The U.S. Supreme Court in  Montejo v. Louisiana on 5/26/09 overruled a 23-year-old decision that bars police from questioning suspects without the presence of an appointed lawyer.

The court overturned  Michigan v. Jackson (1986) which held that once a suspect has asserted a right to counsel, any waiver of that right during police questioning is not valid unless the suspect initiated communication with them.

Petitioner Jesse Montejo waived his Miranda rights when police questioned him in connection with the robbery and murder of the owner of a dry cleaners.  He ultimately confessed to the crime.

At a later preliminary hearing, the judge ordered the appointment of a public defender. After another visit by detectives, Montejo wrote a letter of apology, which was introduced at his trial and challenged on appeal.

Justice Scalia wrote in the majority decision that when a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary.

No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be amenable to speaking with the police without having legal counsel present. And no reason exists to prohibit the police from inquiring.

Justice Scalia noted that three other Supreme Court decisions sufficiently protect defendants from being badgered into confessing:

• Miranda v. Arizona requires defendants to be advised of the right to a lawyer and the right against self-incrimination.
• Edwards v. Arizona  requires police interrogation to stop once a defendant invokes his right to have counsel present.
• Minnick v. Mississippi bars further police interrogation without the presence of counsel after the initial request for a lawyer.
• Under these cases, a defendant who does not want to speak to the police without counsel present need only say as much when first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.

These are the types of suppression hearings requested by the New York criminal defense attorneys:

Mapp hearing: whether the police legally seized property from you.

Huntley hearing:  whether the police acted legally when and if you made a statement to them and whether the statement was voluntarily made.

Wade hearing:  whether the police used fair methods when they had witnesses identify you as having committed the crime.

Dunaway hearing:  whether the police acted legally in arresting you.

During the suppression hearing, testimony is taken from police officers and witnesses. Your lawyer will have a chance to cross-examine the prosecution witnesses. You will also be given a chance to testify and call witnesses. If the prosecutor does not prove that the officers acted legally, or if you, through the evidence you present, prove that the police acted illegally, the judge will suppress the evidence.

If the judge suppresses the evidence, the prosecutor will not be able to introduce the evidence against you at your trial. If the prosecutor has no other evidence against you and does not intend to appeal the judge’s decision, he or she will most likely file a motion asking the judge to dismiss your case.

Buffalo, New York grand jury proceedings are secret and are not open to the public. The grand jury consists of sixteen to twenty-three people who listen to the evidence and determine whether there is enough evidence to put a criminal defendant on trial for a felony.

If they decide that there is enough evidence, they vote an indictment.

You have the right to testify before the grand jury. Your lawyer may go with you to the proceeding. However, your lawyer must remain silent during your testimony.

Your lawyer may not address the grand jury or object to the prosecutor’s questions. If you wish to speak with your lawyer before testifying, you may do so outside the grand jury room.

If you decide to testify before the grand jury, you will probably be cross-examined by the prosecutor. The prosecutor will ask any questions the grand jurors may have for you. You may ask that the grand jury hear witnesses willing to testify for you. But you are not allowed to be present in the grand jury room while they testify.

If the grand jury does not vote an indictment, you will be released from jail. If the grand jury votes an indictment, your case will be transferred from the local criminal court to Supreme Court or County Court for another arraignment. You will be formally charged with the crimes voted by the grand jury in the indictment. You must plead either guilty or not guilty. The conditions of your bail may also be reviewed and plea bargaining may take place.

These recent verdicts for commercial and residential landlord/tenant disputes cover a no-pets policy which violated Fair Housing laws, a landlord who destroyed an auto shop owner’s equipment, sexual harassment and assault, false claims of child abuse and a landlord who delayed development of a golf course.

If there is a swine flue pandemic, New York employers will play a key role in protecting employees’ health and safety as well as in limiting its impact on the economy and society. Employers will likely experience employee absences, changes in patterns of commerce and interrupted supply and delivery schedules.

Employers can  protect their employees and lessen the impact of a pandemic on society and the economy with proper planning.

New York employers should use OSHA’s free Guidance for Preparing Workplaces for an Influenza Pandemic http://www.osha.gov/Publications/OSHA3327pandemic.pdf to help identify risk levels in workplace settings and appropriate control measures that include good hygiene, cough etiquette, social distancing, the use of personal protective equipment and staying home from work when ill.

Up-to-date information and guidance is available on the http://www.pandemicflu.gov website.

A pandemic could affect as much as forty percent of the workforce during periods of peak influenza illness.  Employees could be absent because they are sick, must care for sick family members or for children if schools or day care centers are closed or are afraid to come to work, The Family Medical Leave Act (FMLA) gives employees up to 12 weeks of unpaid leave to care for themselves or a family member, regardless of how many employees are asking for time off.

Employees are eligible to take FMLA leave if they:

(a) have worked for their employer for at least 12 months;
(b) have worked for at least 1,250 hours over the previous 12 months;
(c) work at a location where at least 50 employees are employed by the employer within 75 miles.

New York employers should:

• Stockpile face masks for employees who have high exposure to the public.
• Provide flu shots and tetanus shots.
• Revise attendance and leave policies in employment manuals so that employees are not penalized for taking time off.
• Draft a disaster communications policy.

Free legal information, advice and representation for unfair treatment or denial of housing based on age, sex, sexual preference, race or ethnic origin, nationality, religion, disability or marital status is available in Buffalo and Western New York from these organizations:

Housing Opportunities Made Equal Inc. (HOME):  Investigation & counseling for victims of housing discrimination. Paralegal counseling for landlords and tenants. Information about fair housing law. Technical assistance for government, housing and service providers. Housing and human service information and referral. Housing search assistance for Section 8 participants. Research and compliance monitoring.

HOME’s mission is to assure the people of Western New York equal opportunity to live in the housing and communities of their choice through education, advocacy, the enforcement of fair housing laws and the creation of housing opportunities. www.homeny.org (716) 854-1400.

HUD Housing Counseling:  Housing, counseling services and workshops on pre-purchase, post-purchase, reverse mortgages, rental, mortgage default and financial education. www.belmontshelter.org  (716) 884-7791.

Neighborhood Legal Services:   Handicapped rights, legal advice/representation to developmentally disabled and others. Family problems-child snatching, victims of domestic violence, housing problems-landlord/tenant, housing discrimination, public, etc.

Entitlements:  Welfare, food stamps, Medicaid, SSI, utilities. PAMII - Protection Advocacy for mentally Ill individuals. Vocational rehabilitation - assistive technology issues. www.nls.org (716) 847-0650.

New York State - Division of Human Rights: Intake and investigation of notarized complaints alleging discrimination in the jurisdiction of employment, housing, public accommodations, credit, education (non-sectarian), and volunteer fire company department on the grounds of age (18 & over), race, color, national origin, sex, creed, marital status, disability, familial status (families with children), previous arrest record or conviction record, military status or sexual preference. www.dhr.state.ny.us - (716) 847-763

Western New York Law Center Inc:   Legal representation for residential home foreclosures; housing discrimination, and disability rights cases. www.wnylc.net (716) 855-0203.

The New York Zero Tolerance law applies to those under age 21 who operate a motor vehicle with a blood alcohol concentration (BAC) of .02% or more but not more than .07%.

If you are stopped by a police officer in New York for having consumed alcohol and the officer deems that you are younger than 21 and appear to have consumed alcohol, you will be temporarily detained for the purpose of taking a breathalyzer test to determine your blood alcohol level (BAC).

If you refuse to take a breath test, you will be subject to a license revocation of at least one year.

If your BAC is .02% or more, but not more than .07%, you will be charged with the traffic offense of “driving after having consumed alcohol.” You will be given a notice to appear for a hearing before an administrative law judge of the New York Department of Motor Vehicles (DMV).

If your BAC is more than .05% but not more than .07%, the police will have the option of charging you with “driving while ability is impaired by alcohol” (DWAI).

If your BAC is more than .07% but less than .08% you will be charged with the offense of “driving while ability is impaired by alcohol” (DWAI).

If your BAC of .08% or more, the charge will be “driving while intoxicated” (DWI). If you are charged with either DWI or DWAI, you will be arrested and requited to appear in criminal court.

While being charged with driving after consuming alcohol is considered a serious violation of the law, it is not designated as a crime and you cannot be sentenced  to jail.

However, at the very least you will have your New York license suspended for six months and pay a civil penalty of $125. You must pay an additional $100 fee when your license is returned.

The charge will remain on your record for three years or until you are 21, whichever is longer. You will be required to surrender  your license to the  New York DMV.

Your New York license will be returned to you at the end of the suspension period

If you have any prior alcohol-related traffic offenses on your record, your license will be revoked for one year or until you reach the age of 21, whichever is longer. You will be required to surrender your license to the New York  DMV.

At the end of the revocation period, you may apply for a permit and start the licensing procedure.

If your New York license is suspended under the zero tolerance law, and you do not have any prior alcohol-related convictions on your license, you may be eligible for a conditional license. However, in order to receive one, you must enroll in and complete an approved Driver Program.

Both the program and the conditional license carry additional costs. A conditional license will allow you to drive back and forth to work and school, but it is not the same as a full license.

For further information on New York jail time and fines for DWI, see Buffalo and WNY DWI Sentencing guidelines.

The mother executed a deed transferring her home to her son. She continued to live in the home with her son until her death, during which time she paid the real property taxes.

However, the deed was never recorded with the Onondaga, New York County Clerk. The public administrator of the mother’s estate commenced an action to set aside the deed.

An inter vivos (lifetime) gift is valid only if the donee establishes the following three elements by clear and convincing evidence: (1) intent on the part of the donor to make a present transfer of the property; (2) actual or constructive delivery of the gift to the donee; and (3) acceptance of the gift by the donee

The intent element requires an irrevocable present transfer of ownership, or title, although the donor may retain possession of the property for the remainder of his or her life.

The delivery element requires a delivery sufficient to divest the donor of dominion and control over the property, while the acceptance element is presumed when the gift is of value to the donee.

The son established that decedent intended to make a present transfer of her property to him but that she did not want the deed recorded “until things settle down,” because she was concerned that her daughters would “cause trouble” if they found out that she had given the property to him.

The son further established that he, his mother and her attorney were present when she executed the deed and related documents, that the deed was handed to him at her direction, and that he accepted it.

The New York Appellate Division, Fourth Department ruled that the son had established that an inter vivos gift had been made of the property.

The delivery of the deed to the son was not changed by the mother’s subsequent access to the deed or even her repossession of it.

Moreover, the fact that the mother continued to pay taxes on the property until her death is not inconsistent with her continued possession of the property and intention to make a present transfer of the title and ownership to defendant. The evidence established that she continued to pay the taxes on the home because she was residing there.

The U.S. Department of Labor (”DOL”) has issued new regulations interpreting the Family and Medical Leave Act (”FMLA”) for military families which went into effect January 16, 2009.

Exigency Leave:  Employees may take up to 12 weeks for qualifying exigency leave arising from an employee’s spouse, child or parent being called up to active duty from a non-regular armed forces position, such as members of the Reserves or National Guard .

Exigency leave is not available to family members of active duty military personnel. The new form for this type of leave (WH-384) can be found at the DOL website  http://www.dol.gov/esa/whd/fmla/finalrule.htm.

Leave Related to Serious Injuries or Illnesses Incurred in Military Duty:  Military Caregiver Leave provides for 26 work weeks of leave in a single 12-month period. This means that the 26 weeks of leave must be taken in a single year starting the first day leave is taken for those employees caring for family members and next of kin with serious injuries or illnesses incurred in military duty.

The definition of “next of kin” is broader than that of “family members” under FMLA and may include grandparents, aunts and uncles.

Unlike FMLA leave, an employer may not request additional medical opinions or re-certifications for Military Caregiver Leave.

A hearing was held in the Dutchess County, New York Justice Court to determine whether probable cause existed to stop the defendant and arrest him for driving while intoxicated.

A trooper testified that he observed the defendant at 3:20 am crossing the fog line (solid white line along the right edge of the road) three times.

Another trooper testified that he saw defendant’s car cross the fog line once.

Defendant testified that he was conscious of the police, was cautious about not exceeding the speed limit and never crossed the fog line.

The New York Appellate Term, Second Department has held that crossing a fog line does not constitute a violation of the New York Vehicle & Traffic Law.

The only predicate offered for the stop was that the defendant crossed the fog line, which was not a violation.

Therefore, the DWI charge was dismissed because the police had no probable cause to stop and detain the defendant.