A stigma-plus due process claim is designed to protect public employees from the dissemination of damaging employment information. The process prohibits release of that data until the employee is afforded the procedural protection of a name-clearing hearing.
 A Manhattan condo dweller sued his fellow owners for $23.5 million in compensatory damages based upon "an alleged failure to make handicap accessible the residential condominium in which the disabled plaintiff and his wife" resided.
In Pelton v. 77 Park Avenue Condominium, Dean Pelton was unable to maneuver common-area steps due to muscular dystrophy, a degenerative disease. In June 2002, the condominium’s president was advised of Pelton’s physical disability and a request was made to make the building “handicap accessible.” While there was an initial period of inactivity, in late 2003, after an informal complaint was filed with the New York City Commission on Human Rights (HRC), architects were eventually retained by the building to advise of possible wheelchair-accessible modifications. It was not until June of 2004 that the board finally advised Pelton that it had a plan to address his concerns. In the short term, to facilitate access to the stairs leading to the passenger and service elevators, the board offered to install a portable wheelchair lift which would be operated by building personnel (who were on duty 24 hours a day). Over the long-term, the building would install platform lifts to both the passenger and service elevators. Discussions faltered when Pelton refused to sign a letter agreement consenting to the proposal. Despite this impasse, and Pelton’s filing of a lawsuit in the New York County Supreme Court, the condominium installed a portable stair climber in the building’s lobby at the cost of $13,000 and secured the vote of the building’s other unit owners to a special assessment in the amount of $130,000 to fund the renovation plan. When the condo asked for the case's dismissal, the New York Supreme Court denied the request asserting that the condo board enjoyed no immunity for its actions since unlawful discriminatory conduct had been alleged. On appeal, the Appellate Division, First Department, disagreed and found that considerable deference must be given to a board's decision-making process unless a shareholder can establish the existence of elements espoused by the Court of Appeals in its 2003 case of 40 W 67th St. v. Pullman. As our state's highest court noted in that opinion: To trigger further judicial scrutiny, an aggrieved shareholder-tenant must make a showing that the board acted (1) outside the scope of its authority, (2) in a way that did not legitimately further the corporate purpose or (3) in bad faith.
Since he couldn't prove the existence of at least one of these three factors, Pelton's case could not survive. Because the building employed several measures to accommodate him -- including retaining architects, debating possible structural solutions, purchasing a temporary lift and holding a board meeting to discuss financial plans -- the the AD1 did not believe that Pelton was able to show any "bad faith" or discrimination by the board or its members. Moreover, his claim that the board employed discriminatory “stall tactics” was found to be without merit. The AD1 was concerned that exposure to suits would discourage volunteer service on boards. In that regard, the appellate panel wrote: Courts must hold those who would challenge the decisions of condominium and cooperative boards to the requirement of pleading with specificity claims of discriminatory conduct or wrongdoing. Otherwise, the threat of baseless litigation, with its attendant serious financial and personal burdens, would pose a formidable obstacle to those willing to volunteer their talent, experience and knowledge for the common good of their homeowner communities by serving on such a board.
The AD1 was quite accommodating, wouldn't you agree? To download a copy of the Appellate Division's decision, please use this link: Pelton v. 77 Park Avenue Condominium
 In People v Gayle, the Queens County Criminal Court convicted Rudolph Gayle of criminal possession of a weapon in the fourth degree.
On appeal to the Appellate Term, Second Department, Gayle challenged the Criminal Court’s denial of his motion to suppress the introduction of a knife which had been found after Gayle was stopped by police. Gayle argued that, because the unsignaled lane changes for which he was stopped were not violative of law, the officers lacked “probable cause” -- or a legal basis -- for their conduct. By failing to raise that specific issue below, the AT2 was of the opinion that Gayle had not preserved the argument for appellate review. Despite that error, the AT2 explained that signalless lane-changing violated Vehicle and Traffic Law § 1163 and thus justified the officers’ conduct. If nothing else, the AT2 was sending a very clear signal to Gayle. To download a copy of the Appellate Term’s decision, please use this link: People v Gayle
 According to the Tennessee Court of Appeals, St. Thomas Hospital in Nashville, Tennessee was an “equal opportunity oppressor.”
In Frye v. St. Thomas Health Services, Joan Frye, an accounting services manager, sued her former employer claiming that she had been subjected to age discrimination and a hostile workplace environment. Frye allegedly endured “bullying, vicious, vile and vindictive behavior” from her direct supervisor, Catherine Doyle. (When hired, Frye was 54, Doyle was 41.) Doyle, who “rains a holy terror on those below (her), unless you are within her little clique, which is only people in their 20s and 30s,” supposedly favored younger employees by offering them greater pay, allowing them more flexible hours, and socializing with them. In addition, meetings would be held without Frye, she wasn’t introduced to management, and was criticized over trivial issues. After working with Doyle for two years, Frye transferred to a different hospital. Shortly thereafter, Frye left that job suffering from systems related to post-traumatic stress disorder. During the course of Frye's lawsuit, the Davidson County Circuit Court granted the hospital’s request to dismiss the case, finding that Frye had failed to prove an entitlement to relief. On appeal, the Tennessee Court of Appeals agreed, noting as follows: It is necessary to distinguish between harassment and discriminatory harassment to insure that discrimination laws do not become a general civility code … The fact that a supervisor is mean, hard to get along with, overbearing, belligerent or otherwise hostile and abusive, does not violate civil rights, unless (motivated by one’s age, race, sex or other protected class characteristic).
According to that appellate court, because Doyle was an “equal opportunity oppressor, using her intense, dominant, abrupt, rude and hard-nosed management style on all St. Thomas employees,” the hospital avoided liability for its supervisor's conduct. Although these claims can be difficult to establish, there has been some progress with work-relations legislation in the last few years. California, Connecticut, Hawaii, Kansas, Massachusetts, Missouri, Montana, New Jersey, New York, Oklahoma, Oregon, Vermont and Washington, are all endeavoring to end “workplace bullying.” Whether a “workable” definition will be found, or whether this kind of protection will flood our courts with baseless lawsuits, remains to be seen. While that all gets sorted out, we are one nation, indivisible, with liberty and workplace harassment for all! To download a copy of the Tennessee Court of Appeals' decision, please use this link: Frye v. St. Thomas Health Services
 In the Matter of Mercado v. Selsky, after a search of Israel Mercado's cell, correction officers filed a "misbehavior report" which cited Mercado for possession of gang related material.
Although Mercado claimed a First Amendment right to the "contraband," he was still found guilty after a disciplinary hearing. An administrative appeal ensued and the outcome remained unchanged. Intent on overturning the underlying determination, Mercado filed a special lawsuit -- a CPLR Article 78 proceeding -- with the Albany County Supreme Court which transferred the case to the Appellate Division, Third Department. The AD3 affirmed the charge and noted that the restrictions were not constitutionally violative since they were “reasonably related to the legitimate penological interest of maintaining prison security.” Apparently, when it comes to prisons there's little room for play, boy. To download a copy of the Appellate Division’s decision, please use this link: Matter of Mercado v. Selsky
 In acknowledgment of our readers' Second Amendment rights, and until such time as District of Columbia v. Heller is overturned, we'll be providing you with a list of upcoming gun shows.
Here's the first installment of our new series. If you're interested in acquiring "investment quality" machine guns and other firearms, you can't miss this event: Eastern National Gun, Knife & Military Collectibles Show & Sale | Date & Time | December 8-9, 2007 | Farm Show Complex, 2300 North Cameron Street Harrisburg, PA |
| Contact | Nick Jubinski | Phone | 570-679-2250 | Email | maacpsse@echoes.net | Website | http://www.maacpsse.com |
Looking for something closer to home? Then check-out these venues: December 8-9, 2007 Knights of Columbus Hall 2735 Union Road, Cheektowaga Niagara Frontier Collectors info: nfcshows@aol.com or Freeport Recreation Center 130 East Merrick Road, Freeport Long Island Antique Historical Arms Society, Inc. contact: Dave Gruner @ 631-722-3248 December 15-16, 2007 Orange County Fairgrounds 239 Wisner Avenue, Middletown contact: Mid Hudson Promotions, 914-248-1000 January 27 - 28, 2008 New York State Arms Collectors Assn. Empire State Plaza, Albany, New York contact: Sandy Ackerman Klinger. 607-748-1010 * * * "Nothing beats a gun show for finding great deals on knives and beef jerky ...." 
According to a November 2007 report released by the Center for Independence of the Disabled, NY, New York City's poll sites present "barriers that make voting difficult or impossible for the City's 1.6 million voters with disabilities." After surveying some 50 sites, only eight locations were found to be "barrier-free." Here are some of the problems CIDNY uncovered: Half of the surveyed sites had "inadequate, poorly placed or missing" directional signs Thirty percent had "inaccessible ramps" Over half "made it difficult or impossible for a voter with a disability to enter Nearly half "had barriers that prevented access to voting machines"
What we found particularly troubling was the reported "insensitivity" to the needs and concerns of the physically challenged. For example, some of the poll workers and supervisors are said to have made the following statements to CIDNY surveyors: "We don't have handicapped people in this neighborhood." "In my twenty years working at this site, I've never seen a handicapped person vote." "Everyone knows about the pool site. They can ask anyone in the neighborhood." "Everyone knows where the machines are." "People with wheelchairs vote here. We have a ramp." "If a wheelchair comes in, we'll move the table." "No one's tripped over the rug yet." "Most people who need help voting come with someone that can help them." "There is an accessible entrance. The main entrance is only for regulars."
This intolerance and indifference can not stand. And, if nothing else, CIDNY's analysis evidences that our public officials have, yet again, "dropped the ball." Rather than spending millions of our tax dollars on "pork," why not allocate a portion of those monies to enforce existing laws -- such as the Help America Vote Act (2002) and the Americans with Disabilities Act (1990) -- and thus safeguard the fundamental civil rights of our fellow New Yorkers? As CIDNY observes, "New York City must ensure voters with disabilities the opportunity to vote like everyone else. It is a civil rights issue, it is the law and it is the right thing to do." To download a copy of the report, please use this link: CIDNY Poll Site Accessibility Survey 2007
 In District of Columbia v. Heller, the U.S. Court of Appeals for the District of Columbia became the first federal appellate court to find a gun-control law violative of the Second Amendment. (Later today, the U.S. Supreme Court will be deciding whether to review this case on appeal.)
Our nation’s highest court hasn't addressed the Second Amendment directly since United States v. Miller, a 1939 decision whose ambiguity allowed it to be claimed as a victory by both sides to the debate. Second Amendment advocates typically fall within one of two camps: the “collective rights” proponents or the “individual rights” theorists. The former view the Second Amendment as limited to military affairs and view it guaranteeing a civic, rather than an individual, right. The latter are of the opinion that the Constitution grants a right to each person, independent of any duty to serve in a state militia. In 2001, the Fifth Circuit Court of Appeals became the first to hold that the Second Amendment bestows a right on individuals. That decision opened the door to Heller, which was brought in response to an ordinance that had been on the books in D.C. since 1976. The law banned handguns and required rifles and shotguns to be disassembled or to have trigger locks. Originally captioned Parker v. District of Columbia, five out of six of the plaintiffs were dismissed for lack of standing, leaving Heller, an armed security guard who, unlike the others, had applied for. and been denied, a registration certificate to own a handgun. Though the Second Amendment[1] clocks in at a terse 27 words, it supplied the fodder for a 75-page opinion that reads like a catalog of the arcane and obscure, and includes citations to England’s Bill of Rights of 1869 and a dusty tome of 18th century vintage entitled Desultory Reflections on Police, by William Blizzard. Luckily, the opinion can be condensed down to a few key points. First, there was much ado about the Second Amendment's prefatory language. According to the D.C. Court of Appeals, the use of the definite article, “the,” before the word “right,” did not confer a new right, it simply acknowledged and affirmed a pre-existing one. The majority believed a right to bear arms for hunting and protection of hearth and home would have been a foregone conclusion in the framers’ time. And their use of the words “the people” drives that point home since, throughout the Bill of Rights, those identical words are used to denote an individual right, and not that of an amorphous collective. Had the framers’ intended to carve out a collective right, they demonstrated themselves capable of doing so in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” [Emphasis added] According to the D.C. Court of Appeals, “it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison)” would not have employed “a more direct locution, such as “Congress shall make no law disarming the state militias” or “States have a right to a well-regulated militia.” Further, the Second Amendment would have been an “extremely silly exercise” if the survival of the militias it sought to protect were manned by volunteers who did not have, and could not bring, their own private arms. The dissent harangued the majority’s decision as “at best an advisory treatise on this long-running debate.” The dissent looks to Miller as the seminal case on the issue and finds that it resolves it, decisively, in favor of the “collective rights” camp and, until the U.S. Supreme Court revisits the matter, the Circuit Court was obligated to follow that lead. Will the United States Supreme Court start off this holiday season with a bang?
(We're hoping they'll take a shot at it.) To download a copy of the D.C. Court of Appeals's decision, please use this link: District of Columbia v. Heller
[1] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
 A week before wildfires set southern California ablaze, Governor Schwarzenegger set sparks of his own when he signed into law a school anti-discrimination bill, which was characterized by the Campaign for Children and Families as a “sexual-agenda bomb dressed up as a child-caring Easter egg.”
The new law expanded the list of prohibited bases of school related discrimination ("race, sex, color, creed, hanicap, national origin, or ancestry") to include "disability, gender, nationality, race or ethnicity, religion, sexual orientation, or any other cahracteristic contained in the definition of hate crimes that is contained in the Penal Code." Gender-based claims, for example, will now encompass “gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The bill's prior incarnation was vetoed in early September midst public outcry to a provision prohibiting textbooks that “reflect adversely” on a person based on sexual orientation. That language was stricken from the recently enacted (and declawed) version of the bill. But conservative organizations in California are still clamoring against the law and their rhetoric is panicked. The Campaign for Children and Families is urging parents to pull their children out of public schools and the Capitol Resource Family Impact is trying to obtain a ballot referendum to overturn the law as part of its “Save Our Kids” campaign. The law’s supporters have fended off these attacks by noting that the new statute merely clarifies school anti-discrimination laws that are already on the books. Opponents argue that the law’s broad language, which prohibits discrimination based on even “a perception that the person has any of those [defined] characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics,” will allow absurd claims to proliferate. Conservatives counter that bastions of American culture, like a prom “king” and “queen,” and gender-specific sports such as football will be trampled by discrimination-based claims. (We’ll miss those sacred rituals, now won’t we?) The law will take effect in January 1, 2008, unless a ballot referendum can muster the support of some 400,000 people. (Can that many Californians really be so discriminating?) 
To download a copy of the legislation, please use this link: SB777
 A reader forwarded an article which is being disseminated by Monster.com, a self-described "global employment solution" website.
According to the company's promotional materials, "Monster works for everyone by connecting employers with quality job seekers at all levels and by providing personalized career advice to consumers globally." In an article entitled, "Ten 10 Annoying Work Habits," a New York recruiter, Jennifer Star, is quoted as identifying ten ways to become a pariah of the workplace. They are: 1. Being unprepared. 2. Not being a team player. 3. Not being self-reliant. 4. Emitting foul odors. 5. Being loud on the phone. 6. Being "unhealthy." 7. "Walking like an elephant." 8. Having your cell phone always on. 9. Having your computer volume "too loud." 10. Shaking hands "like a fish" and avoiding eye contact.
While certainly humorous in some respects, from a legal standpoint, why do we get the feeling that an employer would be subjected to costly workplace-discrimination litigation if at least half of those items were listed on an evaluation form or cited by an employer as the basis for an employee's discipline or termination? In our humble opinion, Monster.com is doing a disservice by circulating that piece. It desensitizes people to the underlying causes of an "abnormal" gait, a weak handshake, inattentiveness or lack of focus, odors, or the sound levels at which co-workers may communicate (or set their electronic devices). The piece struck us as insensitive to the needs of people with physical and mental challenges, and appears to foster a form of intolerance which may run afoul of laws such as the Americans with Disabilities Act (ADA). Even though it's Halloween, we couldn't resist chastising Monster.com for acting a bit too monstrously in this particular instance. To view a copy of the Monster.com article, please use this link: Top 10 Annoying Work Habits
 On October 23, 2007, the New York County Supreme Court, denied a request to compel the disclosure of an anonymous blogger’s identity.
In Greenbaum v. Google, Pamela Greenbaum, an elected schoolboard member alleged that a blogger, with the online moniker of “Orthomom,” posted on a Google-owned website, defamatory statements which referred to her as an “anti-semite” and a “bigot.” Upon the court’s own motion, Orthomom was notified of the case’s pendency, appeared anonymously by way of pro bono counsel, and moved for leave to intervene. The court granted Orthomom’s motion, subject to an in camera disclosure of her identity. New York appellate courts have not addressed the safegaurds available to anonymous Internet commentators, but courts in other states have granted First Amendment protections to anonymous Internet "speech," ciiting a public policy which seeks to foster the unfettered exchange of ideas. However, those same courts have also recognized that perpetrators of allegedly tortious acts should not be allowed to use the First Amendment as a shield and have thus applied a balancing test -- weighing an injured party's rights as against a writer’s constitutional entitlement to retain anonymity. At Orthomom’s urging, the New York Supreme Court court followed Dendrite Intl. v. Doc, a New Jersey case which requires a litigant to set forth with specificity the alleged defamatory statements and to make a showing of the dispute's merits before the court will direct the disclosure of an unidentified poster's identity. Greenbaum was unable to satisfy that two-pronged standard as the statements upon which her case relied were found to be "plainly inactionable as a matter of law.” Since Orthomom's posted statements were "incontrovertibly true," and not defamatory in nature, Greenbaum's request for the disclosure of Orthomom's identity was denied, and the case was dismissed. (Apparently, Orthomom never referred to Greenbaum as a "bigot" or an "anti-semite.") Now go ahead and post that! To download a copy of the New York County Supreme Court's decision, please use this link: Greenbaum v. Google To view related posts, please use this link: Defamation
 In Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City University of New York, the U.S. Court of Appeals for the Second Circuit vacated a preliminary injunction, allowing a local college to refuse to recognize a male-only fraternity as an official club.
As part of its educational mission, the College of Staten Island (CSI), part of the City University of New York, promotes pluralism and diversity. To that end, the school has a policy of “provid[ing] services for students without regard to ... sex.” To advance those objectives, CSI recognizes, and confers benefits on, certain student-formed clubs whose goals include the “promotion of service,” “spiritual growth and development,” and the “promotion and development of cultural diversity and awareness.” Additionally, CSI-recognized groups are required to comply with its non-discrimination policy. In September 2005, Chi Iota Colony, an all-male Jewish fraternity of about 20 members, sought recognition by the college. While the fraternity had existed for years without recognition, a conferral would have given the fraternity access | | |
