The Elliot Schlissel New York Law Blog

A local newspaper recently published an article about an incident that occurred recently on a New York highway in which two individuals were charged with driving while intoxicated.

An on-duty highway police officer noticed that a vehicle was being driven erratically.  After pulling over the vehicle, the police officer gave the driver a series of sobriety tests and concluded that the driver was intoxicated.  The officer thereafter started the procedures to arrest the individual and placed him in the police car to be transported to the precinct.

While the intoxicated driver was being placed under arrest, the person in the passenger seat of the vehicle which had been pulled over had moved over to the driver’s seat.  The passenger then started the car and drove off.

The officer had noticed initially that both the driver and the passenger were intoxicated when he first pulled the car over.  He followed the vehicle for a period of time and soon thereafter pulled over the vehicle which was now being driven by the former passenger.

Upon further investigation, the police officer came to the conclusion that the passenger was also intoxicated and arrested him too.

Conclusion

The moral of this story is that if you are in a vehicle driven by someone else who is intoxicated and you have been drinking as well, do not drive the vehicle away!  Ask for help or ask the police officer to call a taxicab for you.  There are serious penalties resulting from a conviction for driving while intoxicated.

Should you have any questions or issues involving the crime of driving while intoxicated, feel free to call the DWI defense attorney’s at the law office of Elliot S. Schlissel at 1-800-344-6431, or by email.

Clifton Mack, age 48, had an extensive history of being a sex offender. In 1991 he was convicted of seducing young boys. He had prior convictions dating back to the 80′s for molesting young boys.

In 2005, he participated in a prison treatment program. He did not complete the program because he was kicked out. He was kicked out of the program for possessing materials depicting naked children!

Recently, despite overwhelming evidence that Clifton Mack who had spend 16 years in prison for molesting young boys and cannot control his pedophilia, a new state judge ruled that he lacked authority to institutionalize Mack upon his release from prison.

Acting Supreme Court Justice Michael A. Gross of the Bronx stated that his hands were tied. The 2007 New York State law which establishes civil confinement for dangerous sex offenders expressly mandated the release of a prisoner when he completed his prison sentence if a jury determines he had no “mental abnormality” making it likely that he would commit additional sex offenses.

History Of Arrest

Mr. Mack was first convicted in 1986 for exposing himself to a group of young boys and trying to molest them. He was sentence to 5 years of probation. While on probation he was arrested for abusing young boys. Further investigation indicated he had abused as many as 10 young boys.

In 1993 Mr. Mack plead guilty to sodomy and was sentence to 8 1/4 to 16 1/2 years in prison. In June 2009, he was transferred to a state psychiatric center in the Bronx awaiting the determination of the states confinement application.

Judge Gross’s ruling that he could not hold Mr. Mack in civil confinement is extremely upsetting. The law needs to be changed and strengthened. Sexual perverts should not be released to commit further crimes against young, unsuspecting victims.

In June of this year Supreme Court Judge Ross, the supervising judge of the matrimonial courts in Nassau County, held that a mother, Lauren R., willfully violated his court order by intentionally and deliberately alienating her young children from her ex-husband Ted R.

Civil Contempt

Judge Ross held her in civil contempt and ordered that she be incarcerated every other weekend during the course of the summer. Judge Ross held that “the evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ stipulation of settlement.”

The judge’s decision also stated “the extensive record is replete with instances of attempts to undermine the relationships with the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unsatiated vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of good faith, and her imposition upon the children to fear her tirades and punishments if they embrace the relationship they want to have with their father.”

During the course of the hearing regarding this matter Mr. R testified to numerous occasions in which his ex-wife interfered with his visitation or took action to alienate the children from him.

During Mr. R’s testimony he told the court of events in the winter of 2007 when he was prevented from seeing his children for a period of 6 weeks. He was relegated to lighting a menorah for Hanukkah and watching his daughters open their grandparents’ presents in the back of his truck as the base of his ex-wife’s driveway.

Change In Custody

Judge Ross was so shocked by Mrs. R’s behavior that, in addition to holding her in contempt, he ordered a hearing to consider a change in custody and to consider Mr. R’s request for more than $134,000 in attorney fee’s to be paid by Mrs.R. The hearings on this matter were postponed due to an appeal brought by Mrs. R. Hooray for Judge Ross!!

This case should serve as a warning that both parents are responsible for putting their children’s best interests before their own anger at their spouses or ex spouses.

If you have problems involving parental alienation or interference with visitation contact the parental rights attorneys at the law office of Elliot Schlissel 1-800-344-6431.

On or about February 6, 1994 Abraham Pollack, a father of nine was shot. He had been collecting rent for a building he owned in Williamsburg, Brooklyn, at the time of the incident. An anonymous caller claimed that Jabbar Collins committed the crime. Jabbar was tried and convicted. His sentence was a minimum of 34 years to life in prison.

While in jail, Jabbar Collins became a jailhouse attorney. Through his efforts, he uncovered various documents that suggested that the prosecutor on his case had withheld evidence, coerced witnesses and lied to the court and the jury.

A Habeas Corpus proceeding was brought before Federal District Court Judge Dora Irizarry. A hearing ensued. At the hearing Mr. Collins produced evidence that the prosecution heading by a Mr. Vecchione had withheld evidence, threatened witnesses and made materially false statements to the trial court.

Material Witness Incarcerated

One of the documents produced showed that a key prosecution witness had been incarcerated as a material witness to ensure that he would testify against Mr. Collins.

At the time of the trial Mr. Vecchione stated that defense counsel’s claims that the witnesses had been pressured to take the stand was untrue. Other documents produced indicated that there were plea bargain arrangements to induce individuals to testify.

One of the witnesses who testified at the original trial, Angel Santos testified at the hearing that he had been a “24/7 drug user at the time he testified against Mr. Collins.” He also indicated that he was most likely on drugs when he allegedly witnessed Mr. Collins running from the scene of the crime. These facts were not disclosed by the prosecutor at the time of the trial. Mr. Santos also stated “that Mr. Vecchione had told him he would hit me over the head with a coffee table or lock me up for couple of years for perjury” if he refused to testify.

After hearing the evidence Judge Dora Irizarry vacated Mr. Collins’s murder conviction and barred prosecutors from retrying him. Mr. Collins is now a free man!

The State of New York does not allow individuals of the same sex to legally marry.  However, if individuals of the same sex entered into a valid marriage in another state and are New York residents, meeting the jurisdictional requirements of New York Domestic Relations Law, they can still obtain a divorce in New York.  In the case of Dickerson v. Thomson, the Third Department of the Appellate Division (an appeals court) held that New York State courts have subject matter jurisdiction to deal with divorces arising out of same-sex relationships.

In the Dickerson case, the parties had entered into a a civil union in the state of Vermont.  By the time the civil union failed, both of the parties had moved out of Vermont and were now New York residents.  The State of New York recognized the civil union made in Vermont based on comity (respect for the laws of a different state).  The proceeding to dissolve the civil union was brought in the State of New York.

Conclusion:

A same-sex couple cannot get married in New York, but New York will recognize their out-of-state marriage and will therefore grant the individuals a divorce under New York law!

Should you have issues with your marriage, regardless of your sexual preference or orientation, the law office of Elliot Schlissel can help you.  Contact us at 1-800-344-6431, or by email.  

Let’s assume you are married. But on the side you also have a boyfriend. During the course of your dalliance with your boyfriend he becomes abusive. What can you do?

In 2008 New York law changed regarding obtaining orders of protection. The law now allows individuals in “intimate” relationships with non-relatives to obtain orders of protection.

In January of 2009 the Madison County Family Court denied Jessica D’s request for an order of protection based on public policy. The court in this case acknowledged that Jessica and her boyfriend had an intimate relationship but for public policy reasons since she was married the court refused to give her an order of protection.

The Appellate Division for the Third Department (an appeals court) held that the purpose for the expansion of the law by the State Legislature was to protect citizens from domestic abuse situations. The court held that the legislature’s intent was to extend the court’s jurisdiction to grant orders of protection to relationships of a non-traditional nature, such as a married woman having meritorious relationship during the term of her marriage with a boyfriend.

Orders of protection can create all kinds of problems for both men and women. Should you experience these problems feel free to contact the law office of Elliot Schlissel for assistance at 1-800-344-6431.

The United States Supreme Court has recently taken action to restrict the famous “Miranda Criminal Warnings.” The Supreme Court rulings will impact police procedures. Police will have more leeway in the questioning of suspected criminals.

Police Questioning

The Supreme Court has not eliminated the Miranda warnings which are, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you can not afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?” These Miranda rights’ impact have been reduced by the United States Supreme Court during this past year.

Under the courts current ruling, if you ask to have an attorney present during questioning this request is only valid for 14 days (two weeks). After two weeks the police can question you without violating your constitutional rights.

If you are a criminal suspect and you are arrested today you must state to the police, “I wish to remain silent.” If the suspect does not advise the police that he or she wishes to remain silent the police consider this to be a waiver of his or her Miranda rights. Legal experts feel that the Court’s rulings will make it easier for police to obtain confessions from individuals who do not want to confess.

Should you be arrested or charged with a crime or be the subject of a criminal investigation, it is important that you contact experienced aggressive criminal defense attorneys. Feel free to call the law office of Elliot Schlissel at 1-800-344-6431.

There are many very important uses for wills.  However, there are things for which wills were not designed and cannot accomplish.  The following are a list of things that can NOT be dealt with in a will:

1.  If you own assets in a “joint tenancy” with another individual, or a “tenancy by the entirety” (a marital estate), you cannot dispose of the assets in a will since there are two owners of the assets.  If one party dies, the surviving party inherits all of the remaining assets.

2.  If you have a life insurance policy with a named beneficiary, you cannot change the beneficiary designation in a will.  To change a beneficiary designation, you must contact the life insurance company and fill out a “change of beneficiary” form.

3.  Stocks and bonds that have a beneficiary designation, such as transfer upon death (TOD) cannot be bequeathed in a will.  To change the beneficiary designation on these types of stocks or bonds, you must contact the security company that holds the security and fill out the appropriate paperwork.

4.  Pension plans, 401K plans, 403B plans, IRA’s, SEP’s and other retirement plans that have a named beneficiary cannot be impacted by a will.  To change the beneficiary designations, you must contact the administrator of the plan and complete a “change of beneficiary” form.  However, if the beneficiaries predecease you or there are no beneficiaries named, you can name a beneficiary for this asset in a will.  This also applies to life insurance policies and annuities.

5.  Bank accounts that have a “payable on death” feature or a beneficiary designation cannot be devised under a will.  For example, if you have a bank account and it says “pay to my daughter Sue”, and you write a will indicating proceeds in that account are to be paid to your son John, the designation in the bank account will control.

6.  You cannot leave contingent gifts in a will.  An example would be a gift that is contingent upon a person becoming married, divorced or changing his or her religion.  However, you can put a clause in a will leaving money to a son to pay for his college education.  In the event the son does not go to college, those funds could be used for another purpose.

7.  You cannot have a clause in a will that goes against public policy or is illegal.  An example of this would be an attempt to leave money in a will for the purpose of buying illegal drugs.

8.  You can’t make appropriate arrangements for a child or family member with special needs in a will.  A special needs trust is required for this purpose.

9.  Wills may not contain clauses that leave assets to pets.  For example, you cannot leave $10,000 to your dog Rover.  However, you are allowed to leave money to an individual taking care of your dog, or a trust can be set up and funded through your will to pay for such care.

Should you have any questions regarding wills, trusts and estates, feel free to contact the attorneys at the law office of Elliot Schlissel, by email or at 1-800-344-6431.

Americans today are living longer than prior generations.  As individuals grow older, their needs may increase.  Long-term care often involves children caring for their elderly parents.  Children who have careers and/or families of their own may find it difficult to help care for their parents as they grow older and infirm.

Healthcare Aids and “Live-ins”:

The best way to handle these matters is to encourage your family member to become involved in his or her own long term planning.  Individuals want to maintain their independence.  There are times when a senior family member will reject your help.  If your family member needs day-to-day assistance, a live-in companion may be a good route to take.  Paying for healthcare can be expensive.  A Medicaid application may need to be submitted to see if your family member qualifies for Medicaid benefits.

End-of-Life Issues:

You should discuss a variety of end-of-life issues with your elderly family members.  You should ask them whether they have a will, and if they don’t, suggest that they write a will.  Discuss the need for a power of attorney should they become unable to handle their financial affairs.

A healthcare proxy or a living will may also be helpful to determine medical treatment issues should a loved one become mentally incapacitated.

Asset Issues:

You should discuss where your family member maintains his or her important information and documents.  If password protected software is used, you should have access to those passwords if needed.  Should your family member have bank accounts, safe deposit boxes, retirement accounts, stocks, bonds or life insurance, you should discuss where these assets are located.

Helping the elderly may be difficult, but it can also be very rewarding.  Your parents brought you into this world and helped you to grow and develop.  Children should help their parents and other family members.

Should you have any questions regarding helping a senior citizen or senior issues, feel free to call the elder law attorneys at the law office of Elliot Schlissel, at 1-800-344-6431 or by email.

Individuals with significant assets can reduce their tax liability upon their death by using sophisticated wills and trusts. In 2010, the wills, trust and estate area is facing a unique situation. For the 2010 calendar year there is no federal estate tax.  After 2010, the federal estate tax exemption will go back to one million dollars.

Well drafted wills and trusts can create schemes that minimize the estate tax faced by individuals.  Should you have an estate of over a million dollars, it is important that you meet with an estate planning attorney.  Appropriate action must be taken to see to it that your heirs receive the assets you have accumulated during the course of your lifetime without paying 50% of these assets in federal estate taxes.

Should you have any questions and wish to discuss estate planning, contact the estate planning attorneys at the law office of Elliot Schlissel at 1-800-344-6431 or by email.