Jim Goes to Family Court

The Family Court in New York State is the court that handles various private matters, including juvenile delinquency, persons in need of supervision, and matters relating to child custody and support of dependents.  The court was formerly known as the Children's Court but became the Family Court in 1962.  Among the cases frequently heard are petitions brought by the county social services department seeking financial assistance for persons receiving public assistance.  These "welfare cases," as they were known, are usually brought against the father of an out-of-wedlock child or a divorced or separated husband who has failed to support his former spouse or children.  The Family Court has the authority to determine responsibility and direct the terms of support in an appropriate case.  The court can enforce its orders by a contempt order, including remanding a person who fails to comply with jail.

Family Court proceedings are supposed to be private.  Unlike other courts, the public cannot view its proceedings or access its case records.  Family Courts usually have relatively small courtrooms, frequently located in the county courthouses in upstate New York counties.  Cases are staggered to provide the necessary privacy.

Unlike Rensselaer County, which housed its Family Court in an appropriate facility and heard cases from all fourteen towns and two cities, the Albany County Family Court, in the early 1960s, used an open area in the old (since remodeled) Albany County courthouse for its hearings.  In further violation of privacy, then Family Court judge Robert J. Laffin, a former Albany Police Court judge, "rode the circuit" on Friday mornings once or twice a month, stopping first in the City of Watervliet, where he held proceedings in the open City Court courtroom and then traveled north to the City of Cohoes where he held hearings in the open City Court.

One Friday morning, probably in 1964 or 1965, I arrived at the office of Seymour Fox, where I was then employed and was instructed by Mr. Fox to go to the Cohoes City Court to represent a young man, who I will call "Jim".  Jim was a client of Mr. Fox, who was handling his injury claim.  At this time, anyone of the age of 18 could buy and consume alcohol, but a male who had not reached his majority, then age 21, could not be married by a Town Justice of the Peace (as Town Justices were then known) without parental consent.  Jim was 20 years of age.

When I arrived at the Cohoes City Court, perhaps two dozen people were in the room awaiting their turn before Judge Laffin.  Jim showed me a petition that had been served upon him, whereby the Albany County Department of Social Services was seeking an order for him to pay support for his wife and her two children, who were welfare recipients by a former marriage.  Jim told me that he had had a brief affair with this divorced woman a couple of months previously.  Following an evening of drinking, they went to a local Town Justice of the Peace who performed a marriage ceremony, although they didn't have a marriage license.  Based on these facts, I had two defenses: (a) the marriage was invalid because there was no marriage license, and (b) even if there had been a marriage license, there had been no consent by Jim's parents.  Jim never lived with his "wife" and hadn't even seen her again after they broke up shortly after the marriage ceremony.

Support cases are civil in nature.  Unlike a criminal charge to which an accused enters a guilty or not guilty plea, a civil petition is responded to by admitting or denying each allegation and, when appropriate, setting forth any defenses. 

When Jim's case was called, I went to the bench with Jim.  Judge Laffin read the petition and asked Jim, "How do you plead guilty or not guilty?" I was astounded!  Even though this was my first Family Court case, I knew it was not proceeding properly.  I interjected that on Jim's behalf, I wanted to admit certain allegations of the petition, deny others, and explain his defense.  Judge Laffin looked at me, then turned to Jim and asked: "Guilty or not guilty?" Once again, I tried to explain that I wanted to respond to the allegations but was ignored.  The next time he was asked, Jim said, "Not guilty." To my surprise, Judge Laffin said he was being remanded to the Albany County Jail.  Jim was put in handcuffs and led away by a bailiff.

I was at a total loss and couldn't believe what had happened.  I waited until Judge Laffin went through the entire calendar of cases and approached him.  With the audience gone, I tried to discuss the matter, but Judge Laffin told me to be at the Family Court in Albany at 2:00 pm that afternoon for a hearing.

Shortly after I arrived, Jim was led in, still handcuffed.  Judge Laffin then read the petition and a written response that I had hastily prepared.  He questioned Jim about his age and the circumstances of the marriage ceremony.  He then said the marriage was obviously invalid, and Jim was not required to pay any support.  He dismissed the petition, ordered the bailiff to remove the handcuffs, and told Jim he was free to go.

I never appeared before Judge Laffin again, but I understood that his successors followed proper procedures.  

No Worm, No Conviction

My father was an avid fisherman. He flirted with fly fishing for a time, but to say that he never mastered the art would be an understatement - he never caught a single trout on a fly. With the advent of spinning tackle, he tried his hand at fishing with lures, going so far as to buy a kit to make his own lures. He would mold a plastic dough into what he thought the trout would be attracted to, adding bits of feathers and hair from a deer’s tail that he unceremoniously chopped off a hunter’s buck for that purpose one November day. [He had not consulted with the hunter who had stopped at my father’s tavern for a few drinks to celebrate his hunter’s prowess and show off the buck tied across his front fender in the usual tradition.] My father’s success with spinning lures equaled his success with fly fishing, probably because my father’s idea of what a trout would consider edible was at variance with the trout’s concept of food. He had had some luck using lures that he purchased in the sporting goods section of Montgomery Ward, but using bought lures proved too expensive for him, as the rocky bottom of the Kinderhook Creek ate more of the lures than the trout did. Although many trout fishermen succeeded with live bait, my father had no convenient source of shiners and never really considered that option.

Dad finally resigned himself to being a worm fisherman, and as such, he became a master. Earthworms were readily available and free for the digging. We maintained a good supply in a big wooden box in which soda was delivered in the 1950s and 1960s. The box was lined with screening to keep the worms from escaping, and they were fed cornmeal or stale bread. Sometimes, I would take a flashlight and hunt for nightcrawlers to add to the worm population. In any event, Dad had a ready source of bait at his disposal, and during April and May, he would go fishing several times a week in the nearby Kinderhook Creek or its tributaries. He knew every “hole” where trout would likely feed and rarely came home empty-handed. Some days, when the fishing was exceptional, he would bring home the legal limit of ten trout, eat breakfast, and return for some more. On the weekends, when many trout fishermen came into his tavern after fishing, he took particular delight in listening to their tales and then bringing out a trout platter he had caught earlier that morning. His catch usually was larger than that of his customers. He especially enjoyed showing his catch to the fly fishermen. One year, a large photograph of him fishing on the opening day of the trout season appeared on the front page of the Times-Union’s sports section, giving him some celebrity status among the fishermen.

Before the April 1 opening of trout season, Dad would go to North Chatham and “blindsnatch” for lake suckers that would swim from Kinderhook Lake upstream to spawn in the Valatiekill Creek once the ice melted. Lake suckers, unlike creek suckers, were large fish, and the females were heavy with roe. Blindsnatching suckers were not considered sporting by most trout fishermen, and suckers were thought to be inferior fish. Nevertheless, there were several devotees of the sport who blindsnatched the suckers during the few days when the run was on. Dad would usually be notified when the run started by Art Pulver, our newspaper delivery man who lived in North Chatham. Sometimes the notification would come in the form of a dead sucker delivered with our Times-Union.

Blindsnatching suckers required a totally different technique than fishing for trout. Instead of a thin fiberglass rod with a reel and light monofil line to which a small hook would be attached, Dad made his heavy-duty tackle. This consisted of a maple sapling about five feet long to which he would tie a length of heavy cord. The business end of this fishing line was a large treble hook. A treble hook consists of three large hooks joined together along their shaft. A weight was attached to the hook to make it sink to the bottom of the creek where the suckers were. Spawning suckers did not eat during the run, so no bait was used. Instead, the treble hook would be cast upstream and then dragged downstream along the bottom of the creek, where it might hook into a sucker swimming in the opposite direction. There was no catch limit, and during the height of the run, it was not unusual for Dad to fill up one or two large burlap grain sacks with lake suckers. The run frequently coincided with Passover, and my father would distribute most of the catch among other Jewish families who used them to cook gefilte fish. Also, my mother would parboil and then fry the roe, which she dipped in egg batter.


One reason for my father’s success in blindsnatching suckers was his treble hooks. Although treble hooks were locally available and in general use, my father bought larger, stainless steel ones at a Sears Roebuck store in Miami. I don’t know what treble hooks were used for in Florida, but they were obviously for larger fish, and the stainless steel necessary for use in saltwater was much stronger than the freshwater variety locally available. He would sometimes give one to Mr. Pulver and other select fishermen.

The real prize when blindsnatching lake suckers was a walleyed pike. Although hooking suckers by snatching was legal because suckers were not game fish, it was illegal to take game fish by snatching. The pike ran with the suckers because they feasted on the sucker roe, although they were not as numerous. In fact, the legal season for catching pike did not start until May or June, well after the sucker run had ended. The pike was delicious when caught in the cold March or early April waters. They were larger and more flavorful than trout.

During the sucker run, state game wardens would set up roadblocks near the Valatiekill, stopping automobiles driven by men who were obviously fishermen and inspecting their catch. There was a substantial fine for possessing a walleyed pike out of season. If a fisherman hooked a pike while blindsnatching, he was obligated to immediately toss it back into the creek. Blindsnatching eventually became illegal sometime in the 1950s, and the new regulations required that the fisherman actually see the fish he was trying to hook. In theory, this would enable the fisherman to differentiate between suckers and pike, but in practice, it was impossible to see anything in the turbulent spring waters, and the sport ended.

My father loved eating out-of-season walleyed pike and outwitting the game wardens. He knew his car was always a candidate for a search, but he figured out how to smuggle the pike past the game wardens. For several years, our family car was a green 1947 Buick Roadmaster, a large sedan. If he hooked a walleyed pike and there was no game warden or other fisherman nearby, my father would bring it to the Buick and wrap it in an old towel or other cloth. He would then lift the Buick’s hood and reach into a hollow panel in the front door, where he would stash the fish. The game wardens would search the trunk and engine compartments of the car and sometimes even look under the car and under the seats, but they never thought to check the door panels. Dad took delight in telling that Warden Thorne told him that he knew that Dad was taking home pike but didn’t know how he was doing it. Although Dad bragged to other fishermen how good the pike tasted, he did not reveal his transport method to even close fishing friends, and it remained a family secret. About the time blindsnatching was ruled out, Dad traded in the Buick.

Dad also once tried (illegal) night spearfishing for bass from a rowboat with a spotlight at a local lake with a shady neighbor, Theodore “Teets” LaRose, but he returned empty-handed and didn’t try it again. He also went ice fishing on Tsatsawassa Lake a couple of times but didn’t catch anything. I tried ice fishing once when I was in law school. My wife, Nedda, and I drove our VW way out on the ice of the Great Sacandaga Reservoir, accompanied by a classmate, Don Butler, and his wife in their VW. We had to cut holes through 14 inches of ice when the wind blew, which was less than ten degrees. We sat in our cars, watching the tip-ups I had rescued from my father’s basement, waiting for the “four o’clock run.” It never came, and we left without a single bite, never to go ice fishing again. I sold the tip-ups years later at a garage sale.

One summer day in the early 1970s my father called to advise me that he had volunteered my services to defend “Charley” on a violation of fishing without a license. It seems that Charley had a small house in East Nassau. His property bordered the Kinderhook Creek in an area frequently fished by my father, and they sometimes fished together. Charley had been fishing in his backyard when a game warden approached and asked to see his license. When he could not produce one, he was given a citation to appear in the Nassau town court before Judge Lamb. Although a first-time offender for the violation would usually only receive a nominal fine, my father knew there was some exemption from the licensing laws for property owners fishing on their own agricultural land. However, he did not know the details of the exemption. In any event, he promised Charley that I would be in the Nassau Town Court on the morning that the citation was returnable.

How do you get out of a commitment that your father made for you?

I showed up at Judge Lamb’s house at the appointed hour. Town judges frequently held court right in their own homes then, a practice no longer followed. Judge Lamb and the game warden were very surprised to see me since it was highly unusual for someone to be represented by counsel for such a minor charge, and even more so for a defendant of very modest means. Although I knew that the licensing exemption was quite well spelled out to exempt agricultural landowners, I elicited testimony from Charley that he had a little garden and was growing tomatoes and some squash. Judge Lamb was not too impressed with Charley’s agricultural pursuits, so I made the legal issue the question as to whether Charley was actually fishing. The game warden confidently testified that when he approached Charley, he was holding a fishing rod with the line in the waters of the Kinderhook Creek. He admitted that Charley hadn’t caught any fish but pointed out that the violation was the act of fishing and did not require catching fish. The testimony turned to the issue of what constituted fishing. Does fishing require a hook and bait? The game warden said that there was, in fact, a hook on Charley’s line, with a nightcrawler on the hook. I asked him to produce the worm. He said he threw it away at the time he issued the citation.

I jumped on that answer and indignantly requested that Judge Lamb hold the game warden in contempt for destroying material evidence, which could have and should have been preserved for trial. Of course, there was no basis for a contempt charge, but Judge Lamb, somewhat of a fisherman himself, seized the opportunity to dismiss the charge because of a lack of evidence. The game warden, who had probably never lost a fishing without a license case, was furious, particularly when I told Charley that my fee would be some fresh trout.

My father agreed not to volunteer my services again.

Don't Whip Your Children

"Jerry" was a slender, nice-looking boy of fourteen when I met him. His parents had divorced some years earlier after his mother left. His father had been given sole custody by agreement, and Jerry and his father lived in a small but comfortable house near the State Police substation in Brunswick. Jerry was a good student.

Although father and son probably got along as well as most, Jerry's father, of Italian descent, was "old school" and strongly believed in the adage "spare the rod and spoil the child." Thus, Jerry's occasional misbehavior was corrected by spanking and, sometimes, by a whipping with a strap.

I met Jerry on a Monday morning when I was called to Family Court and assigned to be his law guardian by Judge Mark Filley. He had been charged with juvenile delinquency, technically a civil charge for the commission of what would be considered a crime if committed by an adult. In this case, the crime was manslaughter.

On Sunday morning Jerry's father had slept late. When he woke, Jerry went into his father's bedroom and sat on the bed. They had a pleasant discussion about the professional sports teams they both followed, goings-on at school, and the like. They were planning to watch a game on television together that afternoon. Jerry had something to get off his chest and decided that it was a good time to do it. He told his father that on Saturday, he had been walking down Route 7 with a friend, and that his friend had started throwing pebbles at passing cars. Jerry said that he didn't throw any pebbles, but he thought that he recognized the driver of one of the cars that was hit, and the driver probably knew him. Jerry wanted his father to know that while he was there, he didn't throw the pebbles.

Jerry's father was furious. He reached over to a chair next to the bed, where he had left his trousers when he undressed the previous evening, and took the leather belt out to punish his son for being involved. Jerry knew what was coming, as it had happened several times before. In the blur of the moment, Jerry saw the revolver Jerry's father always kept on the nightstand. He grabbed it, aimed it at his father, and pulled the trigger. There was a loud explosion, and Jerry saw blood pouring from his father's head. He jumped off the bed and ran down the road to the State Police substation, bursting in and telling the officer at the desk that he had shot his father. A trooper went to the house and confirmed that Jerry's father was dead.

Although Judge Filley could have immediately had Jerry confined to a juvenile detention center until the matter was adjudicated, he instead put Jerry in the temporary custody of his paternal grandmother, with whom Jerry had always been close, especially since his mother had left. Although the grandmother must have had very mixed feelings, she knew her son had a bad temper and never approved of his disciplinary methods.

Judge Filley recused himself from further proceedings because he knew the family, being a lifelong resident of the same town as Jerry's father's family. A judge from another county was assigned to hear and determine the case.

Juvenile delinquency cases are processed in two phases. The first phase is the fact-finding hearing in which the allegations of the juvenile delinquency petition are determined in a fact-finding hearing, similar to a non-jury trial of an adult charged with a crime. If the allegations are established to the Court's satisfaction, the juvenile is adjudicated a juvenile delinquent, and a dispositional hearing is scheduled to determine the best remedy for the delinquent conduct.

Jerry's adjudication hearing was quite brief. Since all juvenile delinquency cases are civil, rather than criminal in nature, the County Attorney, rather than the District Attorney, prosecutes the case. I had discussed the case with Jim Canfield, the Assistant County Attorney (who recently retired as a state Supreme Court justice) who handled juvenile delinquency cases, and I knew that there was no question but that Jerry had shot his father and had admitted doing so. At the hearing, I admitted the allegations of the petition, and Jerry was adjudicated a juvenile delinquent. A dispositional hearing was set.

At that time, I was representing a somewhat eccentric psychiatrist (aren't they all?) in a matrimonial action. I retained him to become an expert witness on Jerry's behalf. He read the police report of the shooting and met once with Jerry and his grandmother. At the hearing, Mr. Canfield advised the Court that the county had no strong recommendation about the disposition. Jerry told the judge what had happened. The psychiatrist testified that, in his opinion, the only person that Jerry had been a danger to was his father, and with his father now deceased, he did not feel that Jerry was of any danger to others. The assigned judge agreed. He put Jerry on probation and placed him in the permanent custody of his grandmother.

Several years later, Jerry telephoned me to say hello and thank me for representing him. He had graduated from high school, made a career in the Air Force, and was married with two children. He had never been in trouble again.

Finding Bonnie

One morning I received a telephone call from Beverly Everton, the police officer assigned to the Family Court for juvenile matters. She told me that Judge Filley had assigned me to represent Bonnie, a 15-year-old girl from Averill Park. Her parents had filed a PINS petition alleging that she was incorrigible.  

I went to Family Court, which was less than a block away from my office, and Beverly gave me a copy of the PINS petition. I asked to interview Bonnie, but Beverly told me that the parents did not know where she was. Beverly had some information that led her to believe that Bonnie was with some Puerto Rican males in an apartment building at Hutton Street and Fifth Avenue in Troy. She suggested that I try to find Bonnie.

During the 1960s Troy had a small Hispanic population. I drove there and parked my new Oldsmobile hardtop in front of the address that Beverly had given to me. There were three young black men standing in front of the building entrance. I went to them and asked where the Puerto Ricans lived. They eyed me suspiciously, as I didn’t look like a policeman, but one of them pointed to a first-floor corner window.

With some trepidation, I entered the dingy building and went to the corner apartment. I could hear a lot of men laughing and speaking in Spanish. I took out my stub-nose Colt Cobra .38 Special revolver and knocked on the door. When it was opened I just walked in holding the gun out in front of me and told the four or five young men to get back against the wall. They understood and immediately complied. One of them spoke fairly good English. I told him that I was looking for Bonnie and she was supposed to be in the Family Court on Third Street. By then the black men had come into the building to find out what was happening, but they kept their distance in the hall. The man that I spoke to continually translated the conversation to the others in the room, and they had some animated discussion in Spanish. He told me that they didn’t know who Bonnie was and hadn’t seen her. I asked him where there were other Puerto Rican men, but he professed not to know of any other Puerto Rican men in Troy. I told him that Bonnie would be found, and if she was found with any men, they would go to jail for a long time. I left the apartment, given a wide berth by the black men, probably since I was still holding my revolver.

I drove back to my office. An hour or so later Beverly called to report that Bonnie was waiting for me at Family Court. She had been dropped off at the Courthouse and tearfully told me that her boyfriend said that he couldn’t see her anymore or he would go to jail. Bonnie spent a few days in the County’s juvenile detention center and then was reunited with her parents with a direction for family counseling.

Note: Like several other attorneys, I was talked into purchasing a handgun by a Troy police officer (who just happened to work at a local gun store). Concealed weapons permits were not readily given out since New York had very restrictive gun laws. Usually, in the absence of a compelling need, handgun permits were usually given out only for hunting and target practice, or to business owners who demonstrated a need. The licensing officer in upstate counties was usually the county judge. When I applied for my permit, John Casey, the former district attorney, had been elected county judge, and he took with him his confidential secretary, Kay James. Judge Casey gave Kay a stack of signed blank permits and left it to her discretion as to who would get permits and the restrictions on the permits. Kay readily gave me an unrestricted permit, and I carried the gun in a belt holster under my suit jacket for many years, including when I appeared in court, including the Appellate Division and Court of Appeals. Sometime after that, I was assigned to represent a man from Bennington, Vermont, who had bought a new Smith & Wesson Airweight .38 Special to kill his wife, who was then living in Troy, and hired a taxicab to take him to Troy.    Before seeking out his wife, his cab driver suggested that he temporarily leave his weapon at the Troy Police station and going out for a couple of drinks to discuss his plan. When he went to retrieve his gun he was arrested on a felony charge of possessing a concealed weapon without a license. I was assigned by the Troy Police Court judge to represent him, and I got the case dismissed on a technicality. Normally the gun would then be sent to the Sheriff's Office to be destroyed, but even the assistant DA agreed that it would be a shame to destroy the brand new gun. We explained the matter to Judge Casey, who then entered an order transferring ownership to me, and amended my concealed weapons permit accordingly. I sold the Colt Cobra to a friend and still have the Smith & Wesson Airweight.

Captive Love

In 1969, I was assigned to represent a defendant in the retrial of a violent crime. My client, who I will call "Jimmy," was incarcerated in the old Rensselaer County Jail, a dismal three-story structure that the Troy legal community playfully referred to as "that little hotel at Fifth and Ferry."

One summer day, I went to the jail to discuss matters relating to the case. Jimmy, who was usually relatively calm, was very excited. He told me that he was in love. A young female who had been living in an apartment above the Nassau Hardware Store had been arrested for shoplifting or some other nonviolent crime. Her stepfather, a New York State trooper, thought it best that she spend a few days in jail to understand the consequences of her actions better. She was thus housed in the small women's section of the jail. Jimmy told me that they spotted each other and had an instant attraction.

I don't recall whether Jimmy's cell was on the jail's first or third floor, but the young lady's cell was either two floors directly above or two floors directly below his. They discovered (probably by the jail grapevine) that they could speak to each other using the toilets as telephones. Jimmy said they spent hours shouting their love into their respective toilet bowls and planning to be together after their respective releases. Sometimes, however, their love talk was rudely interrupted when the inmate on the second floor flushed his toilet.

Their romance became a joke among the jail staff, and as soon as her stepfather found out, he bailed his stepdaughter out of jail and arranged a "time served" plea for her.

They never did get together, and Jimmy died in a state prison in 2006.

Kenny Gets Out Early

"Kenny" was in his early 20s when I first met him. He was from one of the hill towns of Rensselaer County and was recently married. Kenny had been arrested in Troy for the robbery of an 82-year-old man on Troy's south side. He claimed indigency, and I was assigned to represent him in Troy Police Court. A preliminary hearing was conducted, and the evidence against him was credible. The elderly victim was unwavering in his identification of Kenny as the attacker, as was an eyewitness to the event. The victim belonged to a senior citizen's center, and he had a lot of support and sympathy. The police court judge, Timothy Fogarty, was running for election to become the Rensselaer County Judge, and it was politic for him to be stern. He held Kenny over for the grand jury. To be fair, the prosecutor easily met the burden necessary for the case to be heard by the grand jury, which promptly indicted Kenny on a charge of first-degree robbery, but Kenny was released on bail.

Kenny's case was reached for trial the following spring. By then Tim Fogarty had become County Judge Fogarty. The trial did not go well for Kenny. I asked Judge Fogarty to disqualify himself because he had previously heard the evidence when he conducted the preliminary hearing, but he refused. The District Attorney was unwilling to accept a plea bargain that would have permitted Kenny to serve a year in the county jail, and Kenny was unwilling to agree to any longer sentence. A jury was picked, and the trial was conducted before an audience of senior citizens. Judge Fogarty, always pompous, played to the crowd and gave every break to the prosecution and none to the defense. The trial lasted just one day. The victim again told his story of the robbery, and the police told how they determined that Kenny committed the crime. Kenny did not testify and had no witnesses on his behalf. At one point the jury asked to have testimony read back to them, but Judge Fogarty refused. The jury quickly convicted Kenny of robbery in the third degree. 

Although the judge's law clerk advised him that he had made a reversible error by not having the testimony read back to the jury and that he should declare a mistrial, Judge Fogarty was not about to admit his mistake, and he let the verdict stand. Kenny was sentenced to a term in state prison and was sent off to Clinton Prison in Dannemora, Clinton County.

I appealed his conviction to the 5 judge Appellate Division of the New York State Supreme Court. Even the district attorney considered a reversal of the conviction to be a certainty because of Judge Fogarty's error. To everyone's surprise, the conviction was affirmed. The appellate court unanimously decided that the evidence against him was so overwhelming that the conviction should stand. Everyone was shocked. I had done my best and considered the legal proceedings concluded.

Kenny's wife had a young child and she became a welfare recipient. She desperately wanted Kenny home, but I told her that there was nothing more that I could do. Her minister came to see me, and I explained that Kenny would have to serve out his term, less any time off for good behavior and perhaps early parole. In any event, he would probably be in prison for at least three more years.

During my frequent trips to the Court House, I repeatedly noticed that Kenny's wife and her minister sitting in the anteroom of Judge Fogarty's chambers. Kenny's wife always brought her infant with her, whose crying or babbling clearly irritated the judge's secretary. I learned that they would come to see Judge Fogarty two or three times each week, sitting and waiting until he would see them. Although he explained that there was nothing he could do and dismissed them, they persisted. Finally, he called the New York State Corrections Department and said that he wanted to reduce Kenny's sentence. He was told that it was too late; the sentence was final and he had no authority to modify it. Although he had tried to help Kenny's wife get her husband home early, he became irritated by her continuing visits, always accompanied by her minister and young child.

One morning, I received a telephone call from Judge Fogarty. He told me to come right over to his chambers, which was on the northeast corner of the second floor of the Court House. He sounded very agitated. My office was only half a block from the Court House, and I arrived shortly. I was ushered into his chambers as soon as I arrived. Kenny's wife, infant child, and her minister were already present in the anteroom. Judge Fogarty said that he was assigning me to bring a petition for a Writ of Error Coram Nobis on Kenny's behalf, and he wanted it done immediately. Although Coram Nobis was not a common procedure, I had previously used the writ with some degree of success in vacating judgments when appeals were exhausted or not available because of a lapse of time. A Writ of Error Coram Nobis is usually allowed only under compelling circumstances to achieve justice. It is an uncommon remedy, infrequently granted, grounded in English law. Usually, I applied the application of the writ to vacate a misdemeanor or traffic violation when a license was in jeopardy for multiple violations or to clear the record of someone who had committed some foolish act in their youth. The basis of the petition had to be that there was some fact or situation unknown to the court and the parties at the time of conviction, which, if known, could have produced a different result.  

I told Judge Fogarty that I knew of no grounds for bringing a Coram Nobis proceeding for Kenny. He told me to raise any possible issue that sounded plausible and make it returnable at the next County Court motion term because he was going to grant the petition. He sent a court order to the warden of the Clinton Prison directing that Kenny be released to the Rensselaer County Sheriff to bring him to Troy for a hearing. He told the Sheriff to be sure to bring all of Kenny's possessions with him.

I drafted a minimal petition. The district attorney didn't contest the petition, and the victim had since died. Kenny's conviction was vacated without fanfare, and he was released to the joyful arms of his wife. I never heard from him, or about him, again.

Although Judge Fogarty enjoyed his large, well-appointed chambers in the Rensselaer County Courthouse, which were much grander than the small room in the Troy Police Court located on the second floor of the police station, he was plagued by the view from the easterly window which looked out across Congress Street to a new Jack in the Box restaurant at the corner of Congress and Third Streets.  This fast-food restaurant had its trademark Jack in the Box clown head atop a tall pole which brought it almost to the same height as Judge Fogarty's window. When the restaurant was open for business, the clown head would rotate, and Judge Fogarty would see this smiling clown out of the corner of his eye. He would frequently send a court officer to the restaurant to direct the manager to turn off the rotation and stop it with the clown's facing away from his window.

Cruel and Inhuman Treatment

In the mid-1960s, the New York Divorce Reform Act of 1966 modernized the New York divorce law.  Before that time, the only ground for divorce was adultery.  Under the new law, divorce could be granted for several reasons, but the most popular was “cruel and inhuman treatment.”  Unlike the prior law which required an impartial witness to the adultery, cruel and inhuman treatment could be proven by the plaintiff’s own uncorroborated testimony.  [There was one Troy attorney whose wife, remarkedly, was frequently a witness to the adultery committed by the spouse of her husband's client in uncontested cases.]  Although the procedure has since been liberalized to permit the plaintiff's testimony in an uncontested divorce to be submitted to the Court in affidavit form, the earlier procedure required that the plaintiff be questioned under oath before the justice conducting a Part II Special Term.  A justice might hear from five to twenty uncontested divorces on a Friday morning in Rensselaer County.  The number usually varied depending upon the plaintiff’s attorney’s assessment of the quality of testimony that the attorney could elicit from the client and the judge's reputation in matrimonial matters.  A very liberal judge would have a full calendar. In contrast, those with a poor temperament would breeze through their short calendar, sometimes denying a divorce even when there was no opposition. 

Sometimes, there would be a last-minute substitution of the Part II judge, producing a flurry of reaction by the divorce bar.  If a judge reputed to be tough on divorces was substituted for an assigned liberal judge, many of the attorneys would yell “Next special term at Troy” to the clerk when the calendar was called or “Adjourned to ________________” with a date and/or court in another county to which a liberal judge was assigned.  

George Cobb became a New York Supreme Court judge in January 1969. He was a former County Attorney and County Judge in Greene County, just south of Albany, in the same Third Judicial District as Rensselaer County.  Supreme Court justices were elected district-wide and rotated throughout the district's seven counties, usually monthly. They held trial terms but also “special terms” where motions in civil cases were heard in Part I and uncontested divorces in Part II.  Albany County had the most civil litigation of any county in the judicial district and had a special term every Friday.  Rensselaer County only had two special terms a month, as did other smaller counties in the district.

I presented an uncontested cruel and inhuman treatment divorce to Judge Cobb in early 1969 at the first Part II Special Term he presided over in Rensselaer County after his election to the fourteen-year term.  He was an unknown quantity to matrimonial lawyers, but he was a gentleman, and I confidently brought the application of “Carmella” before him for the required testimony.  Carmella was an attractive young lady of Italian ethnic background from Green Island, a small village across the Hudson River from Troy.  Carmella was about twenty years old and had been married for less than a year to her high school boyfriend.  Although they had known each other for several years, their romance soured after marriage for a variety of reasons, not the least of which was her husband’s drinking and abusive behavior.  Fortunately, there were no children, and Carmella was employed and just wanted out of the marriage, so there were no support issues.  

When the case was called, I brought Carmella into the judge’s chambers behind the main courtroom.  It was an informal setting with the judge, the court stenographer, Carmella, and me sitting around a table. Judge Cobb sat at the head of the table with the stenographer to his right and Carmella to his left.  I sat next to Carmella, who was very nervous.  

After I introduced Carmella to Judge Cobb, the stenographer administered her oath. While Judge Cobb read the divorce complaint and my affidavit attesting to the regularity of the proceeding and the defendant’s default in contesting the divorce, I asked threshold questions to establish her age, residence, date of marriage, name, age, and residence of her husband, whether there were children of the marriage, her employment status, etc.

New York law required that the plaintiff prove that the spouse’s cruel and inhuman treatment of the plaintiff so endangered the physical and mental well-being of the plaintiff to render it unsafe and improper for the plaintiff to cohabit with the defendant.  Mental cruelty was not sufficient; there had to be a showing of physical danger or harm. 

Judge Cobb listened attentively as Carmella tearfully told how her former boyfriend, now husband, rarely took her out for dinner or a movie as they had done before marriage, but now left her home while he went bowling or to bars with his friends, and they argued over his behavior and lack of attention to her.  Frequently, she said, the arguments became physical, and he sometimes struck her. Although this testimony would have been sufficient for most judges, Judge Cobb asked her whether she ever had been bruised.  She replied that just a few days before her court appearance, she and her husband argued after he came home drunk. He threw one of her high-heeled shoes at her, and it struck her and bruised her, leaving a black and blue mark.  Judge Cobb considered this for a moment, and then he asked to see the bruise. Carmella became very flustered but finally stood beside Judge Cobb and hoisted her skirt up to her waist. She pointed to a half dollar size fading black and blue mark that started in the crease between her right thigh and torso and disappeared beneath the pubic area of her modest underpants.  I don’t recall whether Carmella or Judge Cobb blushed more, but Judge Cobb quickly looked away and said “Divorce granted”.  I never knew Judge Cobb to ask to see physical evidence of abusive treatment after that case.

Sometimes, lower court judges were assigned as “Acting Supreme Court Justices” for a particular term to relieve the burden of the elected Supreme Court justices.  These lower court judges were frequently county-level Surrogate Court judges whose courts handled probate matters and adoptions. Surrogate Court judges usually had a much lower caseload than other full-time judges.  Although they were frequently assigned to act as Supreme Court justices to hear Part II divorces in their home counties, they were sometimes assigned to hear Part II divorce cases in an adjoining county.  Rensselaer County’s Surrogate, Matthew M. Dunne, a liberal judge, was sometimes assigned to hear Part II divorce cases in Albany on the same day that Albany County’s Surrogate, John McCall, an intelligent judge but with little judicial temperament, was assigned to hear Part II divorce cases in Rensselaer County.  This arrangement was strictly to benefit the judges themselves and the divorce attorneys in Albany County.  The judges received an additional monetary allowance when they served outside of their home county, and the divorce attorneys in Albany County sometimes had the benefit of a liberal judge.

Judge McCall’s demeanor put off many matrimonial attorneys. He was outspoken.  One morning, during racial unrest in Albany during the 1960s, I was on the crowded Albany County Court House elevator.  Judge McCall, a tall, elderly, white-haired Irishman, stepped into the elevator carrying his lunch in a brown paper bag.  As the elevator rose, he said to no one in particular: “What are the niggers up to today?”  

I frequently presented divorce cases for James Reilly, an attorney with whom I shared offices in Troy.  Jim, a very devoted Roman Catholic, was uncomfortable handling divorces. If his client was a plaintiff, I usually met with his client, reviewed the grounds for the divorce, and conducted a dry run of the testimony before the court date.  One day, Jim asked me to present the testimony for “Doug,” a blue-collar worker in his mid-sixties, who was suing his wife for divorce on the grounds of cruel and inhuman treatment.  However, I did not meet Doug until the morning of the hearing, and after speaking with him, I told Jim that I didn’t think there was enough evidence to meet the burden of proof.  Judge Dunne was the assigned judge, and since I had never known him to deny an uncontested divorce, we decided to proceed.  However, when the matrimonial calendar was called, I learned that Judge Dunne and Judge McCall had switched assignments, and I found myself before Judge McCall.  

The testimony went badly. Doug was very nervous and even had a difficult time testifying as to such minor matters as his date and place of marriage.  My attempt to elicit testimony of cruel and inhuman treatment went nowhere.  He talked only of arguments, sometimes resulting in her calling him names and refusing to cook dinner.  I felt the case was lost, a view clearly shared by a scowling Judge McCall.  The end of the testimony of cruel and inhuman treatment usually ended with a question to the plaintiff on the order of: “Doug, as a result of your wife’s conduct to which you have testified, do you feel that it is unsafe and improper for you to continue to cohabit with her?”  I asked the question and he meekly answered in the affirmative.  Judge McCall, obviously irritated, turned to Doug and snapped: “What the hell did she do to make you afraid of her?"  Doug looked Judge McCall in the eye and said: “Judge, she said that she was going to take the kitchen knife and cut my balls off while I was sleeping.”  There was a silence, and then Judge McCall broke into a big grin and granted the divorce.

       

Judge Filley Retires

Judge Filley Retires

 

Marcus L. Filley was the scion of an old Rensselaer County family.  His grandfather, for whom he was named, owned a stove-making foundry in Troy during the mid-19th century.  (An interesting article about his grandfather is available at http://www.lib.rpi.edu/Archives/access/inventories/manuscripts/MC12.html)

 

“Mark,” as he was known, was born in 1912 and graduated from Williams College in 1933.  After playing one undistinguished major league baseball season for Washington in 1934, Mark followed in his father’s (and grandfather’s) footsteps and went to law school.  He set up practice in Troy and was elected the first Children’s Court Judge in Rensselaer County.  He became the first Family Court Judge in the early 1960s, when the court was established.  Mark was tall, slender, and a distinguished-looking man who wore tortoiseshell glasses.  He was considered a real gentleman. 

 

As a Family Court Judge, he was fair, albeit somewhat indecisive.  In fairness, most Family Court cases involving support and/or child custody are without a clear-cut resolution.  In most cases, no one is happy with the Court’s decision.  The father is unhappy because he feels that he is paying too much support and not getting enough visitation; the mother is unhappy because she is going to receive too little support, and the only reason that the father is seeking more visitation is to annoy her, since he really had no interest in the children when they were living together.  The attorneys are unhappy because they didn’t achieve the result their clients wanted, and the judge is unhappy because he knows that he has not pleased anyone and will likely have the parties before him again, arguing about the same problems or alleging that the other spouse has violated the court’s last order.  Judge Filley usually tried to mediate rather than arbitrate.  It was common in support and custody cases for him to say, at some point in the proceedings, “Gee whiz, folks, can’t you folks agree on...”.  Many attorneys who frequently practiced in Family Court referred to him as “Gee Whiz” when speaking with each other.

 

Aaron was, by all accounts, a brilliant young mathematics professor at Rensselaer Polytechnic Institute (“RPI).  Although he was only in his late 20s or early 30s, he held a PhD in mathematics from a top university and had studied and taught in Europe before taking his position at RPI.  While in Europe, Aaron met and married Eva, a comely young lady from Budapest.  Aaron and Eva moved to Troy, where Eva gave birth to a son.  

 

Eva did not adapt well to living in Troy.  She spoke little English and was uncomfortable with its culture.  She felt uncomfortable socializing with other faculty wives and preferred staying home with her child, while Aaron thrived in this environment.  Eventually, Aaron left, and they divorced.  In the absence of a support and custody agreement, the Court granting the divorce referred the matters of alimony, child support, and visitation to the Family Court.

 

By the time their case came up in Family Court, Eva had, of necessity, taken a part-time job as a waitress in a neighborhood restaurant in Watervliet.  Somehow, Judge Filley made an order of support requiring Aaron to pay $37.50 per week for child support, but nothing for alimony, since Eva was employed. However, in fact, her earnings, after paying for babysitting, were a poverty wage.  Aaron was also ordered to continue paying rent and utilities on the small apartment in which Eva and their son were living.

 

Adding to Eva’s financial woes was her distrust of American physicians, which was likely partly due to her limited ability to communicate with them.  Whenever she or her son was ill, she would call her family physician in Budapest for advice.  If either of them had to see a physician in Troy, Eva would call her Budapest physician to discuss the treatment or medicines that had been prescribed.  She also called her mother frequently to discuss her plight.   Her telephone bills were extraordinary, and she was distraught.

 

On someone’s advice, Eva started writing letters of complaint.  First, she wrote to Judge Filley, who wrote back that he could not discuss her case with her.  Then, she started writing to appellate judges complaining about Judge Filley.  Finally, she was advised to get a new attorney and request a rehearing.  At that time, she hired Jim Smith, a Troy attorney whose practice primarily focused on matrimonial and family law.  I was engaged to represent Aaron, whose former attorney declined to represent him on the rehearing.

 

It was a terrible morning in Family Court.  Eva wept and complained about her poverty, her son’s illnesses, about living in a strange land without friends, and Aaron’s broken promises.  Child support of at least $100.00 per week would help alleviate her misery.  Aaron blamed Eva for her problems.  She should have made a greater effort to learn the language of her new homeland and to make friends.  It was an absurd waste of money to call a physician in Budapest when there were fine doctors in Troy whose medical fees were substantially covered by his RPI health insurance program.  She could work longer hours at the restaurant and add to her income.  Furthermore, the Court had already determined $37.50 per week, and there had been no change in the circumstances.  Judge Filley’s “Gee, whiz, folks...” plea fell on deaf ears.  He called a recess and called Jim and me into his chambers.

 

Mark told us that he thought both of our clients were crazy, and he wanted us to work out a compromise agreement.  He adjourned the matter until after lunch to give us time to consider.  Jim and I tried our best to come to a resolution.  I suggested $60.00 per week, and Jim suggested $75.00 per week.  Aaron refused to come up from $37.50, and Eva didn’t want to consider anything under $100.00.

 

Judge Filley ascended to the bench promptly at 1:00 pm.  He called Jim and me to the bench and inquired whether we had reached a resolution.  We told him there had been no movement in our clients’ positions, although we felt there was some middle ground.  Judge Filley told us that he would leave the bench forever rather than decide the case.  He announced on the record that he was feeling ill and was going to visit his physician.  He adjourned the hearing and walked out of the courtroom.  He never returned to the bench.  He took some medical leave, and upon its expiration, he resigned his judgeship and opened a law office on First Street in Troy, where he did not practice matrimonial or family law.

 

With Judge Filley on medical leave, the judicial administration assigned Family Court judges from other counties to cover Judge Filley’s calendar until his successor was appointed or elected.  Montgomery County Family Court Judge Robert Sise was assigned to hear and decide Aaron and Eva’s case.  Following a brief hearing, Judge Sise ordered Aaron to increase the weekly payments to $95.00 per week.  Eva was elated, although not entirely satisfied.  Aaron was shattered!  He thought the decision was punitive and wanted to immediately appeal.  I advised him that the decision would not be overturned on appeal.  He said he would not pay, and I told him that if he didn’t pay, he was subject to being held in contempt of Court.  In any event, his salary at RPI would be subject to a garnishee order from the Court as soon as he missed a payment, and the support would simply be deducted from his paycheck.

 

I never saw or heard from Aaron after that.  Jim Smith reported to me that Aaron simply packed up his belongings and moved to Europe, where he secured a teaching position at a college far beyond the reach of the Family Court.  Eva was trying to save money to pay for transportation for her and her son back to Budapest.

 

Habeas Corpus

Jimmy K. was an older attorney in Troy when I first started practicing. He was unmarried and had probably been admitted to the bar in the late 1930s or early 1940s. He was a sole practitioner, but I never knew the location of his office, and I suspect that he practiced out of his home. I don’t think he had much of a practice. I believe he subsisted on court appointments such as being a referee in foreclosure, which required little more than showing up at the courthouse and signing papers prepared by other lawyers.

Jimmy was an alcoholic. He was what you would call a “stinking drunk”. He looked frail and bent over, even on his best days. In the early 1960s, public intoxication was still a criminal offense, and when the Troy police found Jimmy lying drunk on the street, they would cart him off to jail on a charge of public intoxication, a misdemeanor.

Jimmy was never brought to trial on the charge. Instead, he would just be kept in jail for however long it took for him to sober up and feel ready to reenter society. Jimmy would then ask his jailers for paper and pen and carefully handwrite a petition for a writ of habeas corpus addressed to the Rensselaer County Supreme Court. There was an understanding that when Jimmy wrote his petition, he was sober and ready to be released. No hearing was necessary, and a telephone call from the Court clerk to the jail put Jimmy back on the street without fanfare.

Robert Kemp

After graduating from law school and taking the bar exam in 1963, I went to work in Troy for Seymour Fox, an attorney whose office was on River Street. The attorney felt sorry for a 68-year-old man, Robert Kemp, who walked the streets of Troy carrying shopping bags full of papers. He was mostly bald and usually wore a rumpled suit and a long tweed topcoat, even in warm weather. Mr. Fox let Mr. Kemp use his Xerox copier.

Bob Kemp came from an old, illustrious Troy family. An ancestor had founded the Burden Iron Works in the 1800s when Troy was in its industrial heyday. It was the major supplier of horseshoes to the Union Army during the war between the states and a supplier of rails when the west was opened. 

See:http://www.angelfire.com/journal/millbuilder/album3.html

Bob's grandfather had been Troy's mayor and president of a bank in the 1870s. Bob told me that his brother was then the president of Sun Oil Company, and he provided Bob with a stipend. As a young man, Kemp was brilliant. Although he was not a lawyer, he was admitted to practice before the Patent Office. One day, he showed me a current copy of the Aviation News, which stated in an article that some material or process that he had patented in 1923 was just then (in 1963) being implemented into aircraft usage. (See U.S. Patent #1469220 granted to Robert Kemp)

Robert’s troubles reportedly started during the early 1930s. Although he was unpopular as an atheist in a very Catholic city, he became hated as an avowed communist, going so far as to publish small books (one of which he showed me) in which he listed himself as “Robert Kemp, Chief Engineer to Josef Stalin, Troy, CCCP.” (Copies are available at the Troy Public Library and the Library of Congress*) He was openly jeered, and his home at 552 Fourth Avenue in the old Lansingburg section of Troy was frequently damaged by young vandals. He was known in Lansingburgh as “Commie Kemp.” He said that sometime after WWII, he became an anti-communist. In a legal pleading, he described himself as “an inventor, scientist, pioneering engineer, venture capitalist, an anti-communistic businessman, an Atheist, and a Heretic.”

At some time before 1963, vandals set fire to his home, causing considerable damage, which he could not repair. Eventually, the City of Troy commenced an action against him and obtained an order directing the demolition of his house as unsafe and a danger to the community. A default judgment was taken, and a judge signed the order permitting the building’s demolition. Shortly before the demolition was to occur, Kemp went to Judge Donald Taylor and pleaded for help. The judge issued a stay to permit Kemp to appeal the order to the five-judge Appellate Division. Kemp threw himself into the appeal (which was the stage of the matter when I met him).

Kemp based his appeal on the theory that the City’s action was a Catholic conspiracy to punish him for having been a communist and pointed out in his 112± page affidavit of service that Mr. Kelleher, the mayor, Mr. LeForestier, the corporation counsel, Mr. Ryan, the building inspector, Mr. Bizzarro, a deputy corporation counsel, and the Pope were all Catholics. The "affidavit of service" of his notice of appeal was much more extensive than his actual appellate brief, which restated many of the same “facts” and arguments. Most interesting to me were exhibits included in the affidavit of service, such as an actual early 1900s letter that he wrote to his female friend while traveling to Germany to study zeppelins and a 1929 article that stated that he was the principal speaker at a physics convocation at Rensselaer Polytechnic Institute. Although Kemp came to the law office to photocopy certain documents, he produced his legal papers with a typewriter, using a mimeograph to reproduce copies. His typing was not very good, and the documents were rampant with xxxx outs and careted corrections, making the reading quite difficult. (His typing improved somewhat over time as he produced hundreds of pages of pleadings.) Kemp was frugal, and to save money, he mimeographed his early pleadings on used paper. One document I saw, an Appellate Division brief, was printed “Central Markets” in green ink on the reverse side.

Although his legal brief did not address the issue on which Judge Taylor based the stay, the Appellate Division reviewed the record on appeal. It reversed the lower court order, remanding it to the lower court for a fact-finding hearing, which had never been held (it had acted solely on affidavits). Corporation Counsel LeForestier was so upset that Kemp had beaten him that he simply abandoned the case. Kemp, however, understood the decision to be the appellate court’s acceptance that he was the victim of a Catholic conspiracy. Kemp then launched a series of pro se lawsuits against the City of Troy and LeForestier, both in the New York Supreme Court (the lower general jurisdiction court) and in the US District Court, all of which were dismissed. I believe that he died soon after the last dismissal.

I copied this from a Chicago church website regarding Kemp’s grandfather:

 “William was a well-known Troy business leader, described in contemporary histories of the city as "among the most intelligent and sagacious of the businessmen of Troy" and "an inspiring example to the youth of our land." A self-made man who had left school at the age of nine, he became president of a brass foundry and a bank, served as mayor of the city from 1873 to 1875, was active in the Republican Party, and served as a trustee of several institutions in the city and senior warden of Christ Episcopal Church. Robert Kemp himself was unmarried and, at this time, probably in his mid-forties; he was a graduate of Williams College (there is no information on the seminary which he attended) and had served for seventeen years as curate of St. Paul's Church New York City, until December 1906.”

*               

                                                    

                                                    

Tommy Conducts a Preliminary Hearing

Justice Tommy Restino, Jr.

When an arrest is made in New York, the criminal defendant is first brought before a magistrate for arraignment. In rural towns, the magistrate is usually one of the town justices in the town where the crime was committed.

The Town of Hoosick is a rural town in the northeast corner of Rensselaer County, at its border with Vermont. Its economy is mostly agricultural; mainly family farms. Its one village, Hoosick Falls, is an old mill town.  Hoosick is a scenic area with some antique shops and is notable as the home of the late artist Grandma Moses. The Moses family still operates a farm with a roadside stand that sells excellent melons, corn, tomatoes, and other produce grown there.

For many years, one of the town justices has been Thomas Restino, Jr. He is an affable fellow who was usually reelected without opposition and endorsed by all political parties. In the late1960s, and for some time in that era, his main occupation was operating an Olixir brand gasoline station just south of Hoosick Falls on Route 22. Many criminal defendants and traffic violators arrested in the area were initially brought before Judge Restino, who was usually available during the daytime at his Olixir station. The court was frequently held right at the Olixir station, sometimes interrupted when Tommy would temporarily halt the proceedings to pump gasoline for a customer.

In the late 1960s, or perhaps in 1970, a rash of barn fires occurred in the Town of Hoosick. Ultimately, the New York State Police arrested several high school-aged young men from the community and charged them with arson. They were arraigned by Judge Restino on multiple felony charges. The law required that each young man have separate counsel, and I was one of several attorneys employed by parents or assigned by the court to represent the boys. All of the defense counsel demanded a preliminary hearing.

A preliminary hearing is a fact-finding hearing. It is held after a person is charged with a felony but not yet indicted by a grand jury. The purpose is to determine whether there are, in fact, grounds to have the matter presented to the grand jury for indictment. Defense counsel usually wants a preliminary hearing because it gives them the opportunity to cross-examine the prosecutor’s witnesses and find out the strength of the evidence against their client.

Judge Restino scheduled the preliminary hearing for an early weekday evening. Because there was so much public interest in the case, both by the victims of the arson and other farmers, as well as the families of the boys, the preliminary hearing was held in the high school gymnasium to accommodate the crowd. In addition to Gus Cholakis, the Rensselaer County District Attorney, some of his staff members, and New York State Police investigators, all of the defense attorneys attended. It was an unusually large and somewhat boisterous crowd that Tommy had to preside over. A record of formal court proceedings is required. Usually, a court employs a professional court reporter who (in that era) typed a verbatim record of everything said into a stenotype machine, and later translated the paper record into a typewritten transcript. There were no professional court reporters in the Town of Hoosick, and rather than bring one in from Troy, Tommy employed two young local women who knew secretarial shorthand. He instructed one of them to record the attorneys’ questions and the other to record the witnesses’ answers. Although the ladies tried their best, the system's inadequacies were apparent when an attorney asked for some testimony to be read back. Listening to them try to coordinate the questions and answers was quite amusing, and I think that sometimes attorneys requested that testimony be read back simply for their amusement.

Each defense attorney had a separate right to cross-examine each prosecution witness and the proceedings dragged on. Tommy struggled with objections to testimony made by the several defense attorneys, as he was a layman with no legal training. At one point when he sustained a defense objection to some evidence, the victims in the room started loudly voicing their displeasure at his ruling. Tommy explained to them that he personally didn’t always agree with the rulings that were made by him as the judge, and he spoke of himself as the judge in the third person: "I don't agree with him, myself, but he is the judge and that's how he had to rule."

The preliminary hearing could not be completed in just one evening and dragged into a second night. After each session was adjourned, the prosecutor, his staff, some of the police investigators, and some of the defense counsel stopped at Brother John’s seedy tavern on Route 7 in Pittstown for a few drinks and a discussion of the proceedings, which were an amusing change from usual court appearances.

Ultimately, Judge Restino determined that the district attorney had produced sufficient evidence, and the Rensselaer County Grand Jury subsequently indicted the boys. Because of their ages and previously unblemished histories, plea bargains were reached and the boys pleaded guilty to lesser charges. They were placed on probation by the County Court.

Harry and the Trooper

Sometime in the early 1950s, my uncle, Harry Honig, bought a gas station about a quarter mile east of Jack’s Place.  It had been a garage and gas station operated on and off since the 1930s.  As a child during World War II, I remember that it had a small red siren attached to it that was powered by the garage’s air compressor, and I can still recall how the siren’s shrill sound announced that it was time for my father to don his white hat and stop traffic during the air raid drills.

I think Harry bought the garage to give him something to do during the winter months when he was not farming.  For a year or two during the summer months, his daughter, Leona, operated the gas station because Harry would be busy on his farm.  The structure was a wooden structure with a tin roof.  Harry was not a mechanic and didn’t do any automobile repairs there.  He just operated the facility as a gas station and a place to store his farming equipment off-season.  There were two gas pumps: one for regular gasoline and one for “Ethyl” (high-test gasoline).  Like the driveway at Jack’s Place, Harry’s driveway consisted of small, multicolored pebbles bought by the dump truck load from some supplier in Pittsfield, Massachusetts.  The pebbles were about one to two inches deep and had to be refreshed every couple of years, as the weight of automobiles would eventually press them into the dirt base.

One Sunday morning, Harry arrived at his gas station and found that a large “18-wheeler” tractor-trailer had parked in his driveway, perpendicular to the highway, but obscuring the view of the gasoline pumps for westbound drivers on Route 20.  The truck driver was nowhere to be seen, and there was no message on the vehicle explaining why it was parked there or where the driver was.  Harry was angered and frustrated, feeling he was losing business.  Finally, he parked a tractor that he had stored in the garage closely in front of the truck so that it couldn’t be moved.  Later that day, the driver returned, and Harry demanded some small monetary compensation before he would move the tractor and free the truck.  The truck driver refused and left.  The truck driver contacted the New York State Police, who dispatched a young Trooper to the garage to resolve the problem.

The Trooper ordered Harry to move his tractor, but Harry refused, telling the Trooper he would move it when he was paid.  They argued, and the Trooper realized that he was powerless to make Harry comply with his directive since the truck and the tractor were on Harry’s private property, where he had no jurisdiction.  Angered, the Trooper got into his gray Ford patrol car and ripped out of the driveway, spinning the wheels as he traversed it, sending pebbles flying and leaving two parallel ruts down to the dirt base.

The Trooper didn’t know Harry and certainly didn’t know that Harry had been Nassau’s Justice of the Peace for many years and was currently its elected Town Supervisor.  Harry, of course, knew all the senior members of the State Police stationed at the barracks in East Greenbush, and he telephoned the barracks to explain the situation to the sergeant in charge, detailing how this brash young Trooper had torn up his driveway.

About an hour later, the young Trooper returned, this time with a very different attitude.  After some discussion, the truck driver gave Harry an agreed-upon sum of money as compensation for the loss of business, and Harry moved the tractor, and the truck left.  Then Harry gave the Trooper a rake, and with satisfaction supervised as the Trooper raked the pebbles to fill in the ruts he had created, as he had been ordered to do so by his Sargent.