Animals have rights too!

November 4, 2010

Last month, Suffolk County became a leader in animal abuse protection. Suffolk County legislators passed a law calling for the nation’s first animal abuse registry. The law requires those convicted of abusing animals to register their name, address, and a photograph with the registry. Sensitive to the concerns about the cost of maintaining such a registry, the legislation also required that each offender must pay an annual fee of $50 for the five years they are required to register with the database. Additionally, the database will not be run by Suffolk County, but by the Suffolk County Society for the Prevention of Cruelty to Animals. If a convicted abuser fails to register, they will face either jail time or a significant fine of $1,000.

MEGAN’S LAW FOR ABUSED

A happy day for animals in Suffolk County

ANIMALS

The registration of convicted criminals is nothing new. Megan’s Laws, designed to assure the authorities and public of the whereabouts of convicted sex offenders, have been in effect for years. The animal abuse registry is designed to have a similar effect. The list of abusers will be open to the public, so that pet owners and neighbors may know who, within their community, is potentially a threat to their companion animals.

The motivation for the law’s passage is really two fold. First, Suffolk County has been home to a number of horrid animal abuse cases within the past year. Most notably, a Selden woman who tortured, killed and buried kittens, cats, and dogs in her backyard made national headlines as her heinous acts were finally halted after her children reported her to the authorities. The second motivation for the bill’s passage, was articulated best by the registry’s champion, Suffolk County legislator Jon Cooper. Cooper told reporters, “[w]e know there is a very strong correlation between animal abuse and domestic violence… Almost every serial killer starts out by torturing animals.” Cooper observations have long been known to those working within the field of animal abuse and domestic violence.

A New Jersey study found that 88% of families with children that had experienced physical abuse, also recorded incidents of animal abuse within the home. Also, it is estimated that 88% of pets living in households with domestic abuse are either abused or killed. The link between animal abuse and serial killers is also very real. Studies have showcased that the vast majority of convicted serial murders have had a history of animal abuse. This list includes people such as the Son of Sam killer David Berkowitz, Jeffrey Dahmer, and the Boston Strangler Albert DeSalvo.

The idea for the registry was nothing new. In fact, the registry has been or is currently being considered in a number of states and counties, including California, Minnesota and New York State. The registry is the brainchild of Animal Legal Defense Fund (ALDF), an organization dedicated to protecting the lives and advancing the interests of animals through the legal system. ALDF’s hope is that, as with the proliferation of Megan’s Law a decade ago, Suffolk County’s passage of the animal abuse registry will translate into the passage of similar laws throughout the nation.

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Governor David Patterson has established a juvenile justice task force authorized to investigate circumstances and procedures for sentencing juveniles in the State of New York. The task force has suggested that New York should stop sentencing low risk juvenile offenders to facilities far from their family residences. The task force has suggested in the alternative that they be sent to lower cost community based programs.

The community based programs would closely monitor the juveniles. They would establish mentoring programs for these children. There would be curfew checks, review of school performances and detailed after school programs to keep them busy. The study has shown that low risk juveniles who have been placed in similar programs can be rehabilitated without the need for institutionalization.

The task force recommendations are excellent. However, the State of New York will not be carrying them out. The budget submitted by Governor Patterson does not contain funds or programs that would encourage localities to develop the recommended community based alternative programs.

Under the current system, New York State reimburses localities for about half the cost of operating pretrial detention programs for juveniles. These costs can be as high as $200,000 per child, per year, to incarcerate a juvenile in a large institution. Presently the state has no program to reimburse localities for community based programs. These programs can cost as little as $5,000 per year.

Senator Velmanette Montgomery, a democrat from Brooklyn has proposed a bill in the State Senate to set aside $12 million to encourage programs for juvenile criminal offenders. These bill is a step in the right direction. Hopefully the legislature of the State of New York will approve it.

If your son or daughter has been charged with a juvenile offense, the attorneys at the Law Offices of Elliot Schlissel can help you.  Call us at 1-800-344-6431 or email us.

Miranda warnings given to individuals arrested in th United States are given based upon the United States Supreme Court’s decision in Miranda v. Arizona. The Miranda warnings require the police officer, FBI agent or other governmental arresting officer to advise the arrestee that anything they say or do could be held against them, that they have a right to an attorney and if they cannot afford an attorney, an attorney will be appointed for them.

President Obama is considering supporting a law that would either delay or eliminate the Constitutional Miranda warnings when dealing with individuals charged with terrorism. Constitutional attorneys and former prosecutors have discussed a terrorism exception with regard to giving Miranda warnings to individuals arrested for terrorist acts. They suggest a terrorism exception could last up to 48 hours before the Miranda warnings would have to given to the suspect. There has also been a discussion of a statue authorizing emergency detention of individuals suspected of having committed terrorist attacks.

The United States is currently the only country in the world that gives individuals suspected of being charged with crimes various warnings to protect themselves from making statements that could be used against them at trial.

I personally believe that the Miranda warnings are important protections for individuals suspected of committing crimes. However, a 48 hour exception to the Miranda rule should be carved out for suspects charged with terrorist acts. We live in a world in which terrorists seek to take away the basic freedoms that we have fought so hard to protect. This minor exception to the Miranda rule in certain circumstances maybe necessary to protect the lives of Americans against catastrophic terrorist attacks.

Is it a common practice for police to use a search warrant to strip search every person in a location without a strong indication the place is “devoted” to criminal activity.

Recently the New York State Court Of Appeals said that drugs found on one man in 2006 during a raid of an apartment in Syracuse can not be used as evidence.  Robert Mothersel and six other individuals were stripped searched on this occasion.

The New State Court Of Appeals said broad-based search warrants are unconstitutional unless police surveillance shows every person at a particular location would have contraband or criminal evidence on them. In the case involving Robert Mothersel, the court found the strip searches were inappropriate. Mr. Mothersel was stripped searched and a body cavity search was conducted. Drugs were found in his buttocks. At the time of the search Mr. Mothersel was not under arrest. The Court of Appeals found the drugs found in Mr. Mothersel’s buttocks were illegally obtained and could not be used against him in court.

A Syracuse detective involved in the case stated at a court hearing “in the execution of hundreds of all-person-present warrants, the people were routinely stripped searched and required to facilitate the examination of their anal and genital cavities.”

Judge Libbman, writing for the New York Court Of Appeals, described circumstances wherin such broad-based strip search warrants would be approved.

He stated “we think it is clear that surveillance of a location may yield a factual basis to infer with the requisite force that the place is devoted to an ongoing illicit purpose, such as the manufacturing or marketing of narcotics, . .  . and that all those present at the time of the contemplated search will probably in possession of contraband or other specified evidence of illegality.”

Strip searches, and especially body cavity searches, can amount to the deprivation of the most basic rights of privacy a United States citizen should expect. We hope you never experience this humiliating situation. If you or a family member were improperly subject to an outrageous violation of your right to privacy feel free to call us at 1-800-344-6431 or contact us by email. We will protect your rights.

Governor David Patterson, in the State of New York has recently signed into law the Family Health Care Decisions Act. This statute authorizes health care decisions to be made for a person who is incapacitated and has not prepared a healthcare proxy specifically indicating his or her wishes. This statute authorizes family members without a written advanced directive to make decisions to withhold or withdraw life support systems for their family members.

The best means for dealing with making of medical decisions, if you should become disabled or incapable of making your own medical decisions, is to execute a health care proxy appointing someone you trust to make these decisions for you. Unfortunately more than 75,000 incapacitated individuals die each year in the State of New York with out having a health care proxy. Court decisions have ruled that life sustaining treatment cannot be withheld or withdrawn without clear and convincing evidence that the person would decline if they could. This has resulted in people being subject to fruitless treatments that actually violates their personal wishes or religious beliefs.

The new statue sets up a hierarchy to determine those individuals who can make the choices. The list of individuals capable of making these choices range from a guardian, to spouse, to a domestic partner, an adult son or daughter, parent, adult brother or sister, and/or some other relative or close friend. The purpose of the statue is to prevent needless medical treatment for those who, if they were competent, would not want it.

- Elliot Schlissel, Esq.

Image courtesy of Sun Sentinel

Approximately 20 states have mandatary retirement ages of between 70 and 72 for judges. Several others have mandatory retirement ages of between 70 and 75.

Nine states are currently considering legislation to increase or eliminate mandatory retirement ages for judges. New York is one of those states. In New York the mandatory retirement age for judges is currently 70 years of age.

State Senator Thomas Duane from Manhattan has requested the repeal of mandatory requirement ages for judges in the State of New York. Currently judges in New York state must retire when they turn 70. They can remain on the bench for up to three 2 year terms if they can prove their physical and mental fitness to continue serving in judicial capacity.

It will be necessary to amend the New York State constitution to change the forced retirement of New York judges. This will require two separately elected Legislatures to pass this amendment to the state constitution. It will then need to be passed by the voters in a state wide referendum before it can go into effect.

Federal judges do not have mandatory retirement ages. Many federal judges serve well into their 80′s.

United States Supreme Court Judge John Paul Stevens, age 90, has recently indicated he is going to retire. Justice Stevens had a remarkable career on the United States Supreme Court and his age has never slowed him down.

I regularly appear before Supreme Court Judges in their 70′s. They are experienced, dedicated, public servants should not have their judicial careers forcibly curtailed due to an antiquated forced retirement law. I recently celebrated my 60th birthday. Friends told me that 60 is the new 40. I have reflected on this suggestion. I now have20 more years of experience as an attorney now than I had when I was 40. I am better at almost every aspect in handling the rigors of my profession today then I was when I was 40. I suspect the same is true for judges with many years of experience. I urge the Legislature to quickly pass the law eliminating forced judicial retirement.

-Elliot S. Schlissel, Esq.

Picture courtesy of toonpool.com.

There are presently more than a dozen pieces of legislation pending in the New York State Legislature to expand the use of DNA material. Recently a DNA data bank was utilized by Westchester County legal authorities to match the DNA of Francisco Acevedo for the murders of three woman in Yonkers from 2009.

Francisco Acevedo was arrested while driving intoxicated on January 26, 2009 in Brentwood Long Island. As part of that arrest Mr. Acevedo’s DNA was taken from him last year while he was serving a prison sentence in upstate New York. This was a result of multiple felonies convictions for driving while intoxicated convictions.

His DNA was compared to a data bank maintained by the State of New York which was established in 2004. The data bank linked him to three murder victims. Mr. Acevedo now faces multiple charges of first and second degree murder. Presently state law requires DNA to be collected from individuals convicted of felonies and a variety misdemeanors. The state of New York currently obtains DNA material from approximately 46% of all individuals convicted of crimes.

State Senator Dean Skelos, from Rockville Centre New York , wants the law modified so that DNA samples are taken from every single person arrested or under suspicion for committing a felony or misdemeanor.

State Senator Skelos claims that the Acevedo case is a good example of the types of crimes that would be solved if the states DNA data bases were expanded. Senator Skelos further stated that the expanded data base could solve crimes going back as long as 30 years. Senator Skelos was asked if he had privacy concerns regarding the expanding of the data base. His response was his job was to protect the public.

Expanding DNA data bases may be helpful in solving some crime however the over expansion of DNA collection makes me think of Aidous Hudley’s book “A Brave New World”. Americans are entitled to rights of privacy. A reasonable accommodation should be made for DNA collection but not at the expense of basic rights for American citizens.

If you are under suspicion or charged with a crime, contact the law office of Elliot S. Schlissel. We have been helping our clients with criminal matters for more than 30 years. Contact us at 1-800-344-6431 or by e-mail.

Picture courtesy of criminals.com.

New York Governor David A. Patterson has recently signed a law that modified the statutory language regarding attorneys who represent children in the Family Court of the State of New York . We wrote about an attorney’s obligations to a child clint HERE. Attorneys representing children in New York Family Courts have the title “attorney for the child”. The former terminology referred to attorneys who represented children as “Law Guardians”.

The change is much greater than just a change in terminology. It is a change in philosophy. The terminology “attorney for the child” makes it clear that the court is dealing with a lawyer advocate for the child’s position. The proper role for the attorney for the child is to advocate what the child wants in delinquency proceedings, child custody proceedings, visitation proceedings, foster care proceedings and other proceedings brought before the Family Court in the State of New York.

The initial change in the statutory language from Law Guardian to an attorney for the child started in October 2007 when Chief Judge Judith Kay sighted section 7.2 of the Rules of the Chief Judge in which she adopted advocacy standards for attorneys who represented children recommended by the Milla Commission.

“In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in manner consistent with child’s capabilities and have a through understanding of the child’s circumstances” section 7.2 states.

” If the child is capable of knowing, voluntary and considered judgement, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interest”.

This rule requires an attorney to explain the options available to his or her child client. The attorney can make recommendations to the child which the attorney feels would be in child’s best interest. The attorney can only deviate from the child’s wishes if there is a “substantial risk of eminent, serious harm to the child” if the child wishes are granted.

The purpose of the change in language is to eliminate any confusion over what role the attorney for the child fills. Attorney’s for children now must vigorously and diligently advocate the child’s position. They must not present their opinion if they disagree with the child’s position. This law is designed to see that children’s wishes are clearly, concisely and diligently presented to court. Query: will this make custody litigation a popularity contest? Will the child pick the parent who gives in to the child’s wishes instead of guiding the child in what is in the child’s best interest?

Law office of Elliot Schlissel have been representing both mothers and fathers in child custody, visitation proceedings, child support matters, and other types of litigation before the family courts for more than 30 years. Call us at 1-800-344-6431 or email us for a free consultation.

Picture courtesy of warrickcasa.us.

Justice Spinner of Suffolk County New York has taken Immigrant Savings Bank to task for refusing to engage in good faith settlement conferences required by a 2008 amendment to the New York Banking Law. 

Judge Spinner has ordered Immigrant Mortgage Company to pay a Huntington New York couple a $100,000 as compensation for the banks “deplorable” mortgage agreement and its bad faith foreclosure negotiations.

In his decision Judge Spinner stated “the court…determines that the imposition of exemplary damages upon (the plaintiff bank) is equitable, necessary, and appropriate in light of plaintiff’s shockingly inequitable, bad faith conduct, as well as to serve as an appropriate deterrent to any future outrageous, improper and wrongful activities”. His decision was in the case of Immigrant Mortgage Company v. Corcione, Q009/28917.

In addition Justice Spinner has also “forever barred” Immigrant from collecting interest on the $302,500 mortgage as well as any legal fees, cost “or any sums other then the principal balance”.

In their lawsuit defendants Jane Corcione and Anthony Corcione claimed that Immigrant refused to engage in good faith settlement conferences, as explicitly required by the 2008 amendment to the banking law.

The judge singled out in his decision a half a dozen of the mortgage agreements “deplorable” and “distressing” provisions. One of the provisions singled out by Judge Spinner was a clause which forever prohibited the Corcione’s from seeking protection under the United States Bankruptcy Code. In his decision Judge Spinner stated that if this clause was enforceable against the Corcione’s it would be able to preempt federal insolvency statutes. Judge Spinner’s decision stated that a pre-bankruptcy waiver should under no circumstances be enforced against consumer debtors. His decision found the waiver was unconscionable, unreasonable, over reaching and absolutely void as against public policy.

Judge Spinner criticized the mortgage agreements “general release” which discharged the bank from any potential liability in “any and all claims that are relating to, concerning, or underlying the loan, and brokering, closing, servicing, or administration of the loan.” Justice Spinner’s decision stated “the obvious and factually clear intent of this clause is to circumvent each and every state and federal law in the State of New York intended to regulate the mortgage banking industry.”

This decision by Justice Spinner is the third time he has sanctioned a mortgage lender for its conduct in a foreclosure proceeding. Justice Spinner is the presiding judge in Suffolk County Residential Mortgage Foreclosure Conference Part. Suffolk County has the most foreclosure cases pending in the State of New York.

Should you find yourself facing a foreclosure on your home contact the foreclosure defense attorneys at the Law Office of Elliot Schlissel. We have more than 30 years experience in defending lawsuits by creditors. Call us at 1-800-344-6431 or send us an email.

Picture courtesy of desparateexes.com.

Police officer Christine L. Miller was off duty. She drove some friends to O’Leary’s Bar and Restaurant. Christine was an officer in the Sunset Hills Police Department.

Christine was served numerous drinks at O’Leary’s Bar. After consuming “a high quantity” of alcohol Christine got in her car to drive home. Christine drove her Mitsubishi east in the west bound lane of Darity Ferry Road which caused an accident with another vehicle. Four young people were killed and one was injured in the traffic accident. Christine has been charged with four counts of first degree involuntary manslaughter plus one count of second degree assault. She is currently on an unpaid suspension from the Sunset Hills Police Department.

The civil lawsuit which was filed shortly after the criminal charges were brought against Christine was settled for $2.25 million. At the time of the crash Christine’s blood alcohol level was 0.169. The threshold for driving while intoxicated was .08%.

The parents of the victims sued both Christine and O’Leary’s Bar and Restaurant.

They claimed that the employees of the restaurant knew that Christine was intoxicated and did not prevent her from driving home or assist her in calling a taxi cab. The civil lawsuit also claimed the bar workers served Miller alcoholic beverages even though her speech was slurred and her gaze was unsteady.

Wrongful death lawsuits often result in large settlement or awards from juries. Should either you, a friend, or a loved one have the misfortune of being involved in a tragic accident call the law office of Elliot S. Schlissel at 1-800-344-6431 or email us.

Picture of Ms’ Miller’s car after the accident courtesy of pulledover.

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