Capital Region Legal News

Saturday, May 7, 2016

A Primer on Real Estate Contracts

What items should be included in a real estate purchase contract?

Buying a home requires careful planning, particularly when it comes to signing a contract with the seller. In order to protect your interests, there are certain items that should included in the agreement. While most real estate purchase contracts contain standard terms, it is important to know what to look for before you sign on the dotted line.

Key Terms of a Sales Contract

For most individuals, buying a home typically involves arranging for financing with a mortgage lender, and any offer should be contingent upon your loan application being approved. In particular, you should specify the interest rate in the contract to ensure that you can afford the monthly obligation.

Read more . . .

Wednesday, May 4, 2016

New York Home Sales Continue to Climb

How is the housing market in New York performing in 2016?

It's been a long time coming, but the housing market in New York seems to have turned the corner on the real estate collapse that triggered the financial crisis in 2008. In fact, a recent report by the New York State Association of REALTORS indicates that the first quarter of 2016 has been the best start to the state's housing market since 2007. The Association is a not-for-profit trade organization representing more than 50,000 real estate professionals in the state.

Home Sales in New York

For the first three months of the year, there were 23,932 closed sales which equates to a 17 percent improvement over the same period in 2015. Median sales prices also slightly improved by about  1 percent.

Read more . . .

Monday, May 2, 2016

Loss Mitigation Continues to Benefit Home Owners

Why are non-foreclosure solutions outpacing foreclosures?

Loss mitigation is a process through which mortgage lenders work with homeowners delinquent on their mortgage payments. Through loss mitigation, a lender can modify the terms of a home loan, allowing the homeowner to sell the property for less than is owed, or transfer the deed back to the lender. Though designed to reduce potential loss incurred by lenders, the process also helps borrowers to remain in their homes and avoid foreclosure.
Read more . . .

Sunday, April 17, 2016

Criminal Justice Reform Comes to Albany

What can cities do to end mass incarceration?

The city of Albany, NY is leading the way in criminal justice reform with an innovative new program aimed at ending mass incarceration. The Law Enforcement Assisted Diversion (LEAD) program is a so-called "harm reduction" approach to reducing arrests and recidivism.

What is the LEAD program?

LEAD's new approach gives law enforcement the power to exercise discretion when encountering criminal offenders. Rather than arresting these individuals, police have the choice of diverting them to a case manager. In so doing, low-level offenders, including those facing certain drug charges, will not become trapped in the criminal justice system.
Read more . . .

Sunday, April 17, 2016

Homebuyer Beware: The Need for Title Insurance

How does title insurance protect a homebuyer?

For many individuals, owning a home is the heart of the American Dream, and there are a number of steps homebuyers need to take to make that dream a reality. Because buying a home is the largest investment many New York residents will make, it is essential for future homeowners to protect themselves. In addition to verifying the valuation of a home and arranging for an inspection, it is necessary to obtain title insurance to ensure that the seller can legally transfer free and clear ownership of the property.
Read more . . .

Tuesday, March 29, 2016

Latest in the Apple vs. FBI Search and Seizure Conflict

Last year, a stunned nation grappled with the implications that the terrorist group ISIS may have infiltrated the United States –- namely, an ill-fated San Bernardino Christmas party hosted by a center for mentally and physically disabled adults. More specifically, a husband and wife team allegedly opened fire on the unsuspecting crowd, leaving 14 people dead and several others seriously wounded.

Now, the conflict has taken an unprecedented turn as Apple­­, the multinational technology company – makers of the shooters’ mobile phones – has vehemently refused to turn over digital records pertaining to the phones. At issue, the company cites the slippery slope that could ensue once Apple “unlocks” the devices. As a result, Apple and the Federal Bureau of Investigation (FBI) have been at judicial odds with one another, filing brief after brief in support of their positions.

As a bit of procedural background, Apple was originally ordered to unlock the shooters’ iPhones by court order, which followed the Department of Justice’s “motion to compel” the evidence. Apple quickly and publicly denounced the order to unlock the phones, and filed a brief in opposition to the court’s demand. Namely, the company asserts that it would have to code new software to essentially “hack in” to the phones, and so doing would create a dangerous precedent upon which law enforcement across the nation could rely to compel evidence from suspects' Apple products.

In response, the Department of Justice most recently filed its brief in opposition to Apple’s motion to vacate the order, making the following arguments:

  • The burden placed on Apple to unlock the phones is not unreasonable
  • The request complies with the All Writs Act, as well as several other applicable communication acts
  • Apple should not be able to market its phones as “search warrant proof”
  • Requiring a company to add functional source code to its products does not violate users’ First Amendment Rights

In response, a spokesperson for Apple stated that the brief reads "like an indictment," and was "an unsupported, unsubstantiated effort to vilify Apple."

Under the Constitution, law enforcement must secure a warrant – based on probable cause – prior to seizing property belonging to a private citizen. Any information unlawfully obtained without probable cause is subject to suppression and exclusion prior to trial.

If you are facing recent criminal charges and would like to discuss your rights under the law, please don't hesitate to consult with one of our knowledgeable attorneys at Ianniello Anderson at 518.350.7755 where we serve clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication.

Monday, March 28, 2016

Having Adequate Savings Can Secure Your Approval by a Co-Op Board

Should you borrow money and claim it is your own for the sole purpose of getting approved by a co-op board?

It took years, but you have finally saved up enough money to make a down payment on a home.  You believe that a co-op is the best fit for your lifestyle. You think you have all your ducks in a row until you are informed that the co-op board wants to see a certain amount of money in your savings in addition to the down payment and closing costs. Surprisingly, the board wants you to have enough savings to cover two years of mortgage payments and maintenance fees.

What do you do now?

You could borrow the money you need from a bank, but this might not work because the bank may also want to see that you have a certain amount of money saved before giving you a loan.  You have also heard that a lot of people borrow the money from another person to deposit into their accounts just until the sale is finalized.  This can be referred to as "dummy money" and you are considering whether this is the right move.

Is it advisable to use dummy money?

If you use this strategy, you might say that this money was a gift. If you are asked to execute an affidavit swearing to this fact, however, you will be committing fraud.  You want to make sure you are not doing anything that will cause you to be liable for a misrepresentation of this kind.  Also, many co-op boards are aware that this is going on. So, they now require that this money be placed in escrow for a certain time period as a condition of the sale. This could tie up of the money for a number of years. Therefore, we do not recommend this course of conduct.

The truth is, if you do not have the kind of money that a particular co-op board requires, it is probably in your best interest to set your sights on a different piece of real estate. Our Albany, Troy, Saratoga Springs and Clifton Park attorneys handle all types of residential and commercial real estate transactions.  Contact us for a consultation today.

Saturday, March 26, 2016

A Primer on Real Estate Closings in the Capital Region

What happens at a real estate closing?

Buying a home in the Capital Region can be a very rewarding experience, but it requires a number of considerations like arranging for moving, setting up utilities, registering children in new schools. With all this going on, homebuyers preparing for the real estate closing are well-advised to engage the services of a qualified real estate attorney.

The Role of an Attorney in a Real Estate Settlement

Of course, an attorney should be involved long before the closing to help you navigate the purchase and negotiate the sales contract. Another important role of the attorney is to perform a title search in order to verify that the property is being sold free of any encumbrances such as liens or judgments and that the seller has the legal right to sell the property.  If there are judgments or liens that must be paid prior to the sale, the deal can be delayed. This can pose problems if you are simultaneously selling an existing home or are moving from an apartment.

When the deal is set to close, an attorney can help with a number of matters including:

  • Explaining the closing process
  • Reviewing the closing documents
  • Calculating the funds needed to close

Real Estate Closings at a Glance

A real estate closing, also referred to as a "settlement," is the final performance of all the agreements between a buyer, the seller and the lender for the purchase and financing of a home -- provided that the buyer is not purchasing the home for cash.

This involves the simultaneous exchange of documents and funds required to close the deal. The buyer pays the seller with a combination of a down payment, his or her own funds, and the proceeds of the loan. In exchange; the seller provides the buyer with a deed and other transfer documents, and clear title to the property. The buyer receives the loan proceeds from the lender, and the buyer provides the lender with a promissory note to repay the loan. The buyer and seller pay necessary attorney, title, and notary fees.

Post Closing

After the transaction has been settled, the buyer becomes the property owner and can take possession immediately or shortly after the closing, unless there is an agreement with the seller to take possession at an earlier or later date. There may also be other post-closing agreements to resolve such as reimbursements for real property taxes when the exact amounts due are unknown at the closing, or repairs that could not be made prior to the closing.

As you can see, a real estate closing in the Capital Region involves more than just signing a number of documents. Complicated issues may arise that only a highly skilled real estate attorney can resolve, so it is important to have one by your side. Please don't hesitate to consult with one of our knowledgeable attorneys at Ianniello Anderson at 518.350.7755 where we serve clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication.

Monday, March 21, 2016

Investigators Target Underage Drinking in Widespread Arrests

Can using a fake ID result in criminal charges?

Alcohol consumption by minors is a serious problem, but is the use of fake ID a criminal offense? A number of defendants in the Albany area have discovered that the answer is yes. An operation run by the New York State Department of Motor Vehicles recently resulted in 25 arrests involving underage drinking and counterfeit IDs. The arrests were part of Operation Prevent, targeting local businesses in and around Albany, including a liquor store, gas station and convenience store.

A DMV official said the businesses were extremely cooperative. The goal of the operation was to keep young people from using fake IDs to purchase alcohol and keep them out of dangerous situations, such as driving under the influence.

The sweep netted 21 fraudulent drivers licenses, as well as four that were valid but were used by someone other than the license holder. Investigators found fake out-of-state licenses from seven states. One holder of a fraudulent out-of-state license resisted arrest.

More than just a gimmick to order a drink, having a fake ID may be a criminal offense under New York law—"Criminal Possession of a Forged Instrument." Depending on the circumstances, laws prohibiting identity theft, falsifying business records, and other criminal offenses could also be involved.

The user of the false ID may also end up driving drunk, causing further legal woes.

In New York, individuals under the age of 21 may not buy or have alcohol with the intent to drink it. (They may be allowed to drink under the supervision of a parent or guardian.) Drivers under the age of 21 with a Blood Alcohol Content (BAC) of .02 BAC to .07 BAC violate the Zero Tolerance Law and may face a fine and license suspension. A BAC of .08 or higher is considered evidence of intoxication for all drivers and can have serious consequences, ranging from large fines and license revocation to jail time.

The use of a fake ID may be the beginning of a series of criminal law problems. In addition to the use of the ID itself, a "driving while impaired" (DWI) arrest could cause great harm and haunt a person for life. Skilled defense counsel can advise on the specific violations, penalties, and the best legal strategy for dealing with them.

Thursday, February 25, 2016

Prosecution Seeking To Include Evidence of Bad Acts in Trial of Albany Man

Can you admit evidence of a party’s prior bad acts in a criminal trial?

There are all types of evidence presented during a criminal trial. Physical, oral and documentary evidence are all fair game. Therefore, it can be hard to believe that the jury is not allowed to hear every piece of evidence. There are, however, a number of types of evidence than can be deemed inadmissible by the court. Even evidence that is generally considered admissible can be knocked out at a pretrial hearing for various reasons.

One example of evidence that may be considered inadmissible is evidence of a party’s prior bad acts. In an Albany criminal case that is heading to trial this spring, the prosecution is attempting to admit evidence relating to the prior bad acts of the defendant. Andrew Formby-Carter has been charged with Assault in the Second Degree after allegedly hitting a woman in the face with a bottle at a party early one morning. The prosecution is seeking to enter evidence collected from various police reports that relates to Formby-Carter’s prior violent behavior toward women. The question is, can they do this?

In New York, evidence of a party’s prior bad acts is potentially admissible but can only be used for impeachment purposes. This means that the evidence can only be used to attack a party’s character and not as evidence that he or she in fact committed the crime for which he or she is on trial. This evidence is to be used on cross-examination to attack a witness’s credibility. Therefore, the evidence of Formby-Carter’s prior violent behavior will be used to prove that he is not being truthful in his testimony. Whether this type of evidence will be allowed in a particular case is at the discretion of the trial court.

If you are facing a criminal trial, you need the best representation you can get.  Contact one of our knowledgeable criminal defense attorneys at Ianniello Anderson as 518.350.7755  where we serve clients in the  Albany, Troy, Saratoga Springs and Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication.

Monday, February 22, 2016

Refusals To Take Chemical Tests for DUI Reduce Conviction Numbers in Parts of Western NYS

How important are chemical tests for DWI convictions in New York State?

When a driver is stopped by the police for any reason and the officers suspect that the driver is intoxicated, they will ask that person to take a breath or blood test to determine blood alcohol content (BAC). Since law enforcement officials cannot force the suspect to take such a test, it is debatable what the driver who has been pulled over should do. 

Criminal defense attorneys often recommend that suspects who are impaired not take the test since it will provide a quantified piece of evidence. In fact, according to the NYS Department of Motor Vehicles, a third of all suspects in Erie and Niagara Counties refuse the chemical test. This is a higher percentage of refusals than in other counties in Western New York State, as well as in the nation in general. Fewer criminal convictions for DWI in these counties are, presumably, the result of this pattern of behavior. Even so, there are some cases where taking the chemical test could work in the defendant's favor since the individual appears more intoxicated than he or she really is, and there are negative consequences to refusing to oblige.

Refusal to take the test is no "Get out of jail free" card. Lacking precise chemical evidence, the prosecutor will use what is called "common law indications of intoxication," including: erratic driving patterns, staggering gait, inability to balance, and slurred speech. Being observational, rather than numerical, however, such signs are more difficult to use as proof in a court of law. This is shown by the fact that drivers who refused to take the test had a slightly higher rate of lowered charges than did those who agreed to take the test.

Private citizens, particularly those who have been negatively impacted by a drunk driving crash, perhaps by experiencing a severe injury or losing a loved one, obviously take a dim view those who drive impaired.  Many public officials, along with organizations like Mothers Against Drunk Driving, have spent years trying to toughen laws against DUI offenders. They refer to the section of the Vehicle and Traffic Law Section 1194 that explicitly states:
"Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcohol and/or drug content of the blood..." providing that test is administered by law enforcement.

Nonetheless, drivers are routinely permitted to refuse chemical tests to determine their level of intoxication. There are, however, serious consequences of refusal, including:

• One year loss of license, except possibly to meet medical needs or for school attendance
• Denial of plea reduction in some NYS counties, like Albany and Nassau
• Court- enforced to submission to a blood test when an accident has resulted in serious injury or fatality

Law enforcement and prosecuting attorneys are looking for ways to increase the number of intoxicated drivers who take one of the chemical tests, both to obtain more convictions and to get dangerous drivers off the road. Former District Attorney Clark supports increasing the license loss period to two years, without the possibility of appeal for the entire 24 months. This would certainly make it more difficult and less convenient for drivers to refuse being tested. 

If you have been arrested for DUI in New York State, you know you are in serious trouble. Please don't hesitate to consult with one of our knowledgeable attorneys at Ianniello Anderson at 518.350.7755 where we serve clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication.

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