DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT

From May 11:

"Governor Andrew M. Cuomo today signed the Domestic Violence Survivors Justice Act (S.1077/ A.3974), a bill that codifies more meaningful sentence reductions for domestic abuse survivors in the criminal justice system and a key initiative in the Governor's 2019 Women's Justice Agenda. Current law allows judges to administer indeterminate sentences for domestic violence survivors who have committed a crime only in relation to their abuser under certain circumstances. The Domestic Violence Survivors Justice Act will build upon this law by adding offenses committed due to coercion by an abuser, as well as offenses committed against or at the behest of an abuser who does not share a household or family with the survivor—preventing further victimization of individuals who have endured domestic and sexual violence at the hands of their abusers."

The new law can be found here: https://www.nysenate.gov/legislation/bills/2019/s1077

ON OBSTRUCTION OF JUSTICE

This was the first law firm I worked for, the first case, the first appeal, etc. The lower court decision is linked here too and should be read (I had also worked on that motion):

United States of America, Appellee, v. E. Garrison St. Clair, Appellant, 552 F.2d 57 (2d Cir. 1977):

"This is an appeal from convictions, after jury trial in the Eastern District, on five counts of mail fraud, 18 U.S.C. § 1341, and two counts of obstruction of justice, 18 U.S.C. § 1510. We announced our decision affirming the convictions at oral argument. Because the case does raise an issue of first impression in this court regarding the interpretation of 18 U.S.C. § 1510, and because we think the district court's instruction to the jury unduly limited the scope of the statute, we supplement our decision with a written opinion.

The defendant was charged with three counts of obstruction of justice. The relevant facts are recounted in Judge Pratt's opinion in the district court, 418 F. Supp. 201. While under investigation for mail fraud, the defendant St. Clair gave government investigators the names of three women friends of his who he said could corroborate his innocence, Evangeline Rojas, Kari Hopper, and Mary Ann Claire. The evidence at trial demonstrated that defendant then asked the women to make certain false statements on his behalf if they were contacted by the investigators. One of the women, Evangeline Rojas, went along with his suggestion and did lie to the investigators. However, the defendant was unable to persuade the other two women; his efforts at playing down the seriousness of the matter were unsuccessful with them, and they both eventually told the investigators about St. Clair's efforts to have them make false statements.

18 U.S.C. § 1510 makes it a crime to "willfully endeavor by means of bribery, misrepresentation, intimidation, or force or threats thereof to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator." At the close of trial Judge Pratt dismissed the obstruction of justice count relating to Rojas and instructed the jury that they could convict on the other two counts only if they found that the defendant had actually made a misrepresentation to Hopper or Claire. His reasoning, set forth in his post-trial opinion, was that § 1510 applies only where a person seeking to obstruct the communication of information to an investigator has himself made a misrepresentation to a potential witness. On appeal, the defendant argues that the evidence was insufficient to support convictions on the district court's theory. We disagree. Moreover, there can be no complaint regarding the trial judge's instruction to the jury as it was unduly favorable to the defendant.

We conclude that § 1510 is violated whenever an individual induces or attempts to induce another person to make a material misrepresentation to a criminal investigator. From the legislative history of P.L. 90-123, enacted in 1967, it is abundantly clear that Congress specifically intended such cases to be covered when it included the word "misrepresentation" in § 1510. The House committee report stated:

Your committee wishes to make abundantly clear the meaning of the term "misrepresentation" as used in this act. It is our intention that the actual procurement by a party of another party's misrepresentation or silence to a Federal investigator would be covered even though such procurement was not achieved by any misrepresentation. At the same time, it is also our intention that procurement of a witness' communication or silence to a Federal investigator by means of a misrepresentation on the part of the procurer is also covered under the act.

H.R.Rep.No. 658, 90th Cong., 1st Sess., in 1967 U.S.Code Cong. & Adm.News, pp. 1760, 1762 (emphasis supplied). Subsequent House debates on whether "misrepresentation" should be omitted from the statute confirm the committee's interpretation. Thus, Representative Cromer stated that the word "misrepresentation" was included specifically in order to cover those cases where the government's failure to obtain testimony is due to a code of silence or loyalty between the potential witness and the defendant. 113 Cong.Rec. 29,404 (Oct. 19, 1967). And several opponents of inclusion complained that "(t)he misrepresentation of facts by individuals contacted by law enforcement officers is an entirely different matter from bribery, intimidation, or the use of force to obstruct criminal investigations. . . . " Additional views of Basil L. Whitner and William L. Hungate to House Rep. No. 558, 1967 U.S.Code Cong. & Admin.News 1765-66.¹ 

Our interpretation fully comports with the language of the statute itself. To persuade or to attempt to persuade someone to lie to investigators is to "endeavor by means of . . . misrepresentation . . . to obstruct . . . the communication of information." Nothing in the statutory language requires that the misrepresentation be made by the defendant; it is enough that he may be endeavoring to obstruct justice by means of misrepresentation by a potential witness.

Finally, this reading of § 1510 is consistent with established principles of statutory interpretation as summarized in United States v. Bass, 404 U.S. 336, 347-48, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971). The defendant has received fair warning of what is proscribed; no one would be surprised to learn that soliciting misrepresentations by potential witnesses is illegal. With the statute and its unambiguous legislative history, Congress has clearly defined the criminal activity at issue.

Implicit in the jury's verdicts of conviction under § 1510 were findings that the defendant had attempted to persuade Hopper and Claire to lie to the criminal investigators. Accordingly, our resolution of the issue of statutory interpretation disposes of the appellant's claim.

1

The district court relied on portions of the House committee report which indicate that a principal objective of § 1510 was the protection of informants and potential witnesses. However, nothing in the report supports the district court's conclusion that this was the only purpose. The court apparently took the second sentence of the following paragraph out of context:

This committee wishes to make it abundantly clear that this legislation cannot be used by a Federal investigator to intimidate or harass a potential witness or informant by reason of his giving false or misleading information about a criminal violation. The sole purpose of the act is to protect informants and witnesses against intimidation or injury by third parties with the purpose of preventing or discouraging the informants or witnesses from supplying or communicating information to the Federal investigator. The informants or witnesses cannot themselves be subject to prosecution under this act on account of any information they may furnish to the investigator."

H.R.Rep.No. 658, supra.

ON NEW YORK'S NEW "SEALING RULE"

In today's Newsday, the main story discussed a new state law aimed at giving nonviolent offenders a clean slate. As of October 7, 2017, New York courts may expunge eligible offenses under Section 160.59 of the Criminal Procedure Law.

The Law Offices of Robert Briere, a ​New York City Criminal Defense Lawyer,  ​30 Wall Street, New York, NY 10005, had noted on their web site that CPL 160.05 was not the only statute dealing with the sealing of criminal records:

"Remember that CPL 160.59 requires a ten year waiting period before the conviction can be sealed. So, in the meantime, what records can be sealed in New York before the ten year period has run?

Prior to the ten year period running, a record of a criminal conviction, which is any misdemeanor or felony except a youthful offender adjudication, cannot be sealed and is considered a public record available to anyone through the OCA website for a $55 fee. It does not matter if the person had the charge reduced from a felony to a misdemeanor or only received probation. There are no exceptions to the rule.

In New York, the only records that get completely sealed outside of the provisions of CPL 160.59 (pursuant to CPL 160.50) are cases that result in complete dismissals including:

ACD's and other forms of dismissals and acquittals. whenever a case is fully dismissed either through an ACD an acquittal after trial or if the case is dismissal in the interests of justice for dismissed for facial insufficiency...whatever the reason for the dismissal... these get the full sealing treatment of CPL 160.50. On the other hand, charges that are reduced from a misdemeanor or felony to a violation or infraction get the partial seal treatment of CPL 160.55.

How does sealing of a New York Record differ between CPL 160.59 and CPL 160.50 and CPL 160.55?

A sealing under CPL 160.59 occurs upon application of a person with two or less criminal convictions and no more than one felony conviction (that are at least ten years old) pursuant to the process outlined above. A sealing under 160.50 occurs in New York when a criminal charge is dismissed completely, while a sealing under 160.55 occurs when a criminal charge is reduced from a misdemeanor or felony to a violation or infraction.

A sealing under CPL 160.50 is the most favorable of the three since the 160.50 sealing mandates destruction of the arrest record and the sealing of the court file. A sealing under 160.55 is not as comprehensive as the 160.50 sealing. The 160.55 sealing occurs when someone is arrested or charged with a criminal offense, but is ultimately convicted of a violation or infraction, the sealing of the arrest records is accomplished pursuant to CPL 160.55 (1) (c), which means that records of the arrest, such as mugshots, arrest reports and fingerprints are destroyed but the Court file stays open.

The CPL 160.59 is a hybrid of the 160.50 and the 160.55 as is allows for the court file to be sealed but the arrest records remain unsealed." ​

MIRANDA WARNINGS IN BUILDING VIOLATIONS

People v. Gray, 2017 NY Slip Op 27204 - NY: Village Justice Court 2017:

"In addition, the court now holds in a second point of first impression that when a building inspector has made a determination to charge a defendant, that they must provide the defendants with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) warnings. We are a Local Criminal Court and therefore, the protections provided for individual defendants under our Constitution must apply here.

Police will often withhold the giving of Miranda, supra warnings during the course of an "investigation." Here the People have averred in their supporting papers that evidence outside of the search such as what they obtained online, supra, caused them to conclude that the defendant had violated at least eight Code provisions. Knowing that before going to the home gave them probable cause but it also mandated that they advise the defendant of his rights before recording statements from him.

Today this Village Court provides for two new provisions in the law which will henceforth apply in this Court and hopefully others that may choose to follow this holding. The first part of these new procedures which the Court is deciding for the first time only because they have not presented themselves previously to the best of its knowledge, is that compliance with C.P.L. § 710.30 shall be required as a prerquisite for the admission of any statements by a defendant. Second, when a Building Inspector, finds that he or she is going to issue violations they must give the prospective defendant Miranda, supra, warnings.

Since the People have stated at oral argument that they do not intend to offer any statements of the defendant at trial, except for his consent, these issues as referred to herein are dicta and meant to provide notice that this Court is a Local Criminal Court and as such endeavors to comply with the Criminal Procedure Law of New York as well as the federal and New York State Constitutions."

NYS PRO BONO CLEMENCY INITIATIVE

From Governor Cuomo's press release:

"Governor Andrew M. Cuomo today announced a first-in-the-nation partnership between a state and a coalition of legal organizations to expand New York's pro bono clemency program.

This partnership with the National Association of Criminal Defense Lawyers, with support from the Foundation for Criminal Justice, Families Against Mandatory Minimums, and other organizations is modeled after a successful federal program that has been discontinued since the Trump administration. This new partnership greatly expands the Governor's clemency initiative founded in 2015 that provided pro bono clemency petition services to individuals with criminal records or incarcerated in state prison.

"These nationally recognized organizations have already proven successful in helping incarcerated individuals get access to the resources they need to apply for clemency, make the case for their rehabilitation and have the opportunity to contribute to and re-enter society," Governor Cuomo said. "I'm proud to partner with them to expand the work of this administration and its partners and take one more step toward a more just, more fair and more compassionate New York for all."

By engaging more pro bono lawyers, this partnership will provide a steady supply of high-quality clemency applications for the Governor's Counsel's Office to review. The NACDL will work with the Executive Clemency Bureau to identify those deserving of a second chance, and make clemency a more accessible and tangible reality in New York."

BOATING WHILE INTOXICATED IN NEW YORK

"Governor Andrew M. Cuomo today (August 16, 2016) signed “Tiffany Heitkamp’s” Law, legislation that strengthens penalties for boating while intoxicated offenses by linking them to prior drinking while driving offenses involving a vehicle. The bill (A.1597-A/S.3785-A) requires courts to consider prior Driving While Intoxicated or Driving While Ability Impaired convictions when sentencing a person for Boating While Intoxicated or Boating While Ability Impaired.

“Whether behind the wheel of a car or a boat, drunk drivers are a danger to themselves and a menace to others,” Governor Cuomo said. “This new law closes this loophole and will help keep these dangerous individuals off our roads and waterways, avoiding more senseless tragedies.”

Under current law, there is no linkage between prior DWI and DWAI offenses and BWI offenses. This makes it impossible to convict an individual as a repeat offender, despite prior violations of similar laws. The bill addresses this gap by linking these similar offenses and providing harsher penalties for repeat offenders

Specifically, this measure requires that a court sentencing an individual for a BWI carrying a 30-day sentence must consider any prior DWIs or DWAIs by the same individual within a five-year period. When sentencing for a BWAI carrying a 180-day sentence, the court must consider prior DWIs or DWAIs within a 10 year period. This change would require a sentencing judge to impose a higher sentence on those who repeatedly get behind the wheel in an intoxicated state, regardless of whether it is a car or a boat.

Senator John A. DeFrancisco said, "When someone has a history of operating a vehicle or vessel while under the influence of alcohol or drugs, that record should be taken into account when the individual is sentenced. Repeat offenders should be held accountable for their history of dangerous actions to help deter further tragedies. I am very pleased that Governor Cuomo has signed this important bill into law to help improve the safety of our roadways and waterways. I also would like to commend MaryJo Heitkamp-France on her advocacy to help get this bill passed."

Assemblyman William Magnarelli said, “I want to thank Governor Cuomo for signing this important bill into law. It will honor the memory of Tiffany Heitkamp by requiring that judges take into account past DWI convictions when sentencing those convicted of Boating While Intoxicated. It will further deter those who repeatedly violate NY’s intoxicated operation laws. I also want to thank Ms. MaryJo Heitkamp-France for her tireless advocacy on behalf this legislation in memory of her daughter. This new law would not have happened without her efforts. I hope it will honor Tiffany’s memory and save lives on our waterways.”

The “Tiffany Heitkamp” bill was named after a young Syracuse-area woman who was killed in July 2006 while traveling as a passenger in a boat operated by an intoxicated person. The individual operating the boat had a record of alcohol-related automobile incidents. However, because there was no link between prior convictions for Boating While Intoxicated, he could only be charged as if this was his first BWI."

FEDERAL EXPUNGEMENT LIMITED SAYS SECOND CIRCUIT

In Doe v. United States (Second Circuit, August 11, 2016, Docket Number: 15-1967), at issue was whether the district court acted within its authority when it expunged the conviction of a woman sentenced some 14 years earlier, based on the court's finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified.  The judge directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”

The Second Circuit reversed stating that expungement is available in limited cases where Congress has specifically authorized it. Recognizing the harshness of its decision, the court added that its opinion “says nothing about Congress’ ability to provide for jurisdiction in similar cases in the future” and also quoted a speech by Attorney General Loretta Lynch in which she stated that society’s treatment of former offenders “turns too many terms of incarceration into what is effectively a life sentence.”

The full decision can be viewed here:  http://law.justia.com/cases/federal/appellate-courts/ca2/15-1967/15-1967-2016-08-11.html

MORTGAGE MODIFICATION SCAMS

Earlier this month,  three defendants in New York were charged with engaging in a mortgage modification scheme that defrauded over 8,000 homeowners in all 50 states out of over $18.5 million, in what is believed to be the largest mortgage modification scheme ever charged.

For the story, see http://nationalmortgageprofessional.com/news50934/Loan-Mod-Scheme-Netting-18.5-Million-From-8%2C000-Plus-Victims-Taken-Down

MORE RE: UNLICENSED HOME CONTRACTORS

One of my blog posts that has had the most views and comments is from May 28, 2010 and can be found at this link:

https://www.blogger.com/blogger.g?blogID=3717763000184349948#editor/target=post;postID=4615810626068974929;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=3;src=postname

It deals with unlicensed contractors and many times I am asked by victims of unlicensed home contractors: what can I do, can I get them arrested?

It is the District Attorney that decides who to prosecute and of course the question is what motivates the DA to take action in one case as opposed to another. Earlier this month, the press reported about a Long Island man sentenced to 3 1/2 to 10 years in prison for stealing more than a half-million dollars from 13 Nassau County residents in a home-improvement scam and for putting up as collateral a property he didn't own. There were two different schemes apparently:

1.  In the first scheme in which he took money for residential and commercial improvements, the unlicensed contractor pleaded guilty to third-degree grand larceny and first-degree scheming to defraud.

2. In the second scheme, he used a property he did not own for collateral in a business deal, viz., he took $392,590 from a Long Island man, asked the victim to invest money into his business and then paid back only a small amount. There he pleaded guilty to second-degree grand larceny, also a felony.

From a reading of the article, it appeared that in the second scheme, involving one man, the defendant wrongfully obtained twice as much money as the first scheme which involved about a dozen different people.

MORE RE: SUPERSTORM SANDY

In today's Newsday, an article reports a plea bargain made by some in Long Island for filing false FEMA claims and yesterday, the FBI announces four more arrests:

FBI - Four Arrested in FEMA Fraud Scheme

OPERATION HALLOWEEN ZERO TOLERANCE - TWO VIEWS

The official view:

NYS Department of Corrections and Community Supervision

An opposing view:

HUFFINGTON POST - Manufacturing Fear: Halloween Laws for Sex Offenders

JAY-J'S LAW

Several days ago, Governor Andrew M. Cuomo  signed legislation enacting Jay-J’s Law, which allows for tougher penalties against offenders who have been convicted of repeatedly abusing a child.

Here is a link to the press release:

http://www.governor.ny.gov/press/07292013-jay-js-law

UNLICENSED HOME IMPROVEMENT CONTRACTORS

An example of what could happen:

"
34 Misc.3d 43 (2011)
937 N.Y.S.2d 822
2011 NY Slip Op 21460

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
JOHN STEPHENS, Appellant.

2009-2507 NCR.

Supreme Court, Appellate Term, Second Department.

Decided December 27, 2011.

44*44 Hofstra Law Clinic, Hempstead (Jacob L. Stevens of counsel), for appellant.

Kathleen M. Rice, District Attorney, Mineola (Judith R. Sternberg and Cristin N. Connell of counsel), for respondent.

MOLIA, J.P., TANENBAUM and LaCAVA, JJ., concur.

OPINION OF THE COURT

MEMORANDUM.

Ordered that the judgment of conviction is affirmed.

Defendant was charged with operating a home improvement business without a license in violation of Nassau County Administrative Code § 21-11.2 (as added by Local Law No. 6 [1970] of Nassau County). The ordinance provides that "[n]o person shall own, maintain, conduct, operate, engage in or transact a home improvement business after January first nineteen hundred seventy two, or hold himself out as being able to do so after such date unless he is licensed therefore pursuant to this title." Conspicuously absent from the ordinance is the requirement of a culpable mental state.

At the conclusion of the trial, defense counsel requested that the District Court instruct the jury that, in order to find defendant guilty of the charged offense, defendant must have acted either recklessly or negligently in failing to obtain a home improvement business license. Defense counsel also asked the District Court to charge the jury with the affirmative defense of entrapment by estoppel (Penal Law § 15.20 [2]). The District Court declined to issue either charge, and the jury found defendant guilty.

45*45 Contrary to defendant's contention, the District Court properly declined to charge the jury that the alleged offense requires proof of a culpable mental state. New York precedents have formulated the equivalent of a rational basis test to determine whether a criminal statute or ordinance which specifies only an actus reus imposes strict liability. This standard requires a court to discern whether there is a reasonable relationship between the purpose of the criminal statute or ordinance, along with the conduct it proscribes, and the "safety, health, morals or welfare" of the public (People v Munoz, 9 NY2d 51, 58 [1961]; see People v Campbell, 72 NY2d 602, 609 [1988, Bellacosa, J., dissenting]). A statute or ordinance will be found to impose strict liability when such a reasonable relationship exists.

Applying the aforementioned test to Local Law No. 6, we find that the District Court correctly declined to impute a culpable mental state to its language. With respect to the purpose of the provision, the preamble to Local Law No. 6 explicitly provides that "[i]t is the purpose of the Board of Supervisors in enacting this Local Law to safeguard and protect the homeowner against abuses on the part of home improvement contractors by regulating the home improvement, remodeling and repair business and by licensing of persons engaged in such business" (Nassau County Administrative Code § 21-11.0). Thus, the Board of Supervisors specifically intended that Local Law No. 6 protect the public from fraud, shoddy workmanship and other safety concerns attendant to unlicensed contractors.

Furthermore, in proscribing unlicensed contractors' engaging in home improvement work, Local Law No. 6 protects the public from the inherent harm in trusting their safety and property to nonlicensed individuals. As a result, Local Law No. 6 "specifies a strict liability offense not requiring any culpable mental state," and we choose to refrain from "rewrit[ing] the plain words of the statute by adding, through judicial gloss, a culpable mental state or new element not provided by the [Board of Supervisors]" (People v Nelson, 11 Misc 3d 126[A], 2006 NY Slip Op 50201[U], *2 [App Term, 1st Dept 2006]).

The District Court also properly denied defendant's request to charge the jury with the affirmative defense of entrapment by estoppel. Penal Law § 15.20 (2) states that

"[a] person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of 46*46 law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law" (emphasis added).

The "official statement of . . . law," however, "must in fact authorize the conduct in question; a reasonable belief that the statement authorizes such conduct is insufficient" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 15.20, at 125-126 [internal quotation marks omitted]; see People v Fraser, 96 NY2d 318, 326 [2001]). In this case, defendant failed to demonstrate that Village of Roslyn officials had authorized him to perform construction work on the complainant's home without the requisite home improvement business license. At most, defendant established that the Village had erred when it had issued him a construction permit based on inaccurate licensing information.

We note in passing that Municipal Home Rule Law § 10 (1) (ii) (a) (12) (b) has no bearing on the disposition of this appeal because the Village of Roslyn does not regulate the licensing of home improvement businesses.

Accordingly, the judgment of conviction is affirmed.

DWI - LEANDRA'S LAW

From the Governor:

"Last year, the Legislature and I responded to the tragic death of 11-year-old Leandra Rosado, who was killed while riding in a vehicle driven by an allegedly intoxicated driver, by enacting what we believe are the toughest anti drunk driving laws in the nation. The first part of “Leandra’s Law,” which makes it a felony to drive drunk with a child in the car, took effect last fall. The second phase – the so-called “interlock provision” – takes effect August 15.

Under this provision, when anyone is convicted of a felony or misdemeanor drunk driving offense the court will be required to impose – in addition to any fine or jail sentence – a term of probation or conditional discharge of at least six months. During this time, the offender will be required to install and maintain an ignition interlock device in any motor vehicle they own or operate. Before a vehicle’s motor can be started, the driver will have to exhale into the device and if their breath alcohol concentration is higher than a certain level, the engine will not start which will make the roads safer for all New Yorkers.

It is our goal to dramatically decrease the incidence of drunken driving, not merely catch and prosecute those who violate the law and I believe the inconvenience, expense and humiliation of having to blow into a mechanical device before starting a vehicle will have a powerful deterrent effect – when people are aware of that consequence of drunken driving.

......."

UNLICENSED HOME CONTRACTORS

I have had this experience personally: an unlicensed home improvement contractor in New York City, Nassau and Suffolk County, and other surrounding counties, cannot sue homeowners for non-payment of its bills for services rendered or file a mechanic's lien, etc. This law was enacted to protect homeowners from unscrupulous construction contractors and its solicitors. Even where the homeowner knew that the contractor was unlicensed prior to the performance of the work, courts have still prevented the contractor from suing for payment, consistently holding that contracts made by unlicensed home improvement contractors are illegal and unenforceable. To determine whether a home improvement contractor is licensed, contact your county's Department of Consumer Affairs.

But what if you paid the contractor some money upfront? I made an upfront payment and no work was performed (it was a small job, only $300 was involved, but this proves that even attorneys make foolish mistakes). Certainly, one can sue in small claims or another court for a return of payment. But what are the chances of collecting on a judgment? Defendants who operate a business illegally usually hide assets, thus making enforcement of a judgment nearly impossible. What I did was contact the District Attorney's office and filed a complaint for operating a home improvement business without a license, a misdemeanor. The Nassau County District Attorney arrested the contractor and made a plea bargain deal (this took over a year) in which the contractor agreed to return my money - which the contractor never did. In fact, I am assuming that after the plea bargain was made, the contractor moved to another location as the District Attorney, after I advised them that the plea bargain payment deal was never complied with, advised me that they could not locate the contractor. But here is a story from July 21, 2009, North County Gazette:

"NASSAU COUNTY—A five-week investigation into unlicensed contractors in Nassau County has resulted in the arrest of 42 individuals.

Four face felony charges, including third degree grand larceny for allegedly stealing thousands of dollars from homeowners for improvements that were either not finished or never even started.

Investigators also rented a home in Nassau County and called in unlicensed contractors to perform “renovations.” The two-week operation yielded 12 charges of Operating a Home Improvement Business without a License, a misdemeanor, and the contractors’ vehicles were seized under the County Forfeiture Law. Twenty-six contractors were charged with the same misdemeanor after an investigation into complaints filed with Consumer Affairs.

The arrests were part of a multi-county enforcement sweep also executed in New York City and Westchester County.

“When you hire an unlicensed contractor, you’re rolling the dice,” Rice said, adding that consumers should thoroughly research home contractors before someone is hired. “Our homes are our most valuable financial asset and it is essential we entrust them to licensed, experienced professionals. Don’t let your American Dream become a nightmare.”

Facing felony charges are:

Derek Armstrong, 47 of Hempstead, was charged with second degree criminal possession of a forged instrument, falsifying business records and first degree offering a false instrument for. District attorney Kathleen Rice said Armstrong was hired by a Baldwin homeowner to do work on his home in 2005. Armstrong submitted the architect’s plans to the Town of Hempstead to obtain a permit, but the architect refused to work with Armstrong, who then put a different architect’s name and seal on the plans. The plans were also altered. He faces up to seven years in prison.

Edward Murphy, 42, of Wantagh, was charged with third degree grand larceny. Rice said Murphy was contracted to purchase backup generators for two group homes for autistic adults in Seaford and East Meadow. Murphy was paid $28,000, but never provided the homes with the generators or a refund. He faces up to seven years in prison.

John Napolitano, 47, of Hicksville, was charged with four counts of third degree grand larceny and first degree scheme to defraud. Rice said Napolitano defrauded four different homeowners of more than $113,000. Napolitano either took money and never performed any work at all or abandoned a project halfway through. One Long Beach homeowner had her entire kitchen demolished when Napolitano stopped work and didn’t refund her any money. He faces up to seven years in prison.

James Nichols, 46, of Rosedale, was charged with third degree grand larceny. Rice said Nichols received $47,500 from a homeowner to add an addition to his Elmont home. Nichols performed no work and did not refund the money. Nichols faces up to seven years in prison.

Charged with Operating a Home Improvement Business without a License in the house sting are Roberto Dopazo, 47, of Huntington; Donald Colucci, 57, of North Babylon; Jedidiah Irons, 22, of Oceanside; James Contrino, 33, of Oceanside; Debra Kaplan, 44, of Massapequa; George Brady, 55, of Queens; Manuel Vera-Munoz, 43, of South Farmingdale; Thomas Gallo, 48, of Levittown; Ronald Hinderhofer, 49, of Oceanside; Thomas Longo, 38, of North Merrick; Muzaffer Geyikgulo, 54, of Valley Stream; and Luis Saquipulla, 36, of Corona. All face up to a year in jail.

Working in conjunction with the Nassau County Department of Consumer Affairs, the following people were charged with Operating a Home Improvement Business without a License after complaints were lodged with Consumer Affairs by homeowners:

Thomas Gironda, 40, of Port Jefferson Station; Arthur Spero, 47, of Wantagh; Lionel Toby, 51, of Long Beach; Joseph Sarno, 69, of Bayside; Bohdan Kuzminskyy, 48, of Holbrook; Joseph Samaroo, 49, of Cedarhurst; Rod Darling, 41, of Hempstead; Christopher Martino, 39, of Lynbrook; Eladio Otero, 61, of Malverne; Yojin Choi, 44, of Great Neck; George Stern, 60, of Syosset; Nicholas Spano, 46, of East Meadow; Louis Hapst, 43, of Copiague; Ramadan Nela, 46, of Dix Hills; Russell Martini, 31, of Westbury; George Lopez, 40, of Oceanside; Edward Hoffman, 46, of Islandia; Anthony Delmaro, 37, of Deer Park; John Bradford, 44, of East Rockaway; Rulx Regala, 39, of Bohemia; Larry Field, 46, of Elmont; Christopher J. Galvin, 46, of West Babylon; Thomas Heaney, 42, of Farmingdale; Adolph Ford, 63, of Hempstead; Daniel Dallolio, 43, of North Bellmore; Joseph Sceppa, 39, of Commack. All face up to a year in jail."

CELL PHONES

A recent consultation regarding an unemployment insurance matter revealed that the issue could be easily resolved in the Claimant's favor if the Claimant had taken a certain photograph with the Claimant's cell phone; however, the Claimant explained that the cell phone was an old one without a phone. With respect to certain matters, especially automobile and other property damage, it is best to have a camera on hand in your cell phone. Video with sound may also be useful in various matters, especially with certain matrimonial issues. I suggest all to have one but also beware as the following article from totallawyers.com illustrates:

"These days, you can't walk down the street without seeing people chatting away on their cell phones, text messaging, or snapping a camera phone picture of a friend. But did you know that cell phones have also become an important part of criminal investigations?

Criminals and police are finding that cell phones can provide valuable evidence-and heated controversy-in some criminal cases.

NPR News reports the story of one Colorado high school where students' cell phones were seized and searched. School officials found mentions of marijuana use amid some of the text messages, but legal experts question whether the searches were lawful.

Some information discovered in the cell phone raid reportedly entered the students' discipline files, but the administrators' actions have met with much controversy. One student allegedly smashed her cell phone rather than subject it to a search she believed was inappropriate.

In New Jersey, police officers undergo rigorous training sessions to learn how to extract information from the hard drive of cell phones, according to NJ.com. Though computer-based information extraction procedures have been in place for years, cell phone investigations are fairly new.

Perhaps one of the most surprising facts about the role of cell phones in criminal law is how often suspects incriminate themselves with evidence from their phones.

The Wall Street Journal highlights the case of Morgan Kipper, a man who insisted he was innocent after being arrested for stealing cars and reselling their parts.

Apparently, when police got their hands of Kipper's camera phone, they found that the wallpaper background was a picture of Kipper in the driver's seat of a stolen Ferrari. After that, his criminal defense lawyer had a tougher time with the case.

Sources suggest that ordinary cell phone users don't realize how much information investigators can glean from cell phones-even messages and photos that have been deleted are stored on a phone's hard drive.

And, with all the new features cell phones have these days (including text messaging options, camera capabilities and video recording devices), police have a greater chance than ever of finding something incriminating for an investigation.

Software companies, too, have become aware of the trend. Vendors are pitching to investigators programs that help download phones' hard drives, sources report.

So how vulnerable is your phone information?

According to reports, police must get a warrant to search cell phone information, but some criminals post photos and videos on the Internet, making such warrants unnecessary.

Experts have commented that cell phones can be trickier to get information from than computers, because so many models of cell phones are out there. But, since most people never leave home without their cells, chances are good that evidence of a crime (if a crime was committed) will be somewhere in a phone.

The moral of the story? Experts suggest not texting anything you wouldn't want to see in a newspaper headline. Oh, and if you commit a crime, don't snap an image of yourself doing it."

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Finally, on the issue of what happens at a later union hearing on reinstatement or other hearing if the DOL first finds you innocent of misconduct we go to IN RE WHARTON v. N.Y.C. D.O.C., 0103493/2008 (8-12-2008), 2008 NY Slip Op 32289 (Sup. Ct. N.Y. August 12, 2008):

"Initially, this court finds that the DOC is not barred from arguing that it terminated petitioner in good faith, by virtue of the award petitioner obtained from the Department of Labor. New York Labor Law § 623 (2) declares that "[n]o finding of fact or law contained in a decision rendered pursuant to this article by a referee, the appeal board or a court shall preclude the litigation of any issue of fact or
law in any subsequent action or proceeding[.]"[fn1] Consequently, New York courts have uniformly held that determinations of the Department of Labor concerning unemployment insurance are "without preclusive effect in [an] action" (Wooten v. New
York City Dep't of Gen. Servs., 207 AD2d 754, 754 [1st Dept 1994]; see also Matter of Watson v Bratton, 243 AD2d 295, 295 [1st Dept 1997]; Matter of Rivoli v Stern, 160 AD2d 601, 601 [1st Dept 1990]). Therefore, the Department of Labor's determination is without preclusive effect herein."

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Another interesting case is SILBERZWEIG v. DOHERTY, 23 Misc.3d 618, 873 N.Y.S.2d 461 ( Sup. Ct. N.Y. Co. 2009), which I quote in part:

"Initially, the Department of Labor had disqualified Silberzweig from receiving benefits on the ground that his employment had been lost through misconduct because he had been absent without leave during his incarceration. The Appeals Board reversed, stating that

"There is no dispute that the claimant was absent
without leave since August 2, 2007 because of his
arrest. However, the claimant's father notified the
employer of the claimant's arrest and incarceration
within two days of the arrest, and the employer knew
of the claimant's whereabouts. . . . The claimant was
absent due to his arrest on August 1, 2007, and since
he was acquitted oh February 13, 2008, I find that the
arrest and resulting absence
was due to circumstances beyond his control. He
reasonably notified the employer of his whereabouts
and his inability to work. The claimant did not
voluntarily leave this job by these absences caused by
the arrest, and he did not commit any act of
misconduct with respect to his arrest or absences."

That rationale applies with equal force here. Since Silberzweig was acquitted of all charges, his arrest and resulting absence from work cannot be attributed to any misconduct on his part."

Notice that in this case, as opposed to the others reported in this discussion, the Claimant was aquitted of all charges: there was no plea bargain to a lesser charge.

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Here is another recent case I found from the Appellate Division, 3rd Department on the issue of criminal acts disqualifying a Claimant from benefits:

"IN THE MATTER OF THE CLAIM OF ERIC J. CUMMINGS, Appellant. v. COMMISSIONER OF LABOR, Respondent., Appellatte Supreme Court of New York, Third Department, Decided and Entered: January 14, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed on September 12, 2008, which, among other things, ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant was employed as a customer field representative for a utility company. His duties included entering customers' homes to disconnect their meters, as well as accepting payments in the form of cash or check. In July 2006, claimant was arrested and charged with various crimes involving the alleged commission of insurance fraud. Claimant was suspended from his employment without pay pending the resolution of the criminal charges. In September 2006, claimant applied for unemployment insurance benefits and thereafter began receiving payments. Claimant subsequently pleaded guilty in November 2007 to the crime of attempted offering to file a false instrument, a misdemeanor, in full satisfaction of the charges. In January 2008, the employer terminated claimant's employment.

Following the termination, the Department of Labor issued a determination disqualifying claimant from receiving unemployment insurance benefits and charging him with a recoverable overpayment. After claimant failed to appear for a hearing he had requested on the matter, the determination was upheld on default. The matter was
subsequently reopened and, following a hearing, an Administrative Law Judge sustained the initial determination. The Unemployment Insurance Appeal Board affirmed, prompting this appeal.

Claimant contends that the Board's determination is not supported by substantial evidence insofar as his criminal conviction pertained to activities unrelated to his employment. We disagree. "Misconduct committed during nonworking hours, which raises serious questions as to a workers' integrity, bears a relationship to his work within the meaning of . . . section 593 of the Labor Law" (Matter of Bruggeman [Roberts], 101 AD2d 973, 973 [1984], lv denied 63 NY2d 608 [1984] [citations omitted]; accord Matter of Mora [Hartnett], 175 AD2d 442, 443 [1991]; see Matter of Kessler [Commissioner of Labor], 286 AD2d 844, 845 [2001]). Accordingly, given the nature of claimant's employment duties, including entering customers' homes and accepting cash payments, we find no reason to disturb the Board's determination that his misconduct was sufficiently connected to his employment (see Matter of Kessler
[Commissioner of Labor], 286 AD2d at 845). Regarding the Board's determination that the benefits claimant received were recoverable, we find there is substantial evidence in the record supporting the Board's factual finding that claimant made a willful misrepresentation to obtain benefits (see Matter of Bal [Commissioner of Labor], 52 AD3d 1122, 1123 [2008]; Matter of Barbera [Commissioner of Labor],
28 AD3d 973, 975 [2006])."

The lesson learned from this case is that even a crime committed off work hours may be justification for job termination and misconduct. So again, if you are innocent of charges, do not plea bargain to a reduced charge so that you can get a quick resolve of the criminal action. If you want to receive unemployment benefits when you have been arrested for an alleged crime committed during work and work related or off work, it may be deemed misconduct, so try to get an acquittal! That won't guarantee benefits as the standard of proof in a criminal case is different than the standard of proof in an administrative hearing, but a conviction or plea bargain may guarantee a denial of benefits. In this case, one should also note the determination of overpayment and the fact that the claimant was termination almost 18 months after his arrest and 2 months after his plea of guilty.

UNEMPLOYMENT INSURANCE - CRIMINAL ACTS

Here is the most recent case I found from the Appellate Division, 3rd Department on the issue of criminal acts disqualifying a Claimant from benefits. This is the court that hears all appeals from decisions of the Appeals Board. The process is as follows: first a DOL determination, then a hearing before an administrative law judge, then an appeal to the Appeals Board, then an appeal to the Appellate Division, 3rd Department.

"IN MATTER OF VELEZ v. COMMISSIONER OF LABOR, 507620 [3d Dept 2-4-2010], 2010 NY Slip Op 00765, Decided and Entered: February 4, 2010.

Appeal from a decision of the Unemployment Insurance Appeal Board,filed March 26, 2009, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Annette G. Hasapidis, South Salem, for appellant.

Before: Mercure, J.P., Rose, Lahtinen, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Claimant worked as a respiratory therapist at a hospital for over 14 years. While claimant was administering treatment, a female patient accused him of inappropriate physical contact. A criminal charge was filed against claimant as a result. He pleaded guilty to a reduced charge of harassment in the second degree (see Penal Law § 240.26 [1]), received a conditional discharge and his file was sealed. The Unemployment Insurance Appeal Board subsequently ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant appeals.

We affirm. "It is well settled that offensive behavior in the workplace which is detrimental to the employer's best interest constitutes disqualifying misconduct" (Matter of Williams [Commissioner of Labor], 32 AD3d 1089, 1090 [2006][citations omitted]). Here, claimant's plea of guilty to a reduced criminal charge of harassment formed the basis for his discharge and entailed offensive physical contact that was strictly prohibited by the employer's rules and clearly adverse to the employer's interests. This provides substantial evidence supporting the Board's
finding of misconduct (Matter of Singleton [Commissioner of Labor], 60 AD3d 1230 [2009]; Matter of Bucolo [Commissioner of Labor], 6 AD3d 917 [2004]; Matter of
Daoust [Overnight Transp. Co. — Commissioner of Labor], 5 AD3d 828 [2004]). Claimant's challenge to the validity of the guilty plea and its ramifications is more properly brought in the context of the criminal proceeding. Although claimant denied engaging in any inappropriate conduct, this presented a credibility
issue for the Board to resolve (see Matter of Singleton [Commissioner of Labor], 60 AD3d at 1231; Matter of Williams [Commissioner of Labor], 32 AD3d at 1090) Consequently, we find no reason to disturb the Board's decision."

The lesson learned from this case is that if you are innocent of charges, do not plea bargain to a reduced charge so that you can get a quick resolve of the criminal action. If you want to receive unemployment benefits when you have been arrested for an alleged crime committed during work and work related, try to get an acquittal! That won't guarantee benefits as the standard of proof in a criminal case is different than the standard of proof in an administrative hearing, but a conviction or plea bargain will probably guarantee a denial of benefits.