Capital Region Legal News
Thursday, November 5, 2015
In the wake of the lingering housing market downturn, there are bright spots on the horizon. The real estate market in gaining momentum in New York.
Rising Home Sales and Prices
The numbers for the summer season show an uptick in closed home sales (up 4.3 percent), sales prices (up 7.4 percent) as well as pending sales (up 10.8 percent) according to the New York State Association of REALTORS®. Moreover, by the end of the third quarter, home sales across the state were up by more than 6 percent compared to the same time period in 2014.
A closer look at the sales figures in August 2015 shows sales of 12,044 compared to the total of 11,543 in August 2014. The year to date (as of August 31) sales total of 72,534 was 6.6-percent above the same period last year. The median sales price August 2015 was $252,500, compared to the August 2014 median of $235,000. The year-to-date median sales price of $231,500 represents a 2.9-percent increase compared to the first eight months of 2014.
In short, at the end of the summer season, New York’s housing market continued to grow at a “strong pace,” according to the Association CEO, Duncan R. McKenzie. Finally, housing inventories also fell by the end of the sales season.
Why This Matters
With home sales and housing prices on the rise, this is the time to consider getting back into the real estate market. The prospect of rising mortgage rates before the year’s end also makes this the time for buyers to capitalize on the lower rates.
If you are considering buying or selling a home, now is the time to do so. Real estate transactions are complicated and time-consuming, requiring help from experts. Having a lawyer represent you is the best way to ensure that your interests are protected.
Saturday, October 31, 2015
Does being on trial yourself disqualify you from being a good attorney, or make you a better one?
A well-known criminal defense attorney, Beau Brindley, who was accused of coaching witnesses to perjure themselves and obstructing justice by filing misleading court documents, has been found not guilty by the federal judge trying the case. After a 2-week bench trial, U.S. District Judge Harry Leinenweber also found Brindley's law partner not guilty of all counts.
In this closely watched court case, the verdict came as a surprise, since the great majority of criminal defendants who are tried in this federal court either plead guilty or are convicted at trial. Brindley himself declared his victory "a testament to criminal defendants...that you can fight the case... and, if you do, justice will be served." He also asserted that his case "validates aggressive defense" and that going through the process of being a defendant has given him a "clearer perspective on what criminal defendants go through."
The trial came a year after the FBI raided Brindley's law office. During the raid, they carted away email records, computer drives and handwritten notes. The most incriminating pieces of evidence found were the lengthy question-and- answer "scripts" for Brindley's clients which contained a great many falsehoods. The attorney allegedly had his clients memorize such scripts before giving trial testimony. In the end, however, the judge found that prosecutors failed to prove that Brindley knew his clients were lying when he put them on the stand. He agreed with Brindley's attorneys that it is common practice to provide clients with "exhaustive preparation."
The judge further noted that the testimony of Brindley's former clients, most of whom are currently serving lengthy prison sentences, had records of lying "at least once under oath." In addition, some clients were offered tremendous breaks in their sentences in exchange for testifying against Brindley.
In spite of the not guilty verdict, Assistant U.S. Attorney Michael Chmelar, the prosecutor said, in his closing remarks that Brindley's behavior showed "a startling disregard for the law."
Thursday, October 22, 2015
What constitutes sexual assault when one or both parties are intoxicated?
There is a great deal of confusion surrounding the definition of sexual assault and since nearly 25 percent of undergraduate women report having been sexually assaulted, it is clearly time to clarify. First of all, consensual sex means that consent has been given freely, without any threat of force or intimidation, and consent must be actively given. The absence of "no" does not mean "yes." It is important that both parties in a sexual encounter are aware that, under New York State law, a person cannot consent to sexual activity if that person is under the age of 17, is developmentally disabled, or is mentally or physically incapacitated due to intake of alcohol or drugs.
The following list, put together by Cornell University, is a good starting point for understanding the responsibility one has when engaging in sexual contact:
- All sexual contact requires consent
If a person is intoxicated to the point that he or she cannot consent due to incapacity, it is assumed that legal consent has not been given.
- There are a number of ways to withhold consent
If a person says he or she doesn't want to have sex, just want to cuddle or go to sleep, further sexual contact with that person can be interpreted as assault. Similarly, body language, such as turning away or pushing the other person away is considered a barrier to consensual sex.
It is always best to communicate fully with a potential sexual partner and to determine verbally what each person is expecting from the encounter. Be aware that the complainant will usually have the advantage over the initiator of supposedly unwanted or ambiguous sexual contact. Be cautious about overstepping boundaries.
- Consenting to one activity does not mean consent for all activities
Never presume that acquiescence to one stage of contact implies approval of all further sexual activity. If a person agrees to sexual touching, it does not mean the individual is agreeing to intercourse.
- Inability to consent due to intoxication means "NO"
If you have been charged with sexual assault on a college campus or elsewhere in the eastern upstate New York region, you would be wise to contact one of our skilled criminal defense attorneys at Ianniello Anderson. We can be reached at 518.350.7755.
Thursday, October 22, 2015
Why are many people beginning their home ownership with houses in the country?
A great many would-be apartment dwellers are deciding to begin their home ownership with a house in the country, often in upstate New York. As city apartment prices skyrocket, the roomy dwellings in the country look more and more appealing. Buyers have discovered that while they are lucky to find a studio apartment in Brooklyn for $350,000, for the same money they can purchase a 3-bedroom house on several acres in the Catskills. They may even find one in that price range with a pond or creek in the backyard. In many cases, a house in upstate New York, Connecticut or the Jersey Shore is purchased as a summer home and investment, with the idea of renting it out for part of the year.
Even the wealthy are seeking homes and property upstate or in other relatively rural areas, having found that they can buy magnificent homes in such areas for the amount that would purchase ordinary apartments with much less living space in New York City. Country homes draw buyers with the promise of a more relaxed lifestyle. Families with children are particularly excited by the idea that, by moving farther from the city, they can provide their kids with lots of room to run and play and experience the natural world.
Real estate companies upstate are experiencing an influx of customers who have decided to buy their "second homes first," some of whom may be renting temporarily in order to scope out the area. In more countrified areas, renters find several advantages. Not only does their money goes a lot further, but less cash is required upfront. They also feel much less pressure to rush into a purchase. Even as prices rise in more rural counties, prices of homes are significantly cheaper than properties in the city.
There are, inevitably, possible downsides to living in the country. For those who have lived in city apartments, the absence of a superintendent tasked with clearing the snow and other maintenance chores may be hard to adjust to. Former city dwellers may also be shocked by the presence of wild creatures on their properties. Encounters with deer, raccoons and even bears take some getting used to. Nonetheless, for a great many home buyers, the advantages of getting more for less and investing in a future of increased ease for their families outweigh the drawbacks of life in the country.
If you are thinking of making a real estate purchase in the upstate New York area and would like to consult with the experienced real estate attorneys of Ianniello Anderson, please contact our at 518.350.7755.
Thursday, September 24, 2015
Who wins when a homeowner's building plans conflict with the neighborhood's sense of self?
A recent case involving a local architect who wanted to build a house of his own design on his property in Rowayton, Connecticut demonstrates how real estate decisions cannot only be problematic, but can result in lawsuits or even arrests.
Two years ago, Bruce Beinfield bought property in a coastal section of Norwalk, Connecticut on which he planned to build a home for himself that, with its water views through floor-to-ceiling windows would provide what he termed "a ship-like experience." Far from expecting anyone to object to his architectural plans, he hoped his new house would become a beloved structure. Nonetheless, in spite of other projects in the area that had helped him achieve renown, his new project was met with tremendous opposition in the community.
Vocal residents complained that Beinfield's plans would produce an "imposing," "monstrous" structure in the land around Farm Creek, land they had been struggling to preserve, and would destroy the environment. Strangely, the community had been up in arms a few years before when Norwalk Land Trust owned 16 acres surrounding Farm Creek. At that time, the locals felt strongly that they didn't want a trust to own the property, worrying that vacant land would attract "vandals and undesirables."
Perhaps Beinfield's first mistake after purchasing the land was to send out an email with the subject line "...Farm Creek will be destroyed." Although most of his neighbors had opposed the existence of undeveloped property nearby, they definitely objected to a statement declaring environmental destruction. The mayor and other city officials were overwhelmed with emails protesting Beinfield's plan. Astonished by the intensity of the backlash, Beinfeld withdrew his application before it was assessed by the zoning commission. In spite of its withdrawal, the local community continued to be in turmoil with some citizens demanding that the land be preserved and others arguing for a smaller house to be built closer to the road. Placards displaying both sides of the controversy appeared in the region.
Finally succumbing to public pressure, Beinfield made arrangements to sell his property back to the land trust and have it designated "Beinfield Preserve." Unfortunately, even this decision didn't bring resolution since he and his immediate neighbors, the McHughs, were in dispute. He claimed that they were required to remove a fence, driveway and lawn area that were on his property. During an episode that Beinfield calls "the most humiliating experience in my life, by far,” he was arrested for taking a pickaxe to the neighbor's lawn.
Eventually, after continuing protests from neighbors that the preserve would bring strangers to the area, the land trust, fearing lawsuits, backed out of the deal and Beinfield was back where he started. He decided at this point that a compromise was long overdue and has now submitted new plans, this time for a house similar to the first one he envisioned but set as far back to the road as possible which will obscure fewer views.
This case demonstrates how complicated seemingly simple real estate issues can become. If you require skilled legal services regarding residential or commercial real estate, or zoning, land and municipal laws, please contact one of our highly experienced attorneys at Ianniello Anderson. Serving clients throughout upper New York State, we can be reached at 518.350.7755.
Monday, September 21, 2015
How is negligence for drivers legally defined and when is a driver not responsible for damages he or she causes?
There are many instances in which a driver's negligence causes property damage, personal injury, or even death. In these cases, the driver is considered "at fault," meaning that although he or she may not have intended to do any damage, the risks involved in his or her behavior should have been foreseen. In such cases, damages can be recovered from the at-fault driver and/or that driver's insurance company.
In some situations, however, the driver is not held accountable for damage or injury caused by his or her actions. Typically, this is when the damages occur as a result of what is termed an "Act of God" or a "sudden medical emergency." An "Act of God" usually refers to a weather condition or an event of nature, such as a tree spontaneously falling, over which the driver has no control.
A medical emergency, on the other hand, occurs when a person is physiologically overcome, another event over which he or she has no control. A driver who has a sudden heart attack, for example, and, as a result, loses control of the vehicle, plowing into a store front or home, cannot usually be held responsible for resulting occurrences, even catastrophic ones. Sudden medical emergencies that have been used as a defense in vehicular accidents include:
- Heart attacks or stroke
- Diabetic events
- Medication reactions
- Psychiatric delusions
Syncope, an idiopathic loss of consciousness (fainting), as well as episodes of severe sneezing or severe pain, have also been defined as "medical emergencies."
Nonetheless, drivers are expected to exercise reasonable care in the operation of their vehicles. This includes not only following the rules of the road and maintaining their vehicles so that they operate safely, but exercising reasonable caution relative to their own health conditions. There are situations in which, although the defendant driver has suffered a medical episode that resulted the accident, the driver can be held responsible for not taking appropriate precautions. These include situations in which the driver:
- Had been medically advised not to drive
- Had experienced similar episodes before
- Felt ill, but continued driving
- Took medication known to interfere with driving ability
It is possible to fake a medical episode, or to use a made-up medical episode as a defense, but it is very difficult to prove that such a scam has taken place, While whether a driver has suffered a heart attack can be proved through medical testing, an episode of syncope is almost impossible to substantiate or disprove. In New York State, the determination of negligence is made in terms of "foreseeability." If a driver has suffered fainting spells or hypoglycemic episodes previously, for instance, that driver may be held responsible for not foreseeing the reasonable possibility of their recurrence.
If you are facing charges related to a vehicular accident in upstate New York State, whether or not there are medical issues involved, or if you require skilled legal services for another reason, please contact one of our highly experienced criminal defense attorneys at Ianniello Anderson at 518.350.7755.
Friday, September 18, 2015
How Important Are Possible Inconsistencies in Defending a Criminal Case?
The double murder trial of Andre Jenkins, now awaiting the jury's decision in Lockport, New York, is a case with a number of pertinent unanswered questions. The defense has argued that the prosecution has rushed to judgment, not giving sufficient weight to these questions, nor to the possible alternative scenarios that may explain them.
The case centers on the murder of two members of the Kingsmen Club, a motorcycle biker organization. Jenkins, who allegedly came up from Florida to commit these murders, has been described by the prosecution as an enforcer for the biker organization, allegedly assigned to kill the two men who were apparently positioned to defect to a group of Kingsmen's rivals. He is facing charges of murder in the first degree, two counts of murder, and one count of criminal possession of a weapon.
Although the prosecution had in its arsenal photos of the crime scene, the testimony of a jailhouse informant, photos of the crime scene, and video taken outside the Kingsmen club, the defense has repeatedly brought up a number of unanswered, somewhat disturbing questions, including:
- Why is there no physical evidence linking Jenkins to the crime?
- Why were some individuals present at the crime scene not tested for DNA or gunshot residue?
- Why were there inconsistencies among the testimony of several witnesses?
- Why was there no grass found on the recovered gun and magazine even though the grass had been cut after the weapon was supposedly tossed into the grass?
There is clearly cogent evidence on both sides of this case, but, since it is the job of the defense attorney to create enough doubt in the jurors' minds to enable them to reach a not guilty verdict, questions like these have great significance.
If you, or someone close to you, has been accused of a crime, it is important to engage the best possible lawyer available. Our criminal defense attorneys at Ianniello Anderson have diligently served clients in Albany and throughout the upstate New York area for over 40 years. We look forward to the opportunity to serve you with our customary skill and concern and can be reached at 518.350.7755.
Monday, September 14, 2015
Do witnesses provide sufficient evidence for conviction in criminal cases?
Forty-two-year-old Nigel Smith has been found guilty in a homicide case that took place in 2013. Smith who faced six counts -- one count of second degree murder, one count of robbery in the first degree, two counts of robbery in the second degree, one count each of criminal trespass and resisting arrest -- has been convicted of five of the six charges, including second degree murder. Jurors assigned to the case deliberated for approximately 5 hours. At two points during their deliberations, they asked for clarifications, first of the definition of the second degree murder and robbery charges, and later for a read-back of testimony from a witness.
The witness, presently an inmate in the Broome County Jail, testified that the defendant had confessed to being involved in the murder while the two were incarcerated together in 2013. Smith is the second person to be accused of this crime. Prosecutors argued that the victim was a known drug dealer and that both defendants, Smith and a man named Calvin Bell, believed the victim had sexually assaulted Bell's girlfriend and were seeking revenge.
Calvin Bell was found not guilty of the crime this past June while Smith was still at large. Three months after the alleged homicide took place, Smith was arrested following a car chase. In spite of the evidence against him, Smith's attorney has maintained that the credibility of the witness, a convicted criminal, was questionable. Now that he has been convicted, however, Smith faces 25 years to life in state prison.
are not always as clear-cut as they appear and every defendant is entitled to a vigorous defense, no matter what the circumstances or the weight of evidence. If you face criminal prosecution and want the best defense possible, by all means contact Ianniello Anderson where experienced attorneys have been providing excellent legal services for over 40 years. Serving clients throughout the eastern upstate New York region and can be reached at 518.350.7755.
Sunday, August 30, 2015
In a strange twist of fate, victims of two scam artist brothers-in-law may be able to recoup their losses. Fooled into investing $96 million into what they believed to be appropriately managed funds, the victims were unwittingly supporting Panoramic View Resort and Residences in Montauk, Long Island. At the time the investors were scammed, the property was languishing and the con artists were attempting to bolster its value by diverting funds to maintain and improve the property.
One of the brothers-in-law, Brian R. Callahan, presented himself as a hedge-fund manager. His sales pitch, which was obviously very successful, convinced 45 potential clients that investing with him would be both wise and lucrative, since the funds he represented were well-known and safe. He further stated that his clients would have the advantage of investing in liquid assets, from which money could be withdrawn, if necessary, with only a few days notice. Ironically, as sometimes happens, unsuspecting clients, who wanted to avoid the risks of the stock market, felt safe investing with Callahan.
Amazingly, the swindlers, so adept at losing large quantities of other people's money, turned out to have a flair for, or just good luck with, real estate. The brothers-in-law themselves did not profit from their investment in Panoramic View, since not long after they bought the resort, the stock market collapsed and they wound up in terrible debt. By two years after their arrest, however, property values had soared once again so that now the Montauk property is extremely valuable.
Obviously, this turn of events is a rarity, but, at this point in the case, the federal government has the opportunity to sell the property at a high enough price to at least partially reimburse the investors who were originally defrauded.
If you have any questions or concerns regarding real estate investments or real estate law in general, please don't hesitate to call on the dedicated and trustworthy attorneys of Ianniello Anderson, serving clients in Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entirety of Northeastern NY for over 40 years. We can be reached at (518) 350.7755.
Sunday, August 30, 2015
Is It Possible to Mount a Legitimate Defense for a Crime Perceived as Particularly Heinous?
Because of the frequency with which intra-familial crimes occur, the unthinkable has become hard to deny. A few days ago, an inconceivable act once again occurred, this time in Nassau County, New York. As far as the case has been deciphered so far, a middle-aged daughter with a history of serious psychiatric illness stabbed her 79-year-old mother to death with a kitchen knife. The deadly argument apparently concerned the daughter's ongoing medical problems and treatment. This is not an uncommon cause of family disputes, particularly where mental illness and/or substance abuse are involved.
The victim, described as a "loving grandmother and neighbor" died of her multiple stab wounds .
The daughter, an attorney herself, who does not have any criminal background, called the police to report the assault and was later taken into custody. A weapon was recovered at the scene and an autopsy is being performed.
The daughter, the mother of three college-aged children, has been described by her attorney as "very distraught" and "a very decent person" in spite of the terrible act she committed. No doubt the daughter's extensive and serious psychiatric history will be part of her defense.
Criminal behavior is, unfortunately, part of life, whether committed by strangers or family members. If you or someone close to you has been charged with a criminal offense, please contact our caring and competent attorneys at Ianniello Anderson where we have been successfully defending clients in Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entirety of Northeastern NY for over 40 years. We can be reached at (518) 350.7755.
Friday, August 14, 2015
Can you serve hard time for a minor crime?
In 1994, responding to fears of increasing crime and the danger it presented to American society, Former President Bill Clinton enacted a law that was instrumental in lengthening criminal sentences and ushering in what, his wife, Hillary Clinton now refers to as "the incarceration generation." Designed to keep citizens safer, Bill Clinton's anti-crime legislation resulted in the imprisonment of those convicted of even minor crimes, for what he now admits was "way too long." He now expresses regret that the legislation has led to skewed, overly lengthy criminal sentences.
In recent years, it has become achingly apparent that the criminal justice system in this country needs a major overhaul and Mr. Clinton is now pushing for reforms promised by Hillary in her campaign for President.
Mr. Clinton now admits that he went overboard in his attempt to be tough on crime and to promote a compromise with the Republicans, who were adamant about lowering crime rates. The steps Mr. Clinton took in his landmark legislation included:
Though crime rates did come down after the legislation was enacted, representing the sharpest drop and the first eight-year decline in crime history, reducing a wave of gang violence that had been terrifying communities, longer prison sentences under both state and federal law resulted. According to Bill Clinton himself, too many low-level criminals were incarcerated for extended periods of time. In his admission, he stated that, "I signed a bill that made the problem worse."
In 2015, there is nearly twice the number of prisoners in this country than there was when Mr. Clinton took office. The 2.2 million people now behind bars in the United States represent a widely skewed percentage of Americans compared to prison populations in other countries. Although this country contains only 5 percent of the world’s population, it has 20 percent of the world's prison population. There is a groundswell of liberal and conservative support for the creation of bipartisan legislation to reduce imprisonment of nonviolent offenders in the United States.
If you or a member of your family is dealing with an issue of arrest or imprisonment, the capable and compassionate criminal defense attorneys of Ianniello Anderson are available to assist you. Serving clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy, and the entire Northeastern NY areas at (518) 350.7755.