Assistant District Attorney

I had a short career as an assistant district attorney in Rensselaer County. In August 1971, Con G. Cholakis, the district attorney who had been my adversary in a series of criminal cases and appeals, invited me to join his part-time staff of assistant district attorneys. I readily accepted, as I personally liked “Gus”, and I was growing weary of representing low-lives, who usually didn’t show any appreciation if I obtained a favorable result for them, and who usually were guilty. Also, I wanted to experience what it was like to be on the “other side of the fence”. It was an easy and enjoyable transition from a criminal defense attorney to a prosecutor. There were great resources available to the prosecutors. The police agency that arrested a criminal defendant was obligated to do any follow-up investigation, and the office also enjoyed the services of Jack Dwyer and Joe Burns, two experienced police officers who were employed full-time as investigators. Additionally, the prosecutor could choose to not prosecute a weak case, or to plea bargain down a questionable case.

The assistants would rotate handling cases. We were all part-time employees with private law practices. Troy Police Court, which seemed to provide the bulk of cases handled by the office, usually took up the mornings for one or two weeks each month, depending upon the rotation. The same assistant would usually handle subsequent felony hearings for defendants arrested during his rotation, and present the case to a grand jury. We would also handle town court cases one or two evenings a week.

I was very familiar with the workings of the district attorney’s office. I took a summer job in that office between my second and third years of law school. The summer jobs in county agencies were usually given to the high school or undergraduate college students who were children of political committeemen of the party that controlled the agency, but I was able to get the job because my uncle, Harry Honig, was the Nassau Town Supervisor. I had just completed a criminal law elective which was taught by John T. Casey, then the District Attorney and an adjunct professor at Albany Law School. I was not expected to do much more than observe, as summer help wasn’t expected to do much work. However, I usually went to Troy Police Court each morning with one of the three assistants, Jim Reilly, Pierce “Bud” Russell, or John Burke, and they utilized me to do research and draft court documents, thus freeing more of their time for their private practice. I was given access to all of the open and closed files, and sometimes found closed cases involving people I knew, including a criminal prosecution involving the sexual activity of a couple of high school classmates. There were no trials to watch because the Supreme Court and the County Court did not hold trial terms during the summer months. I was a good typist (out of necessity because I have terrible handwriting), and Kay James, Mr. Casey’s confidential secretary, frequently asked me to write letters reducing motor vehicle charges in town courts “in the interest of justice”.

A couple of months after I became an assistant, a book store opened on Broadway in Troy. Soon complaints rolled into the police that the store was selling pornography. This was in the days of Ozzie and Harriet reruns, and the citizenry was outraged that such materials should be sold at all, particularly across from the Post Office and within a couple of blocks of two churches. Gus asked me to look into the situation, so one morning I enlisted Jack and Joe and we went to the book store and looked at the merchandise. Although some of the magazines were of the Playboy genre, there were a lot of magazines and 8 mm movies with suggestive covers that probably would have shocked Ozzie and caused Harriet to faint. I decided that there was sufficient evidence for a prosecution. Jack and Joe locked the door and announced that they were police officers and were arresting the sales clerk for the sale of pornography. At the time there were a couple of patrons in the store who panicked at finding themselves locked into the store where an arrest for pornography was taking place. Jack and Joe took their names and let them out of the store. We filled several boxes with the most pornographic magazines that we could find, as well as the movies that had the most suggestive titles, and brought them back to the office. The clerk, a young man who was merely an employee, was charged in Troy Police Court with the sale of pornography.

We learned that the store was actually leased by a Massachusetts corporation, and I received a telephone call from its attorney who told me that the corporation had several such stores in New England and the Troy store was it's first in New York. He told me that “accommodations” could be made if the prosecution was dropped, a suggestion that I didn’t care for. I told him that he had a serious problem because the Massachusetts corporation hadn’t filed the necessary papers with the New York Secretary of State to conduct business in New York, something which he said must have been overlooked, and which he promised to correct.

When the clerk’s case came on for a hearing in Troy Police Court, he was represented by a prominent local attorney hired by the corporation. The attorney gave an impassioned statement that it was wrong to criminally prosecute this young man, who was merely trying to earn a living selling what he had been told was perfectly legal merchandise. I told the court that I agreed, and went on the record dismissing the charge and granting him immunity from prosecution. The attorney’s pride at having convinced me to drop the charges against his client faded away when Jack immediately handed the clerk a subpoena to appear before the grand jury the next day. Having immunity, the clerk had to testify, and the grand jury handed up a sealed indictment charging the Massachusetts corporation with the pornography crime. By then the corporation had filed its certificate to do business in New York, a condition of which required the corporation to agree to the jurisdiction of New York courts for acts committed in the state, and appointed the Secretary of State as the corporation’s agent to receive and forward legal process. The indictment was thus served.

The Massachusetts corporation did not roll over. It immediately commenced a lawsuit against Gus, me, and the County of Rensselaer in the United States District Court for the Northern District of New York to enjoin the criminal prosecution as a violation of free speech, and for damages. The first appearance came on in the federal court in Albany before Judge Foley, a resident of Troy. The corporation’s attorney made a very eloquent presentation, but Judge Foley protested that he didn’t know what was or was not pornography, and refused to look at the several examples I tried to hand up for his inspection.

After some conferences with the corporation’s local attorney, a compromise of sorts was reached. The corporation withdrew its lawsuit, closed the book store with an understanding that it would not return to Rensselaer County. The corporation pleaded guilty to a reduced charge and paid a fine.

One morning I returned to the District Attorney’s office just before noon to drop off the morning's Troy Police Court files. It had been a busy session. I was eager to get back to my private office to check my calls and go out for lunch with Jim. When I walked in, Tess, Gus’s confidential secretary, told me that Gus wanted me to cover for him at a convocation of mental health professionals being held at the Veteran’s Administration Hospital in Albany. Gus was scheduled to be a speaker at the one o’clock session to give a prosecutor’s viewpoint on suicide prevention and other legal mental health issues. Unfortunately, Gus was tied up in a trial in County Court and couldn’t break free to fulfill the commitment.

As I drove to Albany I thought about what I could say about the legal aspects of suicide prevention to a group of psychiatrists and psychologists. Mentally I pieced together a brief talk that centered around one method once used in the United Kingdom to discourage suicide: all property owned by the person committing suicide would be seized by the Crown, the thought being that no one would want to financially punish his family by impoverishing them by his suicide.

I arrived at the VA Hospital and was ushered into the auditorium and onto the stage just as the group returned from lunch for the afternoon session. Gus was one of three scheduled speakers, the others being a minister and a New York State Police senior officer. The minister was up first, but he announced that he wanted to give his time to two other men that he had brought along. He introduced two young men, who held hands and spoke about how they and other gay men frequently thought about suicide because they were continually harassed, particularly when being together in Washington Park. I sat there thinking, “I am missing lunch for this crap?”

The officer was up next, and to my dismay, he gave practically the same talk that I had been planning. (I later learned that he had attended, but not graduated from Albany Law School, and learned the same history of suicide from Dean Clements, who taught criminal law to first-year students.)

Suddenly, it was my turn, and I had no idea what to talk about when I was introduced. I decided to talk about a young man whose prosecution I had been handling in Troy Police Court. He was on suicide watch at the Rensselaer County Jail. He originally was arrested for setting fire to some street trash. A psychiatric examination was requested by his assigned counsel, Thomas O’Connor, Sr., and Judge Fogarty reported that Dr. Morgenstern, the director of the county’s Mental Health Board had found him to be “sound as a dollar”. He was released on bail but was soon rearrested while walking nude up the center of Hutton Street, telling the arresting police that God had instructed him to show people what a real man looked like. After this arrest, a formal two-physician examination was ordered. The result was as follows:



I then spoke about how the legal profession viewed (at least in my view) psychiatrists. I said that lawyers had little regard for psychiatrists as witnesses as they would usually find whatever results were needed by the employing attorneys. As an example, I mentioned the case of a fourteen-year-old boy charged with juvenile delinquency who I represented as his law guardian in Family Court a couple of years previously. The boy admitted to shooting his father in the head with the father’s handgun, and the issue was what the disposition should be. The County Attorney (which prosecutes juveniles in Family Court) produced a psychiatrist who testified that the boy was dangerous and should be confined. I produced a psychiatrist who testified that the only person ever in danger by the boy was his father, and since his father was dead, there was no medical reason to confine him. [The boy was placed in the custody of his paternal grandmother.] I went on to mention that our County’s Mental Health Director was routinely referred to as “Dr. Foreskin” by Judge Fogarty as well as many defense counsel and prosecutors who routinely practiced in Troy Police Court. That statement brought murmurs from the audience.

Later that afternoon Tess telephoned and asked me to come over to the District Attorney’s office. When I got there she told me that Gus was getting repeated calls from Dr. Morgenstern, who had received reports about what I had said from some of his staff who had attended the convocation. Gus was still in court, and Tess was worried about what to tell him. When Gus came in and I told him what happened, he laughed and said that he would “calm Foreskin down.”

A short time later I was drafted by the incoming Republican-dominated County Legislature to be County Attorney. As such, I became the attorney for all county officers, including Gus and Dr. Morgenstern. Gus went on to become Rensselaer County Judge, New York Supreme Court Justice, and United States District Court Judge. Dr. Morgenstern retired to Palm Springs in the 1980s.

(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’s 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 are different for a child. Under the New York civil procedure, court approval is necessary for the settlement of 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. If the infant is the claimant, however, the fairness of the claim 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 prior to the commencement of a lawsuit, the application could be made to any judge of a court that would have both territorial jurisdiction of a lawsuit brought on the child’s behalf, and monetary jurisdiction for the amount of the settlement.

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 best interests of the child 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, and 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 shown by petition.

Different judges took vastly different approaches to their review of infant settlements. At one end of the spectrum was Troy City Court Judge Matthew M. Dunne. 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 prior to 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, in view of the facts of the claim. The child’s parents would beam, as 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 very 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. In the presence of the infant and parents, he read every word of the documents. 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 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 so obvious to him.

While annoying, it was not really too much of a problem to wind up with an infant settlement order that was 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, and a conformed or photocopy of the order was sent to the insurance company or the other party’s attorney who was paying the settlement, and they were used to receiving Judge Pitt’s marked up orders. It was another matter when Judge Pitt signed a judgment of divorce or annulment, however. 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 prior to 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 judgment of divorce signed by Judge Pitt that had not 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, and a few days later 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 as the result of 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 effected 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 great, 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 do not work out for all clients in many situations for a variety of reasons. Some people just do not feel comfortable going before a judge by themselves, or feel that the issue is too complicated for them 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 money judgment the client is entitled to, 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 edge 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 principal. In the latter years of my practice, I used this personal example of how involved and expensive pursuing a modest claim in court be.

Soon after building a new home in the early 1990s, my wife and I employed an interior decorator, Richard Seiden, to help us with furnishing 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 that we use area rugs in some places. The first area rug needed was a 8 x 8 square rug 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 at a cost of $1,996.42 and employed Mr. Cohen’s company to fabricate it for an agreed price of $1,400.00.

During May 1994, two workmen came to the house to make a template of 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 of the rug 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 that he wanted us to buy more materials to piece on the rug, a very unsatisfactory solution. In addition, he wanted to be paid before doing anything further. After he stopped taking Richard’s calls and didn’t respond to my letters, by November 1994, 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 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. What I didn’t know was 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 arbitration. We spent the better part of a day before the arbitrator, 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 arbitrator directed that Mr. Cohen remake the rug, but did not make any monetary award to either party. I asked the arbitrator how I could enforce her decision if the remade rug was not satisfactory, and she replied that she knew of 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 arbitration. I testified by asking myself questions and answering them and acted as attorney for the plaintiffs 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 was unable to reach a decision without seeing the rug and furniture, and adjourned the case to a future date at our home. Judge Dwyer, together with a court clerk and stenographer, came to the house. Mr. Cohen and his workmen brought the rug back and put the furniture on it, adjusting it as best as they could 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 his decision finding 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 deposits the full 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, and a date for oral argument was set. By this time I was so disgusted with the time that this case had taken, I submitted a reply brief of a cover sheet and one page that basically said that the cases cited by Ms. Hiller were irrelevant. I notified the clerk that I wasn’t going to 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 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 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 on that parcel.

       DiLallo decided not to build and sold his parcel to LaPorte.  During early 2011, prior to 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 having its official address in the Canary Islands, Spain during July. The deed to Roundabout Resources showed its address as being in Fairbanks, Alaska.  I wrote to that address and received a letter back 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 it 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 New York Supreme Court to compel the execution and delivery of the reconveyance deed.  That was in 2012.  Mr. Litz retained a local 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, and Roustabout stood firm in its position that it was not required to do anything absent planning board approval.

       During the course of the litigation, the case came on before a trial court judge on three different occasions, each time 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.

       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 make the sale of it for anything other than a fraction of its original value unlikely.

       I then owned the 3.5+ acre parcel and I offered to donate it to a conservation not-for-profit organization in Rensselaer County, but the donation was refused on the basis that 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 truly understand the controlling legal issues.

       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.

File Revised January 17, 2022

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.  In total, 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 did make some minor exceptions, and also gave those summoned 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 just telling the judge quietly that they couldn’t sit for a long period of time, and the male judges never inquired 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 also been the Count Attorney for 13 years.  To my surprise, neither attorney exercised their right to a peremptory challenge and 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 took place 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 drug store because a store employee had complained that the previous evening a black man had entered the drug store 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 of whom were very interested in the experience and some of whom were 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 sometimes we were ordered back to the jury room in midst of testimony.  As was the rule at the time, we were not permitted to take any notes and were not even permitted to have a copy of the written criminal indictment.  Jurors were required to just rely on their memories of the testimony and the judge’s charge when we were sent to deliberate.  For some reason, 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 did some more research 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.  This is what I learned from speaking with him, doing research in old newspapers, and also reading a book written by __________, 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 that 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 drug store, they observed a van with Ohio license plates drive into the plaza, near the drug store, next to a branch of the Albany Saving Bank.  Three men exited the car carrying a canvas bag, although there is 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 she did not actively participate in the defense.

During deliberations, many of the twelve jurors were confused about the separate charges. They were frustrated that they were not permitted to 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 verdict of guilty of both brothers on all counts, and the defendants were, at a later date, sentenced to prison for twenty-five years.  Following the verdict, County Judge McGrath informed the jury that the brothers recently had 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 of the charges.  The defendants were then resentenced to twenty years in prison.  Amil Dinsio appealed without success to the Court of Appeals and to 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 a variety of 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 to obtain 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 has the power to 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 is not entitled to 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, any one 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, there were perhaps two dozen people 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 by a former marriage, who were welfare recipients.  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 plea of guilty or not guilty, 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 that 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, and 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 that 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 that 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. For a time he flirted with fly fishing, 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 to show off the buck that was 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 trouts’ 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 did the trout. Although many of the trout fishermen had success 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 that soda was delivered in during 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” in which trout would likely be feeding 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 go back for some more. On the weekends, when a lot of trout fishermen came into his tavern after fishing, he took a particular delight in listening to their tales and then bringing out a platter of trout that 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, and that gave 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 was not considered sporting by most of the trout fishermen, and suckers were thought to be an 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 own 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 treble hooks 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 a 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, when caught from the cold March or early April waters, were delicious. 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 both loved to eat out-of-season walleyed pike and to outwit the game wardens. He knew that his car was always a candidate for a search, but he figured out how to smuggle the pike past the game wardens. Our family car for several years was a green 1947 Buick Roadmaster, a large sedan. If he hooked a walleyed pike and there was no game warden or other fisherman close by, 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 came back empty-handed and didn’t try it again. He also went ice fishing on Tsatsawassa Lake a couple of times, but also 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 was blowing and it was less than ten degrees. We sat in our cars, watching the tip-ups that 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 back yard when a game warden approached and asked to see his license. When he was unable to 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 was aware that there was some exemption from the licensing laws for property owners fishing on their own land, although 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 probably had never before 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 again volunteer my services.