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SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
right to counsel - right to counsel
SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012)
No. 11-94
Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011
As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more...
fifth amendment - fifth amendment
DORSEY v. U.S., 11-5683 (U.S. 6-21-2012)
Nos. 11-5683, 11-5721
Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one...
fifth amendment - fifth amendment
FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012)
No. 10-1293
Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011
Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the...
right to counsel - right to counsel
SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012)
No. 11-1101.
June 21, 2012.
This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the...
rosario - rosario
PEOPLE v. STEWART, 5745-1996 (5-31-2012)
5745-1996
May 31, 2012
In June, 2000 defendant filed a habeas petition in the Eastern District of New York, raising the same claims that he had raised in the Appellate Division, as well as the failure of the People to have provided him with a transcript of the 911 tape-recording, which the People apparently had in their possession as of 1996. (Defendant had gotten the copy of the transcript pursuant to a FOIL request, and had in fact appended it to the letter he wrote to the Court of Appeals when he asked them to consider his... In January 2002, the defendant asked the District Court to hold the habeas petition in abeyance to allow the defendant to exhaust his state claim that appellate counsel was ineffective for failing to raise the Brady/Rosario issue relating to the People's handling of the transcript. In February 2002, the District Court...
fourth amendment - fourth amendment
ARIZONA v. U.S., 11-182 (U.S. 6-25-2012)
No. 11-182
Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011
In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ...
fourth amendment - fourth amendment
DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012)
No. 11-1740-cv.
June 25, 2012.
Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting...
rosario - rosario
ORANGE TEA, INC v. AMERICAN WILD GINSENG CENTER, INC, 4175/12 (6-4-2012)
4175/12
June 4, 2012
In this action for declaratory judgment and injunctive relief, plaintiff Orange Tea Inc. (Orange) seeks an order granting a Yellowstone injunction prohibiting the over tenant, American Wild Ginseng Center Inc. (Ginseng) from terminating the sublease while this action is pending, tolling plaintiff's time to cure any defaults of the lease, and granting a preliminary injunction enjoining Ginseng from terminating the sublease and commencing an action to recover possession of the leased premises. Orange ... Orange entered into a commercial sublease and rider agreement with Ginseng on January 28, 2011, whereby it leased the space identified as Counter 1 within a mall located at 40-10 Main Street, Flushing, New York. The sublease describes the rented premises as "approx. 96 net sq. ft., immediately ...
rosario - rosario
POLUBOCZEK v. P.C. RICHARD & SON, 16411/10 (6-7-2012)
16411/10
June 7, 2012
This is a negligence action by plaintiff to recover for personal injuries sustained on May 5, 2009, when he allegedly was caused to slip, trip and or fall due to an alleged defect in the sidewalk in front of 3518 Steinway Street, Astoria, New York. The property is owned by King Kullen and subleased to PC Richard. PC Richard moves to vacate a Notice to Admit and for a protective order as to the same. King Kullen moves for summary judgment in its Page 2 favor or, alternatively, for summary judgment on its... John Bogdanos testified on behalf of PC Richard as follows: he is the general manager of the PC Richard store in Astoria. At the time of the accident, a portion of the sidewalk abutting the premises was raised and cracked. This condition developed over a period of years due to the growth of a nearby...
fourth amendment - fourth amendment
IN RE DARRYL C., 6253 (1st Dept 6-26-2012)
6253
Decided on June 26, 2012
"Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety?
fifth amendment - fifth amendment
NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012)
Nos. 11-393, 11-398 and, 11-400
Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011
Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the...
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