Capital Region Legal News

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.


Monday, February 15, 2016

Bad Year for Criminal Justice in the U.S.

What do statistics show about our broken criminal justice system?

As the United States prepares to elect a new president, one hot issue of the campaign is our flawed criminal justice system. Not only are a large number of arrests considered unfair, targeting minority populations disproportionately, there have been far too many cases of abuse by police and prison guards. Most disturbingly, there have been a frightening number of deaths resulting from police shootings of unarmed victims and suspicious deaths within prisons apparently resulting from negligence and/or abuse.

Add to all this that the latest statistics show that, in 2015, four out of 10 people were cleared of the crime they had supposedly committed. Not only is the U.S. imprisoning more people than any other country in the world; we are imprisoning a great many innocent people.

The Harsh Undisputed Facts

The U.S. has less than 5 percent of the world's population, but 25 percent of the world's prisoners.

Crime in the U.S. is at a historic low, but we have more prisoners than we did 30 years ago.

In 2015, 40 percent of prisoners were cleared of crimes for which they had been wrongfully convicted, many after they had spent years incarcerated.

Four out of 10 mistaken incarcerations were for murder; five of the 58 people in this category had been sentenced to death.

The year 2015 set records both for injustice in terms of incarceration and in terms of police brutality.

American police killed 1205 people during last year.

More than two-thirds of the defendants exonerated in homicide cases were people of color; 50 percent were African-American

While we have reliable statistical evidence pertaining to false convictions resulting in death sentences, we do not yet have statistical support for non-capital convictions. Nonetheless, even if the rate is 1 percent, we are still talking about tens of thousands of unjust convictions during last year, and who knows how many unjust convictions in past years resulting in huge numbers of prisoners still incarcerated for crimes they did not commit.

The Cost of Injustice

While it is impossible to tally the cost of unjust imprisonment in terms of human suffering, family emotional and financial distress and dissolution, exacerbation of criminal behavior, incubation of new criminals, increased drug abuse, we can put a monetary price our country pays for maintaining prisoners.

The price of incarcerating individuals, whether they are actually guilty or innocent victims of an unjust system, is the same. In New York State it costs between $50,000 and $60,000 annually to keep a person in prison. This means that the total New York State spends on incarceration in almost $3.6 billion.

As the above illustrates, if you are facing criminal charges in New York State, it is essential that you contact an expert criminal defense attorney to protect your rights. Contact Ianniello Anderson, P.C., serving clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy, and the entire Northeastern NY areas at (518) 350.7755.

Wednesday, February 10, 2016

The Advantages and Disadvantages of Buying a Home With Friends

Is buying a home with a group of friends a good idea?

 If you are in your 20s or 30s, buying a house might seem impossible. One way that it might become doable is if you purchase a home with a group of friends. This might seem like a good idea, but, there are many variables that make it a less than ideal situation.

 So what are the advantages of buying a house with a group of your friends? Most importantly, you can all pool your money for a down payment. In addition, the house could be used as a residence or vacation home. Also, when not in use, the house could be rented out and used as a source of income. 

 Unfortunately, there are also many disadvantages to this type of arrangement. The home will likely have to be purchased in cash because it is very difficult for a group of three or more people to get a mortgage together. Also, any one of your friends that has bad credit could cause the mortgage rate to increase. You might think about leaving this friend off the loan, but then issues of ownership become confusing. Essentially, if added to the title, this person would have ownership rights but would not be legally responsible for the loan payments. As you can see, this is a less than perfect situation. 

There is also a dilemma concerning how to structure the ownership of the home. Two options include ownership as tenants in common or as a limited liability company (LLC). Owning the property as tenants in common will allow you to name the owners, their shares and designate who should inherit from each stakeholder. As tenants in common, however, all of the owners would be exposed to personal liability should a debt arise. With ownership as a limited liability company, the stakeholders would be recognized, but would be sheltered from personal liability. An LLC would have to be set up as a separate entity according to state law. With ownership as a group, you will also have to consider what will happen if one owner wants out or becomes incapable of ownership.

 Owning a home as a group might seem like a win-win situation until you get down to the details. If you are interested in the purchase of a residential property in this way or in any other, the experienced Albany, Troy, Saratoga Springs and Clifton Park real estate attorneys at Ianniello Anderson are here to assist you today.

 


Saturday, January 30, 2016

Federal Government to Crack Down on Use of LLC's to Purchase Real Estate

Can real estate purchasers expect complete anonymity during the transfer process?

 

There are a number of reasons to insist upon anonymity in the real estate purchase process, particularly if a buyer or seller wishes to keep the purchase price confidential. While many aspects of the real estate purchase process can be kept confidential, recent changes to federal laws may make it more difficult to make purchases of high-end real estate through the use of an anonymous LLC or trust.

 

According to the federal government, there has been a significant influx in anonymous high-dollar real property transactions, particularly in major metropolitan areas like New York City and Miami. While at first blush this may seem like a savvy way to conduct a complex investment strategy, investigators are suspecting a more sinister motive may be afoot: money laundering.

 

Investigators take aim at criminal activity

 

According to the FBI, the types of transactions at the top of the watch-list involve any of the following factors:

 

  • All-cash transactions
  • Use of shell companies as the purchaser
  • Refusal to identify individuals involved in the purchase
  • Extremely high-purchase prices of luxury homes and condos

 

Investigators began their inquiry into real estate-related money laundering schemes following the publication of a controversial article in the New York Times. In that piece, journalists revealed that shell companies were becoming an increasingly suspicious mechanism for foreign purchases to snatch up high-end real estate, all while realtors and U.S.-based attorneys were turning a blind eye to the actual identities of the purchasers.

 

For instance, the article revealed that a condominium in the Time Warner Center was recently purchased for over $15 million. The buyer? An entity known simply as “25CC ST74B L.L.C” – which was ultimately revealed to be tied to a wealthy Russian family with ties to organized crime. In the same building, foreign purchases – many of whom are facing corruption charges in their homelands – were made by entities with ties to Greece, China, Colombia, Malaysia, China, Kazakhstan and Mexico.

 

For the casual real estate purchaser, the new regulations are unlikely to create any difficulty or hurdle in the process – even if an LLC is used to make the purchase. Most notably, the FBI intends to focus its efforts on suspicious all-cash transactions, and has instructed title insurance companies to uncover the true identities of all applicants for title insurance policies.

 

If you have questions about how to purchase real estate under these new federal rules, you should consult with a qualified real estate attorney.

 


Thursday, January 28, 2016

DWI Dismissed Because NY Woman’s Body Makes its Own Booze

Is auto-brewery syndrome a real thing?

You might have missed this interesting court ruling that came down over the holidays: a lady from Hamburg, New York who had been charged with DWI had all charges against her dismissed after her lawyer proved it was not the three drinks she had had earlier that day that made her drunk, but the bacteria in her gut. A lot of our DWI clients have been sending us links to news stories about this case asking if this might have been the situation in their case, so we decided to take a closer look. 

The Buffalo News reports the facts of the case as follows:

The woman, a Hamburg resident, was stopped at around 7:15 p.m. on Route 5, near the Ford plant. Hamburg Officer Daniel Gallardo reported that he pulled the woman over after another driver called 911 to report that the driver’s 2010 Toyota Corolla was “weaving all over” the road.

Gallardo reported that he noticed the Corolla’s right front passenger tire was flat and the vehicle was producing “a large amount of smoke and a noticeable smell of burning rubber.”

The driver had alcohol on her breath and “exhibited glassy-bloodshot eyes and slurred speech,” Gallardo reported. The officer said the driver told him she had about three cocktails earlier in the day while visiting her parents in Buffalo.

Although the driver was able to recite the alphabet at the officer’s request, she had trouble with several other sobriety tests, including standing on one foot and talking and turning heel-to-toe, Gallardo reported.

The driver’s BAC was measured at .33 percent by the Breathalyzer and .30 percent in a later blood test administered in the Erie County Medical Center.

How could someone with such a high BAC (.33 is over four times the legal limit, and is in the range where medical professionals are usually called in to make sure the person doesn’t suffer alcohol poisoning or other health problems from their drinking) be functioning well enough to drive a car? And why was her BAC so high after having only three drinks, over several hours, earlier in the day?

Her attorney did some research and found out there is a rare intestinal disorder called “Auto-Brewery Syndrome” (ABS) that can turn ordinary food and beverages into alcohol in a person’s body. The attorney had the client tested for ABS, and sure enough, yeast in her guts was found to be cranking out the booze.

The judge handling the case dismissed it after evidence of the accused’s ABS was introduced. This has a lot of people wondering whether ABS could have played a role in their DWI citations.

The answer to that question is it’s possible, but unlikely. ABS is a relatively new disease that is not widely recognized by the medical community or the courts. In addition to this women from New York, there have only been two other widely publicized cases.

Because this disease is so rare, diagnosing it is not something your local doc is going to be doing on a regular basis. So, if you think you have ABS, you are probably going to have to spend a substantial amount of time and money getting properly diagnosed. 

We’ll be keeping a close eye on the case from Hamburg as it is appealed and reviewed by higher New York courts since whatever the higher courts say about this case will become the law of the land here in Eastern Upstate New York despite the fact that this case is from the Western part of the state.

We will also be monitoring the medical research in this area so that we can properly assist people who have been charged with DWI/DUI/and other alcohol-related offenses who think they may be suffering from ABS. 


Monday, January 25, 2016

Controversy Surrounds an Especially Egregious Rape in Brooklyn Playground What circumstances make the recent playground sexual assault controversial?

Rape is always a terrible crime, violent and traumatic. In the case of the recent alleged gang rape in a Brooklyn playground, the circumstances were particularly horrible. According to the prosecution, during a recent evening, a gang of five young teenagers accosted a young woman who was walking with her father in the playground. Threatening the father with a gun, they forced him to run and proceeded to take turns raping the victim.

The circumstances of the crime brought to the mind of New Yorkers the specter of the horrendous attack attributed to five juvenile perpetrators in 1989. In that case, after the alleged rapists had spent extensive time in prison, they appealed their convictions and were found innocent of all charges. Another man confessed to, and was convicted of, the crime.

In the recent case, the father says that, after having been threatened with a gun, he ran off to seek help. Later that night, four of the suspects were apprehended, but the fifth suspect remained at large. A few days later, the fifth suspect, Travis Beckford, 17, was arrested after he arrived at high school for his morning classes.

The case is by no means open and shut, involving, as it does, wildly contradictory stories. Not only do two of the suspects state that when they came upon the alleged victim she was having sexual relations with her father -- incest is a felony crime -- but a cell phone video has surfaced, taken by the brother of one of the suspects, showing the young woman, naked from the waist down, smiling in the presence of a young man to whom she is heard apparently agreeing to have sexual relations. In addition to the serious questions this data presents, the alleged weapon has not been recovered by the police, and the alleged victims were unable to identify the supposed perpetrators in a line-up.

Although the young woman was clearly injured and traumatized after the attack, there are many complications to the story. Apparently, the alleged victim was living out of state in foster care until last summer. The man she was with, her biological father, had lost custody of her when she 3 years old. Furthermore, the young woman had had no contact with her biological mother for a very long time. The incest charges are still being investigated, but the father has not yet been charged with a crime, nor has a sample of his DNA been requested.
The young men involved in the case have been charged as adults with rape, sex abuse and committing a criminal sex act. Nonetheless, controversy continues to swirl around the case. There is a prevailing opinion in the Brownsville neighborhood, where the alleged crime took place, that the young woman and her father were engaged in a sexual relationship, and the shadow of the earlier miscarriage of justice in the Central Park jogger case hangs over the situation.

As if these complications were not sufficient, there are also serious questions being asked about why all city playgrounds are not locked during the night to prevent possible criminal activity. In addition, Mayor DiBlasio has expressed dismay that it took several days for him to be informed about the incident, an inaction NYC Police Commissioner Bratton acknowledges was wrong.

If you have been suspected of, or arrested for, rape, incest, or another serious crime, it is essential that you promptly contact a criminal defense attorney who can help you navigate the justice system, gather evidence and witnesses, and aggressively defend you in a court of law.


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