(Very) Early Morning Court in Troy

One cold February night in 1975, John D., Esq., an Albany Law School alumni, got word that his two brothers had been arrested by officers of the Troy Police Department for driving while intoxicated, public intoxication, public lewdness, and a violation of Troy’s open container law. Like any good attorney and brother would do, he arranged for his brothers to be arraigned in the basement of the home of Supreme Court Justice William R. Murray at 4:00 A.M. One brother pleaded guilty to a charge of reckless driving, and the other brother pleaded guilty to public intoxication. Justice Murray imposed a fine in both cases but immediately suspended the sentences. 

Justice Murray filed the record of the proceeding as an order of the Supreme Court in April, and the District Attorney appealed the order to the Appellate Division. That appeal brought the issue of the jurisdiction of the Supreme Court into sharp focus: Could a Supreme Court Justice preside over misdemeanor cases as if he were a local criminal court judge?

In its precedent-setting ruling, subsequently cited by the Court of Appeals, the Appellate Division answered in the affirmative but stated: “Finally, while we have upheld jurisdiction in this case, we do not condone the manner in which this case was handled."

Infant Settlements

A competent adult can settle a lawsuit with a signature, but the rules differ for a child. Under the New York civil procedure, court approval is necessary to settle the claim of an infant, a person under the age of eighteen years. Most negligence claims arise from automobile accidents, fall downs, or dog bites, and a substantial number of those claims are the claims of injured children.

When an adult's claim is settled, the claimant's attorney draws a general release, which specifies the party being released, the amount being paid for the settlement and release, and a brief account of the nature of the claim. However, if the infant is the claimant, the claim's fairness must be reviewed by a judge. A judge of the court in which a lawsuit is pending reviews the application. If the settlement was arrived at before the commencement of a lawsuit, the application could be made to any judge having territorial and monetary jurisdiction over a lawsuit brought on the child's behalf. 

An application for an "infant settlement" is prepared by the child's attorney. It includes a petition by the child's parent or legal guardian setting for the nature of the child's injury and claim, expenses incurred, and reasons why the petitioner thought that the child's best interests would be promoted by a settlement. An affidavit by the petitioner's attorney addresses the legal issues (usually suggesting that the child might either lose at trial or not recover more than offered in settlement). Also attached are pertinent medical records, police accident reports, and an affidavit from the child's attending physician setting for a brief statement of the treatment and prognosis. These papers are then topped by a proposed order to be signed by the judge approving the settlement and terminating the child's future rights to sue. An appointment would be made with the judge. At the appointed time, the child, his parents or legal guardians, and their attorney would appear before the judge in his chambers to discuss the settlement, and once satisfied, the judge would sign the order. The order would provide the amount of attorney's fees, and if the settlement was substantial, it would direct that the net recovery be put in a special bank account to be withdrawn when the child reached his majority. Earlier partial withdrawals were permitted for good cause. 

Different judges took vastly different approaches to their review of infant settlements. Troy City Court Judge Matthew M. Dunne was at one end of the spectrum. Judge Dunne was a part-time civil court judge who maintained a private law practice on Second Street, specializing in wills and estates. He was a true gentleman. Attorneys loved to bring infant settlements before him. Although he usually knew nothing of the proposed settlement before meeting with the attorney and his clients, he would skim the pages and announce that the proposed settlement was among the finest he had ever seen. He praised the lawyer and wondered out loud how the lawyer was able to get such a large settlement, or a settlement at all, given the facts of the claim. The child's parents would beam when  Judge Dunne suggested that they must be very clever to have hired such a fine lawyer. With a flourish, he would sign the settlement order.

The other extreme was DeForest C. Pitt. Judge Pitt was from the small Village of Hoosick Falls. He was politically connected and had been County Attorney and then County Court Judge. The rumored mistress of a Republican political leader was his appointed confidential secretary. He was eventually elected to the Supreme Court, a trial court that handled mostly civil cases. Since Judge Pitt was the resident Supreme Court judge, infant settlements in cases that were pending in that court frequently came before him, as did other proposed settlements in which the monetary amount exceeded the Troy City Court's jurisdiction. To the extent that Judge Dunne made an attorney look brilliant, Judge Pitt made attorneys appear wholly incompetent. He read every word of the documents in the presence of the infant and parents. Like a proofreader, he corrected grammar, added or deleted sentences, and marked up the documents with relish. Once, I saw him change an affidavit that had been signed by a physician! He questioned the infant and parents and frequently broadly hinted that although he was approving the settlement, he thought the amount was low. Sometimes, he would get on the telephone and call the insurance adjuster who had made the settlement offer and try to increase the offer. That ploy sometimes resulted in a modest increase in the settlement since it was difficult for most insurance company adjusters to refuse a Supreme Court judge who started the discussion stating that he was about to reject the settlement unless the amount was increased. The obvious result was that the infant's parents left the proceeding believing that their attorney was incompetent and thankful that Judge Pitt had become their advocate and was so willing to correct all of their attorney's mistakes, which were obvious to him.

While annoying, it was not too much of a problem to wind up with an infant settlement order that had been marked up because the client did not typically get a copy of the order to take home. The original order was filed in the County Clerk's office. A conformed or photocopy of the order was sent to the insurance company or the other party's attorney who was paying the settlement. They were used to receiving Judge Pitt's marked-up orders. 

 However, it was another matter when Judge Pitt signed a divorce or annulment judgment. A judgment in a matrimonial action was the end product that a client took with him or her, and attorneys wanted that to look perfect (even if the terms were not always what the client had hoped for). A matrimonial judgment was not signed in the presence of the client. After the matrimonial hearing, the prevailing attorney would purchase a transcript of the testimony and the judge's oral decision and prepare a written Finding of Facts and Conclusions of Law and a separate Judgment for the judge's signature, which was delivered to his chambers to be reviewed by the judge's law clerk and then submitted to the judge for his review and signature. Judge Pitt would mark up the proposed judgments as he did with infant settlement orders. Like many other attorneys, I did not want my clients to receive a messy document, so I would have my secretary retype the order, incorporating all of Judge Pitt's modifications, and resubmit it to his chambers with the originally signed judgment. This was before the common use of even rudimentary word processing equipment, so the judgment would have to be retyped from scratch, but the result, a clean document, was worth the extra effort. I always studied the changes that Judge Pitt made to my matrimonial judgments and incorporated such changes in future documents that I submitted to him. One day, his law clerk, Paul V. Morgan, Esq., brought out a divorce judgment signed by Judge Pitt that did not have a single mark on it. Paul was beaming and told me that it was a first. I was confident that I now had the exact language that Judge Pitt wanted. A few days later, I submitted the judgment in a similar divorce case that mirrored the prior, unblemished judgment in every possible way. It came back to me marked up with a whole new set of changes added by Judge Pitt in his bright, blue ink.

Litigation

It is not infrequent that an attorney's clients consult regarding some wrong they have suffered due to a commercial transaction that did not meet their expectations.  After listening to the client's story of the history of the transaction and reviewing the documents the client provides, an attorney will usually try to resolve the matter by a telephone discussion with the other party or a letter to that party requesting a resolution of the issue.  If a satisfactory resolution is achieved in this manner, the cost to the client is minimal, and frequently, the attorney will not even bill the client for the modest effort involved.

Sometimes, however, the telephone call or letter approach fails, leaving litigation as the only recourse open to the client.  Litigation is always time-consuming and expensive.  If the monetary amount of the loss the client has sustained is not significant, I would frequently suggest that clients represent themselves by bringing a lawsuit in a local small claims court, which usually has jurisdiction for claims that do not exceed $5,000 or so.  In those small claims courts, the claims are simply stated in the claimant's own words on pre-printed forms, and the filing fee is nominal.  Neither party is usually represented by counsel, and the judge listens to both sides and renders a quick decision, not too much, unlike the "Judge Judy" television show.

Small claims courts only work out for some clients in many situations for various reasons.  Some people feel uncomfortable going before a judge by themselves or feel that the issue is too complicated to explain.  In any discussion with a client regarding the practicality of employing the attorney to commence a lawsuit to press their claim, the attorney is usually quick to advise the client that even if the client prevails and gets the monetary judgment, the client is entitled, they may still suffer a loss because in most cases the court cannot award attorney's fees as part of the judgment.  Some contracts stipulate that the prevailing party can recover reasonable attorney's fees, but that is a double-edged sword because if the client does not win, he may also have to pay the other party's attorney's fees.

In my practice, I always tried to discourage clients from employing me to represent them to sue on modest claims, even though they sometimes said that the cost be damned; they wanted to sue on principle.  In the latter years of my practice, I used this personal example of how involved and expensive pursuing a modest claim in court can be.

Soon after building a new home in the early 1990s, my wife and I employed an interior decorator, Richard Seiden, to help us furnish the home.  Richard did an excellent job and took us to a design center in Manhattan, where we purchased much of our new furniture, including a large, curved sectional sofa for our living room, which was elliptical in shape.  Our home had oak floors, but Richard suggested using area rugs in some places.  The first area rug needed was an 8 x 8 square for our breakfast area.  Richard sent us to David Cohen's Lektro-Kleen, Inc., a commercial rug cleaner and fabricator who had been in business for many years in Albany.  Richard helped us choose the rug materials, and Mr. Cohen's company fabricated the rug promptly and for a reasonable price.  We were very satisfied.

After our living room furniture arrived, Richard offered to design an area rug that would visually tie the furniture together.  The rug was designed to follow the elliptical shape of the room and the contour of the curved sectional sofa.  The rug was to be fabricated in purple with a black border.  We showed the design to Mr. Cohen, and after he came to our home to view the job, he told us that he could make the rug Richard had designed and made notes and sketches.  We purchased the materials through Richard for $1,996.42 and employed Mr. Cohen's company to fabricate them for an agreed price of $1,400.00.

In May 1994, two workmen came to the house to make a template for the rug.  They did not have Mr. Cohen's notes or sketches.  They used a rope to outline the rug area, then moved the furniture and made a large paper template.  The workmen did not place the furniture on the template to check it.  A few weeks later, the workmen brought the finished rug, but after the furniture was placed on it, it became clear to us that the curve did not match the curve of the sofa, and the workmen brought the rug back to their shop.  After that, it became difficult to communicate with Mr. Cohen, and Richard became the intermediary.  A meeting was arranged at our home, and although the workmen brought the rug back for the meeting, Mr. Cohen didn't show up, although he had told Richard that we would personally come to inspect the problem.  Richard showed the workmen the problem, and after they agreed that they could not move the furniture to match the curve of the rug, they made a new template with the furniture in place.  The employees agreed with Richard that the template should have been made in this manner initially.

Everything went downhill from that point.  Mr. Cohen wouldn't return my telephone calls and told Richard he wanted us to buy more materials to piece on the rug, which was unsatisfactory.  In addition, he wanted to be paid before doing anything further.  By November 1994, he had stopped taking Richard's calls and didn't respond to my letters, so I decided that litigation was the only resolution.

Even though our claim was well within the monetary limits of small claims courts, I preferred to sue Mr. Cohen's company in the Supreme Court.  Had I elected to sue in the small claims section of Albany City Court, which had jurisdiction because the business was located in Albany, I knew that I could lose a morning waiting to be heard because of the crowded calendar, and the law permitted me to sue instead in Rensselaer County, where we lived, and which was convenient for me.  I thought that when he received the summons and complaint, Mr. Cohen would come to his senses and try to resolve the matter instead of incurring the cost of employing a lawyer to defend the case.  I didn't know that his daughter, Elise Hiller, had recently been admitted to the New York bar and was employed at Albany Law School.

Ms. Hiller answered the complaint, denying that the rug's construction was faulty and counterclaiming for the labor of fabricating the rug and for storage fees for storing the rug at the shop.  There were no negotiations, and the litigation proceeded.  I placed the case on the court calendar for trial, but because the amounts in contention were less than $10,000, the rules required that we submit to mediation.  We spent the better part of a day before the mediator, a young female attorney assigned by the court to hear our case.  My wife and I testified, as did Richard on our behalf.  Mr. Cohen and his workmen testified on the defendant's behalf.  At the conclusion, the mediator directed that Mr. Cohen remake the rug but did not give any monetary award to either party.  I asked the mediator how I could enforce her decision if the remade rug was unsatisfactory, and she replied that she knew no way of enforcing it.  Once again, I put the case on the Supreme Court calendar for trial.  This time, a conference was held before Judge George Ceresia, which was not productive.  Judge Ceresia assigned the case to be heard by M. Andrew Dwyer, a retired Rensselaer County Judge.

Photo taken during Court Observation

The trial in Rensselaer County Supreme Court was a more formal replay of the mediation.  I testified by asking myself questions and answering them, and I acted as the plaintiff's attorney in questioning the other witnesses.  Ms. Hiller elicited the testimony of her father and his workmen.  At the conclusion of the testimony, Judge Dwyer said that he could not reach a decision without seeing the rug and furniture and adjourned the case to a future date at our home.  Judge Dwyer and a court clerk and stenographer came to our home.  Mr. Cohen and his workmen brought the rug back and put the furniture on it, adjusting it as best as possible to match the curves.  After inspecting the rug, Judge Dwyer announced that he required further testimony and set a date to reconvene in court.  At that time, Judge Dwyer asked a few innocuous questions and then announced that his decision was in our favor and against the defendant.  Based on a transcript of Judge Dwyer's decision, I entered a judgment against Mr. Cohen's company for $3,479.98, which included our original $1,996.42 for materials, interest, statutory costs, and out-of-pocket litigation expenses.  I then sent a restraining order to his bank to freeze that amount and an execution to the Albany County Sheriff to pick up the money.  I thought (hoped) that would be the end of the saga, but it was not to be.

Ms. Hiller promptly filed an appeal of the judgment to the five-judge Appellate Division of the Supreme Court and made a motion to stay the collection of the judgment pending the decision on the appeal.  The court granted the stay on the condition that her client deposit the total amount of the judgment with the court clerk.  Although court rules require that an appeal be perfected by filing a record on appeal, consisting of all court documents and a transcript of testimony, together with the appellant's brief (written legal argument showing why the trial court's decision was an error), be filed within 60 days, Ms. Hiller repeatedly requested extensions of time until she was given a final deadline by the appellate court.  She finally filed the required documents, including a brief citing numerous cases to support her contention of error. A date for oral argument was set by the court.   By this time, I was disgusted with the time that the litigation had taken.  I submitted a brief reply of a cover sheet and one page that basically said that the cases cited by Ms. Hiller were irrelevant.  I notified the clerk of the Appellate Division that I would not attend the oral argument.

A few days later, the appellate court issued a one-sentence decision denying the appeal.  Since the decision was unanimous, there could be no further appeal, and I collected the judgment money from the court clerk.

Litigation, Part II

 In 2002, Tomhannock, LLC, a limited liability company I owned with a partner, entered into a contract to sell a 15+ acre parcel near the Tomhannock Reservoir in Pittstown, New York, to DiLallo.  This had been approved by the planning board for a single-family residence, as it had an adjacent 15+ acre parcel.  Tomhannock had initially wanted to carve out a 3.5-acre parcel from the front of both parcels and had them surveyed but did not get local planning board approval.  The purchase price was to be $105,000, but DiLallo only wanted to put down $50,000, so we fashioned a deal by way of an option agreement, which provided that if DiLallo failed to pay the balance of $55,000 within 10 years, he would convey the 3.5-acre parcel back to Tomhannock.  A similar arrangement was made with the purchaser of the adjacent parcel, who soon paid off the balance, and we released the option for that parcel.

DiLallo decided not to build and sold his parcel to LaPorte.  During early 2011, before the expiration of the 10-year period, Tomhannock, having not received the balance of $55,000, demanded that LaPorte execute a "reconveyance deed" of the 3.5 acres back to Tomhannock as provided in the option agreement.  Instead, while I was negotiating the matter with LaPorte's attorney, LaPorte sold the parcel to Roundabout Resources, LLC, a New Mexico limited liability company with its official address in the Canary Islands, Spain, in July.  The deed to Roundabout Resources showed its address as being in Fairbanks, Alaska.  I wrote to that address and received a letter stating that Roundabout Resources was not obligated to execute a reconveyance deed because its subdivision had not received planning board approval.  I then did some research and learned that the Alaska address was merely a paid mail drop, obviously intended to mislead Tomhannock as to its true owner and location.  I found that Roundabout Resources, LLC,  was owned by Kyle Litz, a resident of nearby Saratoga County who is a chemist with a Ph.D.

As I was then living in Florida, I worked with my Troy attorney, Thomas Spain, and commenced an action in the New York Supreme Court to compel the execution and delivery of the reconveyance deed.  That was in 2012.  Mr. Litz retained a large law firm to defend the lawsuit.  There were no settlement discussions since Tomhannock's position was that Roustabout Resources had to honor the terms of the option agreement (binding upon all of the subsequent owners) or pay the $55,000.  Roustabout stood firm in its position that it was not required to do anything absent planning board approval, and without the approval, a deed to the reconveyance parcel could not be recorded.  

During the litigation, the case came before a trial court judge on three different occasions, each ruling in favor of Tomhannock. Roustabout Resources appealed two of the rulings to the five-judge Appellate Division, which affirmed the trial court's decisions.  Finally, Roustabout Resources twice appealed to the seven-judge Court of Appeals, the court of last resort in New York, which on June 4, 2019, unanimously affirmed all of the lower court decisions and required the delivery of the reconveyance deed, together with statutory costs to Tomhannock.  33 N.Y.3d 1080 (2019)  I circumvented the local requirement that subdivided parcels could not be recorded without planning board approval by attaching the deed to the Court of Appeals decision that was filed in the County Clerk's Office, and a title company then insured title, permitting its sale.

 Litigation of this type, with three proceedings before a trial-level Supreme Court judge, two appeals to the Appellate Division, and two appeals to the Court of Appeals, is both unusual and costly.  Roustabout Resources' expenses must have significantly exceeded the $55,000 it could have paid to retain the 3.5-acre parcel because it not only used an expensive law firm but it had to pay for printing the extensive records of all of the prior proceedings for each court appeal, the filing fees, and ultimately Tomhannock's statutory fees as the prevailing party.  Also, during the almost seven years of litigation, Roustabout Resources could not sell its parcel because the litigation rendered it effectively unsaleable.  During that period, the value of rural land in this area of Rensselaer County tanked as rising property taxes and development costs made selling it for anything other than a fraction of its original value unlikely.

I then owned the 3.5+ acre parcel and offered to donate it to a conservation not-for-profit organization in Rensselaer County, but the donation was refused because it was too small.  Instead, I sold it to an adjoining landowner.  From my perspective, the litigation was a matter of principle that I could afford to fund, and I never doubted that Tomhannock would prevail.  I remain amazed that Mr. Litz's attorneys or Mr. Litz apparently did not understand the controlling legal issue.

 When the litigation was over, Mr. Litz telephoned me, and we discussed the case.  He was surprised that I was able to get the reconveyance deed recorded without municipal approval, and he told me that although he purchased the property with the intention of building his forever home, his plan now is to retire to his native Texas.

Jury Duty

For many years, certain groups of persons were exempt from jury duty in New York.  This included attorneys, physicians, dentists, and even certain businessmen.  There were 27 statutory exemptions, and the judges were also permitted to grant exemptions to other persons based on individual circumstances.

 As of January 1, 1996, the rules were changed, and the exemptions were eliminated.  The new rules made some minor exceptions and gave those summoned the chance to put off jury duty once for a period of time but required a doctor’s certificate if an exemption was requested based upon a medical condition.  Before the doctor’s certificate became a requirement, women could almost always be excused by telling the judge quietly that they couldn’t sit for a long period, and the male judges never inquired about the reason - they just excused the woman.

 Shortly after the new rules were adopted, I received a summons for jury duty in the Rensselaer County Court.  A jury was being selected for a criminal case.  I fully expected to be excused by a peremptory challenge by the prosecutor because I had previously practiced criminal defense law in that court, ranging from minor misdemeanor cases to homicide.  I also expected the defense attorney to excuse me by a peremptory challenge because I had been an assistant district attorney prosecuting crimes in that court and had been the County Attorney for 13+ years.  To my surprise, neither attorney exercised their right to a peremptory challenge. I was sworn in, being the first practicing attorney in Rensselaer County to serve on a criminal jury.  [Actually, another attorney was also seated.  She worked for a state agency but had never herself acted as an attorney for a client because, she told me, she was president of the local gay and lesbian society and believed that, as such, the court or a juror might not be sympathetic to her client.  The judge admonished her during the trial for sleeping during testimony.]

 The two defendants, who appeared to be in their mid-60s, were charged with attempted burglary and kidnapping.  The facts were actually quite amusing.  The crimes occurred at a strip shopping center in the Town of East Greenbush.  The testimony of a town police officer was that during the evening in question, he and a fellow police officer sat in their patrol car, generally hidden from view from the shopping center, but at a position from which they could observe a drug store at the corner of the strip mall.  They were staking out the drugstore because a store employee had complained that a Black man had entered the drugstore the previous evening and spent some time checking out the various aisles but left without buying anything.  The employee believed that this Black man was casing the store in preparation for a robbery, and the policemen were watching to see if that happened.  Although this robbery didn’t occur, the policemen did notice two men (the defendants) on the flat roof of the building.  The defendants were attempting to cut through the roof of the building to get into the closed bank below.  The policemen identified themselves and ordered the defendants to come down, where they planned to place them under arrest.  However, when the defendants came down, they disarmed the two young policemen and hid them and themselves in a culvert behind the shopping center.  Apparently, someone at the scene called the New York State Police, and in a short time, the State Police officers found and arrested the defendants and freed the police officers.  The defendants’ attorney offered no witnesses or evidence and appeared to think that his best, if not only, chance for getting an acquittal or hung jury was to stress the injustice of the drug store employee and the police to think that because a Black man had been in the store but not purchased anything that it was cause to believe he was planning a robbery.  His remarks were to the jury as a whole, but particularly to the foreman of the jury, a Black man who was a social worker.

 I found my experience as a juror to be very interesting and educational.  The jury was a mix of men and women, some very interested in the experience and some just upset as having to give up time from their normal lives to fulfill their civic duty.  During the first morning of testimony, I noticed that some were fidgeting and some were mumbling to each other.  I raised my hand, and when the judge inquired why I had done so, I told him that the jury would like a restroom break, which was quickly granted, and thereafter the judge ordered frequent restroom breaks.  As an attorney, the jurors frequently asked me to explain what was happening when the attorneys were called to the bench and spoke in low voices with the judge or why we were sometimes ordered back to the jury room in testimony.  As was the rule at the time, we were not permitted to take any notes or have a copy of the written criminal indictment.  Jurors had to rely on their memories of the testimony and the judge’s charge when we were sent to deliberate.  The court would not provide coffee in the jury room until we were sent to deliberate.  Some jurors were quite animated in their discussion of the facts, and the foreman mentioned that he had been stopped for “driving while Black” by East Greenbush policemen in the past.  While some jurors thought that a conviction for the kidnapping charge was too harsh under the circumstances, as it was unlike their notion of a traditional kidnapping, such as a kidnapping for ransom, the decision to convict on both counts was unanimous.  However, before sending word to the judge that they were ready to report, the jurors sent a message to the judge asking if they might also make a statement criticizing the East Greenbush police for their incompetence, but the court refused that request, and the foreman announced the verdict.  After we were formally excused, the judge came to the jury room and told us that the defendants, brothers from another state, had recently been released from a federal petitionary where they had been sentenced for bank robbery.

Update:  In 2021, I researched more and spoke with the attorney who represented one of the defendants. I learned that the two defendants were the most notorious and successful bank robbers in the United States and had ties to President Nixon and Jimmy Hoffa.  I learned this from speaking with him, researching old newspapers, and reading a book written by Amil Densio, one of the defendants.  I also spoke communicated with his two daughters.

October 9, 1996, was a terrible day for both the East Greenbush Police Department and the most notorious bank robbers in the United States.

It all started the previous evening.  A clerk in the drug store at the westerly end of the Shop-n-Save Plaza (now the Greenbush Fair Plaza) on Columbia Turnpike complained to the East Greenbush police that a Black man had entered the store that evening, walked up and down the aisles, and left without purchasing anything. The clerk was uncomfortable and believed the man was casing the store for a future robbery.

Based upon the complaint, East Greenbush police officers Glen Rauch and Daniel Keegan staked out the drug store the following evening, hiding behind the westerly brush line. As they watched the drugstore, they observed a van with Ohio license plates driving into the plaza near it, next to the Albany Saving Bank branch.  Three men exited the car carrying a canvas bag, although there was some confusion about whether they walked toward the bank or immediately hid in a wooded area next to the plaza.

Officers Rauch and Keegan went to the men and identified themselves. The three men immediately started to run away, and Officer Rauch followed in pursuit.  He caught one of the men, James Dinsio, and while grappling with him, Dinsio's brother, Amil, a man in his 60s, came from behind and joined in.  While the three fought, one of the Dinsio brothers disarmed Officer Rauch and put the officer's gun to his head, threatening to kill him.  They pulled Rauch's coat over his head and dragged him to a culvert behind the plaza, and all three of them hid in the culvert while Officer Keegan summoned the New York State Police for assistance.  When the help arrived, the Dinsio brothers surrendered and were arrested and indicted for seven crimes, including robbery and kidnapping. 

The Dinsio brothers were tried together in June 1997 in the Rensselaer County Court.  Each had separate counsel.  The daughter of one of the brothers joined them at the defense table. She was an Ohio attorney but did not actively participate in the defense.

Many of the twelve jurors were confused about the separate charges during deliberations. They were frustrated that they could not have a copy of the indictment in the jury room. Much of the discussion centered around the East Greenbush police officers, who some called the Keystone Kops.  The jury foreman, a Black man who was a social worker, complained about having been previously stopped for "driving while Black" in East Greenbush.  The jury even sent an inquiry to the judge asking whether, in addition to delivering its verdict, the jury could also voice its criticism of the East Greenbush police department, but the judge did not permit it.

The jury announced its guilty verdict on both brothers on all counts, and the defendants were later sentenced to prison for twenty-five years.  Following the verdict, County Judge McGrath informed the jury that the brothers had recently been released from a North Carolina prison where they had served sentences for bank robbery. 

 The defendants appealed their convictions to the Appellate Division, which modified some charges.  The defendants were then resentenced to twenty years in prison.  Amil Dinsio appealed without success to the Court of Appeals and federal courts, including an unsuccessful attempt to have his conviction reviewed by the United States Supreme Court. [Google: People v Dinsio to read appellate court reviews of the legal aspects of the case.]

Until recently, I didn't know that the Dinsio brothers were among the most notorious and successful bank robbers in the United States before their East Greenbush arrest.  In his autobiography, Inside the Vault, Amil Dinsio admitted to more than one hundred bank burglaries, including the largest in U.S. history, the burglary of a bank vault in Laguna Niguel, California, in which the brothers and their team took more than eleven million dollars in cash, which they believed to be illegal bribery money belonging to President Nixon, together with large amounts of jewelry taken from safe deposit boxes.  After paying to launder the money and expenses, the team members netted approximately three million dollars each.  Most of the stolen money was recovered when the Dinsio brothers were arrested, convicted, and sentenced to twenty-year prison terms.  

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 got along probably as well as most do, 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 a 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 some professional sports teams that they both followed, goings-on in 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 his friend starting throwing pebbles at passing automobiles. Jerry said that he didn’t throw any pebbles, but he thought that he recognized the driver of one of the cars that were 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 that her son had a bad temper and never approved of his method of discipline.

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 satisfaction of the court, the juvenile is adjudicated to be 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 telephone me to say hello and thank me for representing him. He had graduated 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.