This is my place to share some memories I have of growing up in the rural town of Nassau, Rensselaer County, New York, and later practicing law in upstate New York. Recent Posts on the sidebar show only the most recent posts, but all are visible as you scroll down the main page. The posting dates are merely to put the posts in a sequence. The posts start with my youth, then to adulthood and practicing law, as well as items relating to t Nassau.. Some images will enlarge if clicked
Monday, November 15, 2021
My First Jury Trial
My first solo jury trial took place in April 1965, in the City Court in Cohoes, an old, decaying factory town in Albany County, across the Hudson River from north Troy. Cohoes, much like the City of Albany, had long been solidly entrenched in the hands of the Democrat party. William Dawson was the political boss of Cohoes, but his organization had recently lost control of the city government in 1964 to the new Citizens Party, led by a local doctor and a group of reformers. Dawson’s leadership was then looked upon with disfavor by the Albany County Democratic organization. Although his legal expertise was title insurance, not litigation, the Citizens Party installed Frank Landry as the City Court judge.
Soon after taking control of the government, the Citizens Party leadership hit upon a plan to further reduce Dawson’s influence in Cohoes. Dawson controlled a local newspaper that was really his party’s main political communication with the voters. It was called “Newsweekly Newspapers”, published by Newsweekly Newspapers, Inc., which Dawson said was owned by him and the Democratic Party of Cohoes. It naturally was very critical of the Citizens Party and its governmental administration.
Paul G. VanBuskirk, the executive assistant to Mayor McDonald, filed a criminal complaint against Newsweekly Newspapers, Inc., charging a violation of New York General Business Law Section 330, which requires that:
“Every newspaper, magazine or other periodically printed publication published in this state, shall publish in every copy of every issue, upon the editorial page or in one of the first four pages of the publication, the full name and address of the owner, owners, proprietor or proprietors of such publication; and if said publication shall be owned or published by a corporation, then the name of the corporation and the address of its principal place of business shall be published, together with the full names and addresses of the president, secretary, and treasurer thereof; and if the said publication shall be owned or published by a partnership, limited partnership, or an unincorporated joint-stock association, then the full names and addresses of the partners, or officers and managers of said partnership, limited partnership or unincorporated joint-stock association shall be published in like manner. The representative capacities of those named shall be indicated in like manner.”
Bill Dawson was friendly with Seymour Fox, the Troy attorney who I had been working for since graduating from law school in 1963. He asked Seymour to defend his newspaper, but Seymour didn’t want to get into a political fracas, particularly one in which the defendant corporation was in clear violation of the statute. Seymour suggested that I handle the defense, and I jumped at the chance.
The prosecutor was William Gray, an Albany County Assistant District Attorney, and Richard Kohn, a law school classmate who had recently joined the District Attorney's Office. From the outset, it was clear that there was not going to be any plea bargain or compromise, and I demanded a jury trial. I had Robert Clark, the nominal president of Newsweekly Corp., file a similar criminal complaint against the Capital Newspapers, part of the Hearst Corporation, since its Albany papers, The Times Union and The Knickerbocker News, also were in clear violation of the statute. (Although the Hearst Corporation appeared to defend the complaint, that case mysteriously died before the scheduled May trial). Judge Landry did not find that Newsweekly Corp. was being selectively prosecuted, even when shown that none of the other newspapers circulated in Cohoes, including the New York Times and the Wall Street Journal, failed to comply with the letter of the law.
A six-person jury was impaneled on Monday evening, April 12, 1965, and the trial went into the late hours and then was continued the following morning. Not surprisingly, Judge Landry denied every motion and objection I made, including one that he disqualify himself as being a member of the Citizens Party. The jury returned a verdict of guilty, and Judge Landry fined Newsweekly Newspapers, Inc. $250.00 on each of the 14 counts of the complaint, for a total of $3,500.00, which was paid.
I filed an appeal in the Albany County Court but did not immediately push the appeal forward. Two years later, when Albany’s affection for the Citizens Party waned, and there was some new blood in the Cohoes Democratic Party, I submitted a brief and finalized the appeal for the now-defunct newspaper. In June 1967, Albany County Judge Martin Schenck granted my appeal and reversed the conviction on the grounds that Section 330 was unconstitutional in violation of the right of freedom of expression. He ordered the fine returned.
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Monday, November 01, 2021
Reapportionment
The first Public Defender was Thomas J. O’Connor. Tom was an older attorney who had been the Troy Police Court Judge at one time and was a very effective criminal defense attorney. He was given two part-time assistants, Jim Reilly and John Burke, both of whom had been assistant district attorneys when the office was under the control of a Republican district attorney, but who had lost their jobs when M. Andrew Dwyer, a Democrat, was elected to that office. I had become quite friendly with Tom from the time I started practicing criminal law in 1963. (When I first came to Troy Police Court, he referred to me as “the Jewish kid from Fox’s office.) During those early years, Tom was my informal mentor. After Tom was appointed Public Defender, I let it be known that I would like to join his part-time legal staff if a position became available.
Rensselaer County was governed by a Board of Supervisors, as were most upstate counties. New York’s County Law provided that the Supervisor from each town and the Supervisor from each ward in the cities in the county constituted the Board of Supervisors. All members were part-time elected officials who served two-year terms, and the majority party elected one of their members to be Chairman and appointed the Clerk of the Board. Unlike the members, the Clerk was a full-time employee who ran the day to day operation at the direction of the Chairman.
Although the Board of Supervisors was traditionally under the control of the Republican party, their majority was dwindling. The Democrats had gained strength and elected Supervisors even in traditionally Republican towns, including my family’s home town of Nassau. My uncle, Harry Honig, had been a Justice of the Peace for several years there, and subsequently was elected Supervisor. When he retired, he was followed by Earle Cooper, an attorney. Earle was defeated for re-election by Sylvester “Whitey” Currier, the first Republican to be defeated for that office since his father, Ralph Cooper, was defeated decades before. Whitey was very popular. The Curriers were an old Nassau family, and Whitey was smart and very likable. He had been a pilot during World War II, and when his P-47 fighter developed mechanical problems in the Boston area, he rode it down to a crash landing in a wooded area to keep it from falling into a populated area.
One day Tom called me into his office and said that Joe Casey, the Republican County Chairman, wanted to get Nassau back under Republican control, but the party had no candidate that he believed could defeat Whitey Currier. Joe felt that the only chance to win the office back was to run my uncle Harry against Whitey, but Harry was quite adamant that he had retired from politics, and besides, Harry liked Whitey. Tom told me that Joe had asked me to intercede with Harry and if I could persuade Harry to run and the Republicans maintained control of the Board of Supervisors, Tom could appoint me as an assistant public defender the following January, when appointments were made for two-year terms. I went to Harry, and he reluctantly agreed to be the candidate for my sake. He won the election.
On the morning of January 5, 1968, Tom presented me with a letter appointing me to the office of an assistant public defender. I brought it to the County Clerk, who swore me in, and I signed the Oath of Office book. The Troy Record photographer took a photograph of me being sworn in by the County Clerk, with Tom looking on. I went to the Public Defender’s office and filled out the usual employment forms for tax withholding, health insurance, and the retirement system. Later that afternoon I received a telephone call from Lenore Coleman, Tom’s confidential secretary. Lenore said that there was a problem, and my appointment had to be put off for a few days until the Board of Supervisors amended the budget to appropriate funds for my position. I was very disappointed, but Tom told me that it was an oversight, and the Board of Supervisors would make the appropriation at its next meeting. My oath of office that I executed that morning was covered over with another oath of office, carefully scotched tape over mine. (During January 2020, I went to the bowels of the Rensselaer County Clerk's Office and found the 1968 Oath of Office book. Ironically, my oath had been covered over with the oath of James Reilly, who later became my law office associate. The scotch tape had dried out, and when I opened the book the two oaths were uncovered. )
The Board of Supervisors met a few days later but didn’t make the appropriation. Tom was very upset and said that he was told that I should take John Burke’s place. We both agreed that it wouldn’t be proper for me to replace John, and that had not been part of the arrangement. Tom reported that back to the Republican hierarchy and said that he was told that the appropriation would be made in February. Before the February meeting, however, Seymour Fox, the attorney with whom I was associated, told me that his friend, Dr. Carl DeLucia, told him that I was not going to get the job. Dr. DeLucia was a close friend of Dean Taylor, a former Republican County Chairman and Representative in Congress. The reason, I was told, was that I had incurred the wrath of Dr. Richard Drumm, the Schodack Supervisor. We moved to Schodack in 1964. At first, Nedda and I became active in the local Republican organization. I even incorporated the Schodack Republican Club, Inc. in 1966, and Nedda and I were charter members. The problem began when I was retained to represent an elderly man who lived in a mobile home on a lot that he owned. The town board passed an ordinance that required mobile homeowners to get a special permit and pay a fee in addition to real property taxes. The town building inspector charged my client with a violation of the ordinance for not having a permit, a criminal offense. I demanded a jury trial, and the jury convicted him, following the justice of the peace’s directions. The town board was upset, because a jury trial was expensive, and I said that I would represent anyone else that they prosecuted for a similar offense without fee, and would demand a jury trial in each case. The town stopped enforcing the ordinance by criminal prosecution, although most mobile homeowners complied and paid the fee anyway. The Schodack Republicans were also very upset with me for representing two party members who challenged the party regulars in the 1967 primary election, even though my clients failed to win the primary.
The practice was that the County Republican Chairman would ask for the approval of a proposed appointee by the appointee’s local Republican chairman. In my case, the approval was not forthcoming because of my defense of mobile homeowners and for representing the primary challengers.
I was angered and frustrated, as I had considered the appointment to be a sure thing since Harry agreed to run, and there were to have been no other strings attached. I knew that I had no legal recourse, although I probably could have salvaged the position had I gone hat in hand to Dr. Drumm and said that I would no longer defend trailer owners charged with violation of the town ordinance, and generally fall into line with the town Republicans.
All New York appellate court decisions and lower court decisions of interest were published by the official court reporter. To subscribers of the hardcover books, the official reporter would mail the “Advance Sheets”, the softcover advance copies of the decisions. These came out two or three times a month, and it had been my habit to bring these home to read as a method of keeping current on New York law. I would usually skim all of the cases, even in areas of the law in which I had little interest. I recalled having read a decision from one of the Long Island counties in which the subject matter involved the equal representation of voters in local legislative bodies. I believe that it was called Greenberg v. Board of Supervisors. That New York case was based upon a United States Supreme Court decision, Reynolds v Sims, which mandated “one man, one vote” for legislative representation. From my brief reading of that decision, I knew that Rensselaer County Board of Supervisors, like most county legislative bodies in New York, did not measure up to the one man, one vote standard, as it was created under Section 150 of the County Law which prescribed that the board consisted of the Town Supervisor of each town in the county, plus the Supervisors elected in each ward of the cities.
I realized that I could have my revenge! There were no form books to guide me in the preparation of documents for the litigation, so I started going to the New York State Law Library, which maintained a copy of every appellate court record on appeal. A record on appeal consists of all of the legal documents and lower court decisions in each case. I photocopied the record on appeal of the Greenberg case and a couple of other cases that had followed it and made my own manual. I needed a plaintiff; someone with standing to bring the lawsuit against the Board of Supervisors. The ideal plaintiff was my wife, Nedda. The town of Schodack had a large population compared to the very rural towns in the county, such as Stephentown, Grafton, and Petersburg, but each of the towns had one elected representative on the Board of Supervisors. I told no one of my planned litigation, hoping that the politicians would yet honor the commitment that I had been given. There was a little movement; although Tom O’Connor continued in his efforts to get the additional appropriation to hire me.
For a couple of weeks, I spent every evening typing pleadings. Finally, just before the March meeting of the Board of Supervisors, I completed the summons, notice of petition, complaint, and petition, entitled:
STATE OF NEW YORK
SUPREME COURT COUNTY OF RENSSELAER
----------------------------------------------------------------------------------
NEDDA R. HONIG, on behalf of herself and all other persons
similarly situated,
Plaintiff - Petitioner
-against-
THE BOARD OF SUPERVISORS OF RENSSELAER COUNTY
and THE STATE OF NEW YORK,
Defendants - Respondents.
------------------------------------------------------------------------------------
Nedda signed the complaint/petition, and I notarized her signature and made multiple copies of the pleadings. In those days, it was not necessary to file any papers with the court or the clerk before starting an action. The litigation sought a declaration by the New York Supreme Court that the Board of Supervisors was improperly apportioned; that under County Law Section 150, insofar as it mandated the structure of the Board of Supervisors, was unconstitutional, and directing a reapportionment of the Board of Supervisors consistent with the “one man, one vote” precedents.
On my 30th birthday, March 12, 1968, I went to see Jack Manning, the full-time Clerk to the Board of Supervisors. I asked him if there was a resolution on the agenda for that evening’s monthly meeting to appropriate funds to enable the Public Defender to hire an additional part-time assistant. Jack was a former Troy police officer who had been appointed Clerk after his retirement from the police force. He was a decent guy and seemed genuinely embarrassed to tell me that the resolution was not on. I handed Jack the pleadings and told him that it was a present from me to the Board.
The next morning the clock radio woke us up, as usual, to the 6 a.m. news on WGY. The news broadcast started with Dick Beech announcing that “a Schodack housewife has sued the Rensselaer County Board of Supervisors complaining that she is not properly represented...”
The result was interesting to observe. At first, the politicians considered the lawsuit to be just an irritant, as local governments frequently are sued by residents whose claims are dismissed as meritless. It did not take long, however, before all realized that my lawsuit created a new dynamic in Rensselaer County politics. The Republicans, who for many years maintained control of the Board of Supervisors, realized their vulnerability; the Democrats, who had gained some vitality by electing some candidates to county offices in the Goldwater year, sensed an opportunity.
The initial court appearance was before T. Paul Kane, a Supreme Court justice from Schoharie County, who had been assigned to preside in Rensselaer County for the month. Judge Kane, a former district attorney, was a Republican. He was a tall man with silver hair and an even demeanor. The Board of Supervisors was represented by the County Attorney, James T. Ronan. Jim, like all Rensselaer County Attorneys until 1984, held the office on a part-time basis. He was a member of Wager, Taylor, Howd, and Brearton, a prominent Troy law firm, one of whose members, Dean Taylor, was the local representative to Congress, and a former Republican County Chairman. Although the State of New York was officially represented by its Attorney General, Louis Lefkowitz, a Republican, the Assistant Attorney General assigned to the matter was Robert W. Imrie, an older attorney who represented that office in all prior reapportionment cases, and who was generally considered to be the most knowledgeable reapportionment attorney in the state. Mr. Imrie’s legal position was consistent with mine, which he made clear to Judge Kane during the oral argument. The Democrats intervened in the lawsuit. The minority Democratic leader, Joseph Manupella, was represented by Thomas Kenny, and while their position favored reapportionment because they could not get control under the existing law, they always proposed reapportionment plans that would be most helpful to their candidates.
Once it was clear to the Republicans that there would be reapportionment, they sought to comply by offering a plan of weighted voting. Under their plan, the Board of Supervisors would continue, but each Supervisor would have the number of votes corresponding to the number of voters in their district. They hired an expert from Columbia University to prepare an analysis of the weighted voting plan for the Court, but Judge Kane rejected the plan and directed the Board of Supervisors to devise a plan for the creation of a County Legislature to be elected in the 1969 election.
Several plans were drawn up and submitted to the Court, which finally selected a 15 single-member district plan that I had submitted. Judge Kane’s selection of the plan was upheld by the Appellate Division as an interim plan only. The Republicans were furious since the town Supervisors wanted to continue as members of the County legislative body as well as being the head of their town governments. They had the County Attorney prepare a local law that would permit the Supervisors to also be members of the County Legislature, the so-called “two hats” law. I told Jim Ronan that if they passed the law, I would immediately bring another lawsuit to declare it illegal as being in violation of the Public Officer’s Law. I believe that Jim got an oral opinion from Robert Imrie that if any Supervisor were also elected to the County Legislature, he might forfeit the first office when he took the oath of office for the second one, and Jim convinced the Board of Supervisors to give up on that plan.
The Democrats were elated. County Court Judge Timothy Fogarty called me to his chambers and asked if I would run for the County Legislature from the new district that included Schodack as the candidate of the Democratic party. I told him that I would not, as I was a Republican, albeit a disenchanted one. A few days later, he brought me back to convey that the Democratic County Chairman, Edward McDonough, said that if I wanted to run as an independent candidate, the party would fund my campaign. Again, I declined.
The Democrats won control of the first County Legislature. Before the election, Joseph Casey, the Republican County Chairman, was indicted following a lengthy investigation into corruption by the State Commission of Investigation. The Republican party was in disarray and turned to Raymond Siek in 1970 to take over the county committee and cleanse its image. Ray was the manager of Ford Motor Company’s Green Island factory. He had no background in politics, but he had an unblemished personal reputation. He accepted the job with the understanding that he was going to be the absolute boss. He enlisted his top aide at the Ford plant, Nicholas Pinchuk, to work with him, and for several months Nick spent much more time working for the Rensselaer County Republican Committee than he did for Ford.
A few weeks after Ray took over the party, his secretary telephoned me and asked if I would meet him and Nick for lunch at the Troy Holiday Inn. (The Holiday Inn was also the location of the Republican Party Headquarters). I agreed, and he told me his plan to clean up the party. He asked me to help by writing new by-laws for the organization, and when I agreed he installed me as vice chairman for legal affairs. As a token of appreciation, he provided me what was then a party chairman’s “perk”, namely my MIH vanity license plate, which I kept until I moved to Florida in 2003. (It was not until several years later that vanity plates became available for purchase by the public in New York).
With control of the new County Legislature, the Democrats drafted a new legislative reapportionment plan based on the 1970 census and required by the Court. At the request of Ray, I drew up a couple of different plans which favored the Republicans. The matter came on before Judge Kane again, and he disallowed the plan submitted by the Democratic County Legislature and ordered one of my plans to be used for the 1971 election. The Democratic County Attorney, Bill Jubic, appealed to the Appellate Division of the Supreme Court, which affirmed Judge Kane's decision. Mr. Jubic then appealed to the Court of Appeals, the highest court in New York. This was my first oral argument in the Court of Appeals. The evening before the oral argument, Nedda and I took down 2 roll-up window shades from our home and pasted "exploded" views of the different plans on the shades, which rolled up like scrolls. I unveiled them before the Court, whose members seemed both amused but impressed. The Court of Appeals affirmed the lower court's decision. The Republicans, reinvigorated by Ray Siek and the new legislative districts, took back the County Legislature in the November 1971 election by a slim 1-member plurality, and I was appointed County Attorney, a part-time office I held until the mid-1980s when I resigned because of the press of my private practice.
Friday, October 01, 2021
Assistant District Attorney
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.
Wednesday, September 01, 2021
(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.
Sunday, August 01, 2021
Infant Settlements
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.
Thursday, July 01, 2021
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.
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 |
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.
Tuesday, June 01, 2021
Jury Duty
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.