FORMER CHEMUNG COUNTY ADA REFLECTS ON NEW YORK’S YOUTHFUL OFFENDER LAWS

Posted on July 12, 2010 by Christina Sonsire

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I started my legal career at the Chemung County District Attorney’s Office where I prosecuted crimes against women and children, (and just happened meet my wonderful hubby).

Today I received an inquiry from WETM’s Law Talk regarding youthful offender adjudication. The inquiry read:

I am curious about my Youth Offender status. I made a stupid mistake and got arrested..small misdemeanor charge, nothing serious…anyways I spent a couple of hours in jail and went to court the next morning. Since it was my first offense I was put as a Youth Offender and they said it would not be put on my record or “replacing an actual conviction” if I stay out of trouble of course for certain period of time. Now I called the courthouse and was told my record is “clean” and will remain clean until for that period of time until they throw it out when the time comes. I also called the Sheriff’s office where I was arrested and they said my arrest record along with the court record is sealed and will be thrown out when I finish my unwatched probation.

I had a background check done on me and nothing shows up…and I was also told that even though I was fingerprinted they will not send my fingerprints to the FBI because again my record is still considered clean. I understand I can still have this put on my record if I mess up.

I just want verify if this is the case..I don’t want it sent up to the FBI and I want to know what’s your say on this. Is this basically a 2nd chance for me not to mess up? How certain is it that they will throw it out if I complete my probation? Is there a certain law that applies with Youth Offenders?

This gave me a good chance to wade through the cobwebs in my noggin and think about Criminal Law for a few minutes. I responded:

You are correct. Unless you have something unrelated to this on your record, your record is clean.

New York State Law essentially allows young people under 18 who are charged with a misdemeanor a free pass the first time they get into trouble. In other words, the misdemeanor conviction for a person age 18 or younger is replaced with “Youthful Offender Status” and the person’s record remains clear.

The law makes the replacement of a misdemeanor conviction with YO mandatory (called “mandatory YO”) for all people under 18 if that person has not been convicted (i.e. has not received YO in the past), though it may not apply to some misdemeanor sex crimes. I am not sure. A judge generally has discretion to grant YO (called “discretionary YO”) to any person under 18 regardless of the person’s past criminal history, though most judges do so very rarely.

My guess is you plead guilty to the misdemeanor and were granted mandatory YO and a conditional discharge or probation, meaning if you stay out of trouble for one year from the time you plead guilty the court will lose jurisdiction to resentence you. If you get into trouble, the judge can bring you back into court and impose a greater sentence (jail, probation, etc), but, with respect to this charge, you should always be mandatory YO.

The bottom line is if what you say is true, your record is squeaky clean and you should not have any problems. Keep in mind most background checks ask if you have ever been “convicted” of a crime. The answer for you is no – YO is NOT a conviction. But, be careful of the wording in the background check. It may ask if you have ever been “arrested”, in which case you would have to say yes. Continue reading →

Personal Injury Lawyer Offers Advice for Success in Small Claims Court

Posted on June 17, 2010 by Jim Reed

I was recently contacted by e-mail for some legal advice by a reader of the NY Injury Law Blog. This person had gone over some of my posts, particularly “The “People’s Court”– NY Small Claims Court.”

I am going keep this person’s identity confidential, but I want to share my response because I believe this advice will be useful to other readers.

The person who contacted me had been the victim of an assault. The assailant had pled guilty and awaits sentencing. The victim had a permanent scar from the assault and this damage was the source of the question to me. As a NY personal injury attorney, could I advise:

1. How the assault victim should act and speak when before the judge.

2. What amount of compensation might be expected for a scar?

3. When would the compensation decision be made and is there a process to collect claims won in Small

Claims Court?

Here is the advice that I offered:

1. Go to court prepared and organized. Have an outline of how you are going to explain what happened to the judge. Take some good pictures of your scar and print them out as 8-inch by 10-inch images so you can give them to the judge.

Go to the Court Clerk’s office and get a copy of the Certificate of Conviction showing the guilty plea. If you have any witnesses to the assault, bring them with you and have them prepared to tell the judge how you were assaulted.

Stay calm and be polite to the judge (say “Yes, sir,” and “No, sir,” etc.).

2. Scars are tough to value and there is no single website where you can get a precise idea of value.

However, with that said, don’t sweat it because the decision about how much your scar is worth is up to the judge anyway. In order to convince the judge to give you the highest amount possible, you need to be prepared to tell the judge in a calm, honest way about the many different ways in which the scar bothers you both emotionally and physically.

Tell your story with as much heart as you can, but be honest and be careful to not come off as a total whiner.

3. In Small Claims Court, the judge makes the decision. Usually he or she makes it that day, but he or she can “reserve decision” to secure more time think about the ruling.

There is a process to collect, and you can read about it in the informational booklet available at Small Claims Court.

I hope this advice helps the reader who contacted me, as well as anyone else anticipating a day in Small Claims Court.

I enjoy working on the NY Personal Injury Law Blog and helping readers make sense of some very complicated and scary legal issues. Please feel free to contact me with questions – I’m happy to help and explain what you need to know.

Thanks for reading,

Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com
E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

NYS Trial Lawyers Association President Comments on Toyota, Tort Reform and the Courts

Posted on March 17, 2010 by Adam Gee

Richard Binko, Esq., a lawyer from Cheektowaga, NY and the current President of the NYS Trial Lawyers Association, wrote a commentary piece that was published in the Syracuse Post Standard on March 15, 2010. The online version of that article can be found here. I felt the piece deserved an even broader audience, so we are including it here as well.

“The police in Auburn want to know what’s in Toyota’s black boxes — or at least the one in the 2010 Camry that killed Colleen Trousdale when it ran wild and slammed into her car the day after Thanksgiving. But Toyota isn’t telling.

The box, called an “event data recorder,” is similar to those in airplanes, but it locks up the data in a system so secret that federal investigators, and even Toyota itself, say they cannot yet decode it.

The black box is only the latest episode in the mystery of the runaway Toyotas. Despite a public uproar, no one has determined what caused so many to accelerate uncontrollably, killing and maiming dozens of people around the country. Federal regulators were satisfied with Toyota’s limited recalls, even when they clearly didn’t resolve the problems.

So, in this era of deregulation and rising corporate influence, victims are turning to the one branch of government that isn’t compromised: the courts. Here, they hope, they can force Toyota to grant access to its black-box data and the records of the last awful moments in the company’s crashing cars.

These are not litigious opportunists. They are victims. And our civil justice system, older than the country itself, is designed to find the causes of injury inflicted on the unsuspecting. In the courts, victims of countless hazardous products — Chevrolet Corvairs and Ford Pintos, toxic drugs, cancer-causing asbestos, defective baby seats and cribs — have found both justice and answers.

As for Toyota, consider the record so far. The company insists that faulty floor mats and pedals are to blame, and in the face of evidence that the acceleration problem is not just mechanical but electronic, Toyota is sticking to its story.

Congressional committees elicited very few answers in their recent hearings. And the auto industry’s chief regulator, the National Highway Traffic Safety Administration, is only slowly awakening from eight years of industry-friendly torpor.

NHTSA turned away Toyota owners who complained, citing a “need to allocate and prioritize NHTSA’s limited resources,” according to the agency’s own documents. And not once in six years did the agency use its subpoena power to get information from the company.

At the same time, Toyota, like many regulated manufacturers, hired away its regulators. Two former NHTSA officials “managed” federal investigations and recalls for Toyota, which boasted at one point that their efforts saved the company $100 million.

The agency may or may not uncover the secrets in Toyota’s black boxes. But the courts can and will. And the result will be an enormous correction for individual victims and, more importantly, for all Americans. The civil justice system is designed not to punish, but to find the facts, inform the public and provide incentives for manufacturers to police themselves.

Champions of “tort reform” would cripple the system even as manufacturing becomes more complex and government more compromised. Let’s not go there.”

Attorney Binko makes several excellent points. The NHTSA, the supposed watchdog of the car companies, has been asleep at the switch for years and has no real teeth. These huge multinational car companies don’t give a flip about you or me or our families. The only place you can hurt them is in the pocketbook. The court systems of this country are the only place the average person can get justice from companies like these, the only place where the average Joes of the world stand on equal footing with the Toyotas of the world. The next time someone mentions “tort reform” like its a good thing, think where you will go to obtain justice if it is your family that gets wiped out by a dangerous product that no one cared enough about to fix.

Thanks for reading,

_______________________________
Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

New York Accident Lawyer: Non Party Witnesses NOT Entitled to Counsel At Deposition

Posted on March 10, 2010 by Adam Gee

As a Plaintiff’s Attorney who conducts depositions on a regular basis, one of the more frustrating issues I encounter is the non-party witness (NPW) who is represented by counsel. Sometimes the NPW brings in their own outside counsel to represent them. More commonly, the NPW has some loose affiliation with the interests of the Defendants in the case, and defense counsel tries to claim that they are also representing the NPW. Defense counsel then obstructs objects and delays, hoping to prevent me from obtaining damaging information from the NPW. These kinds of tactics usually end up in the deposition being adjourned, or a call to the judge to determine the extent to which the defense attorney will be allowed to participate, with wildly varying decisions froom the judges who have addressed the issue.

Thankfully, the Appellate Division has finally ruled on the issue. In Thompson v. Mather, the NYS Appellate Division, Fourth Department recently ruled that while an NPW is certainly entitled to whatever counsel they want, the NPW’s attorney IS NOT entitled to participate in the deposition. So they can’t object or obstruct or delay or do any of the many other things that slow, and sometimes stop a deposition dead in its tracks.

This is a boon for not just plaintiffs attorneys, but for every attorney who handles depositions. The trial judges who have to field phone calls from attorneys complaining of these tactics will be happy to hear of this decision as well. Many thanks to our good friend Eric Turkewitz, who wrote about the topic here. It seems that the scales of justice may be tipping toward common sense!

Thanks for reading,

_______________________________
Adam M. Gee, Esq.

NY and PA Personal Injury and Malpractice Attorney

The Ziff Law Firm, LLP

303 William Street

Elmira, NY 14901

Phone: (607)733-8866

Fax: (607)732-6062

Email: agee@zifflaw.com

www.zifflaw.com

Court Decision Protects Plaintiffs By Making Defense Doctors Liable for Bad Advice

Posted on December 30, 2009 by Jim Reed

Most people take it as a given that doctors are accountable for accurate, competent care of EVERY person whom they see in a professional capacity. It’s difficult to believe, but until just recently, there was a big exception to that standard.

It was VERY difficult to successfully sue doctors who conducted medical exams for the defense in no-fault, worker’s compensation and personal injury cases. Typically retained by insurance companies or patients’ employers, these physicians were protected from lawsuits because they did not have a “duty of care” to the patients they saw. This duty wasn’t established because these doctors have a fleeting interaction with patients – seeing them once to collect information for the defense.

That has all changed, however, due to a recent decision by the New York Appellate Court – a decision I found out about via attorney Eric Turkewitz’s New York Personal Injury Law Blog. In the post, “NY Appellate Court Says OK to Sue No-Fault, Workers’ Comp and DME Physicians,” Eric explains this important change – a set of court-established criteria that make these “Doctors for the Defense” accountable for any bad advice or poor care they give the patients they see.

As Eric explains it, the New York’s Appellate Division First Department said that these doctors, can be sued if certain conditions exist. A court panel unanimously set these rules, based on the case Badalto v. Rosenberg:

“In the context of a physical examination conducted for the purpose of rendering an evaluation for a third party, such as an employer or insurer, an implied physician-patient relationship may arise if the physician either affirmatively treats the examinee or affirmatively advises the examinee as to a course of treatment.”

The three conditions set forth by the court are:

1. that the advice was incorrect,

2. that it was foreseeable that the plaintiff would rely on the advice, and

3. that the plaintiff detrimentally relied on the advice.

As an experienced personal injury attorney, Eric not only does a great job of explaining the qualifications demanded to make a case – but the consequences for personal injury law in general. This ruling gives a new protection to plaintiffs – and undermines the practice of quick, shallow medical exams for the defense.

To quote from Eric’s New York Personal Injury Blog posting on the subject:

“All those 5-10 minute quickie exams done by doctors on behalf of insurance companies may now subject those doctors to liability. If a doctor is going to cut off benefits, s/he will now have to write that the worker can go back to work, but also write that the worker shouldn’t actually rely on this opinion. The physicians will have to write, essentially, that their opinions are actually worthless and should not be relied upon. If an injured party shouldn’t rely on it, why should a judge or jury?”

Accountability. Standards. Informed opinions. Should anything less be expected of doctors – for any exam?

Thanks again to Eric Turkewitz for blogging about this and other important developments in personal injury law.

Sincerely,

NEW YORK ACCIDENT AND MALPRACTICE ATTORNEY WARNS: DON’T BE FOOLED

Posted on December 5, 2008 by Christina Sonsire

It is the little dark secret that peeks inside the courtroom through stoic-looking windows or the elephant in the room that no one is allowed to speak of, or reference, or even whisper in the presence of the jury. It’s taboo, prohibited, proscribed, the poster child of Orwellian Newspeak for modern day litigation. Say the word — one word — and you and your client are out. Quite literally.

What is the demonized word so carefully excluded from nearly all jury trials in the United States? You guessed it. The magic word is…(drum roll)…INSURANCE.

Anyone who has ever sat on a jury likely understands what I mean. Many jurors ask themselves throughout trial, “doesn’t the defendant have insurance?” And, most question why none of the attorneys are talking about the defendant’s insurance policies.

Let me put a few things to rest:

1. Yes, the defendant has insurance. Although this is not true all of the time, in nearly ALL cases the defendant in a personal injury or malpractice case has insurance coverage — and plenty of it. The reason is simple: lawyers are not going to put their clients through lengthy litigation and invest hundreds of hours of work hours into a case unless there is a reasonable likelihood their client is going to be able to recover just and fair compensation at the end of the day. In other words, most lawyers avoid Continue reading →

Steuben County Jury Rules City of Corning Not Responsible For Police Car Crash

Posted on September 27, 2008 by Jim Reed

WETM-TV reported the story below about a recent trial verdict in Steuben County, Bath, NY. This is not a case handled by our firm and I am trying to contact the Corning attorney who represented the injured woman to see what happened in the case. Stay tuned for more info.

You may wonder, why do I care about a care about a case handled by another lawyer? Pretty simple. As trial lawyers we often learn a lot by finding out what went wrong for another lawyer in another case. Likewise, when there is a big verdict for the injured party, we learn by finding out what went right. The bottom line is that to be an effective trial lawyer, you have to be learning all the time…..

Thanks for reading,

Jim Reed
NY and PA Injury and Malpractice Lawyer
jreed@zifflaw.com

Jury Rules City Not Responsible For Police Car Crash

A New York State Supreme Court jury has ruled that the City of Corning is not responsible for the injuries a woman suffered when her car collided with a police car. That’s according to the attorney representing the city in the case, Andrew Schwab.

The crash happened three years ago at the intersection of Bridge and Pulteney Streets. Schwab says 21-year old Maurica Tallarida was seeking over a million dollars in damages in the civil trial. She was ticketed for failing to yield the right of way but a Corning City Court judge threw out the ticket, citing witnesses that said it was the police car that ran the red light.

The Supreme Court jury ruled that the officer was not negligent. We were unable to reach Tallarida’s attorney for comment Friday night.

Safety Tip #1 — Check your Tires

Posted on July 2, 2008 by Christina Sonsire

“A stitch in time saves nine.” I never really understood this proverb when I was growing up, though I certainly heard my father use it on more than one occasion as he cautioned me to take my time before embarking on a new endeavor.

As a personal injury attorney in the Elmira/Corning, New York area, I have now come to understand the true wisdom behind those words, especially when it comes to automobile maintenance. Accidents certainly do happen, but general awareness of basic automobile maintenance can go a long way toward preventing personal injuries and saving lives. Although I do not profess to be an expert mechanic in any way, I have decided to post basic auto tips periodically this summer to inform – or more likely, remind – readers of simple steps you can take to protect your families from injuries sustained in automobile accidents.To many people summer is synonymous with road trips and family vacation, and I hope my tips will help readers stay safe when hitting the roads.

Tip #1 – Check your Tires

Today is my parents’ 40th wedding anniversary. My father, ever the romantic, decided to take my mother to the Sherwood Inn in Skaneateles, New York for a little getaway. Alas, as my parents pulled out of Horseheads to begin their journey, they got a flat tire. Luckily neither was injured and my dad had the tools to change the tire, though they may have been “spared” (I couldn’t resist) a short delay if only my dad had followed his own advice and checked car before getting on the road.

Tires are crucial to vehicle’s handling, traction, and stability, and can cause an automobile to loose alignment if they are not in proper working order. In general, you should check each of tire periodically, or about once a month.

When checking your tires, first look for obvious defects and damage, and visit a professional if anything looks seriously amiss.

It is very wise to carry a tire gauge in your automobile at all times, and you should check the pressure in each of your tires every time you check them. Tire pressure changes due to a variety of factors, though they are most commonly affected by changes in weather or air temperature. A decrease in air temperature often causes a loss in tire pressure, while an increase in air temperature often causes a gain.

Each vehicle has its own recommended air pressure, and information about it can likely be found in your vehicle’s owners manual. Although a tire’s maximum pressure is listed on its in fine print, you should never use max pressure as a guide when filling your tires because over-inflation allows tires to puncture more easily and can create instability for your automobile.

As an avid bicycle rider, I realize the importance of checking the pressure of my bike’s tires before every ride I take to avoid an accident (and make the ride more enjoyable!) Although checking a vehicle’s tires before every trip may be a bit overly onerous, it is something all of us could do a bit more frequently in order to stay safe.

Thanks for reading,

Christina Bruner Sonsire

District of Columbia, et. al. v. Heller: One for the Ages

Posted on June 27, 2008 by Christina Sonsire

Calling all Constitutional Law Junkies: June 26, 2008 was a monumental day.

It is not often (yet more frequent these days than is perhaps appropriate) that the U.S. Supreme Court authors a decision in which it offers — in nearly 150 pages of disparate, arguably subjective detail — overtly telepathic insight into the minds and hearts of the framers cast under a thin, unimpressive veil of stare decisis. A day to celebrate? Perhaps, as it was for the N.R.A. supporters and the libertarian crowd who view the District of Columbia, et. al. v. Heller through a narrow pragmatic lense as a promotion of individual liberties (and security that they can keep their guns.) A day for outrage? Apparently for a “frightened” Mayor Daley, as he trumpeted the call to fight for the right to ban guns in his hometown and plans were made to challenge similar laws in megapolises across the country.

I felt something in between. I feel scholastic excitement, to be sure. Heller , like Bush v. Gore, will certainly endure as a landmark case in Constitutional Law 101 for centuries to come. The majority opinion, authored by Justice Antonin Scalia and joined by Justices Roberts, Thomas, Alito and Kennedy, is bursting with interesting (if somewhat trivial given Scalia’s general predisposition against extra-four corners constitutional analysis) historical references — James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment; E. de Vattel’s 1792 “The Law of Nations, or, Principals of the Law of Nature”; England’s 1671 “Game Act”; and, of course, the mighty and ever-persuasive Federalist Papers. (As a reverent admirer of the Papers, Continue reading →

HIPAA – ANOTHER CASE OF POWERFUL RIGHTS AND WIMPY REMEDIES

Posted on April 9, 2008 by Christina Sonsire

In a world seemingly dominated by all-encompassing HIPAA protections (i.e. the dozens of forms you are asked to sign when treated in the hospital) and daunting HIPAA fears (i.e. your boss’s warning that you cannot repeat, recite nor should you even remember information you learn from HIPAA sensitive documents while on the job,) the question inevitably arises: What can I do if I feel my so-called “HIPAA rights” are violated?

Proper analysis of that inquiry requires a basic understanding of Health Insurance Portability and Accountability Act of 1996. (A complete copy of the HIPAA statute can be found at http://aspe.hhs.gov/admnsimp/pl104191.htm.) Continue reading →