Tag Archive for 'new york'

NY Court Protects Rent-Controlled Leases from Bankruptcy

Most laws favor homeowners over renters. This is obvious from even a cursory glance at bankruptcy statutes or the federal tax code. Tenants are often hesitant about filing bankruptcy because they fear losing their homes. A recent New York court case could change that.

NY Court Protects Rent-Controlled Leases from BankruptcyMary Santiago-Monteverde was not very happy in 2001. She had incurred heavy credit card debt after her husband passed away from extensive health problems. Santiago-Monteverde filed for bankruptcy. Shortly after, Santiago-Monteverde’s landlord approached the bankruptcy trustee and offered to buy the lease of the apartment she was living in. Santiago-Monteverde had lived in the East Village with her late husband for over forty years and she was not going to give it up without a fight.

Her attorneys claimed the apartment was a form of “local public assistance benefit” and thus legally exempt from the bankruptcy proceedings. Bankruptcy and District court initially ruled against the tenant. In a surprising 5-2 decision though, Santiago-Monteverde won on appeal. In New York, rent-controlled leases can be shielded from bankruptcy.

What Does All This Mean?

When a debtor files for bankruptcy, the bankruptcy court appoints a trustee to manage the debtor’s assets. In many cases, the trustee will sell the debtor’s assets to pay off the debts. However, federal law exempts certain property from bankruptcy. Some states offer their own exemptions. If a property is exempted, it means the trustee cannot sell the property and the debtor gets to keep the property, even after the bankruptcy is over. Property is often exempt from bankruptcy so that the debtor can start fresh after bankruptcy is over.

Since homes are often exempted, homeowners may file bankruptcy knowing that part or all of their home equity will be safe. Tenants, on the other hand, have no such luxury. Leases are rarely exempted and it is not usual for landlords to buy back leases, like Santiago-Monteverde’s landlord did. Debtors who rent a home rather than outright purchase a house rarely file for bankruptcy, even when bankruptcy is financially smart.

Santiago-Monteverde’s case found a way around this problem. Even though leases are not exempt, public assistance programs, such as food stamps, are exempt. Public assistance is exempt so that if the debtor has low or no income, the debtor won’t starve. Santiago-Monteverde makes it so that rent-controlled housing is public assistance. In the court’s collective minds, the purpose of rent control is to help low-income peoples, the same purpose that other public assistance programs serve.

Future Consequences

Although this case balances the rights of homeowners and renters, it also opens the doors for further bankruptcy exemptions. If rent control is public assistance because it is designed to help low-income families, what else could qualify as a public assistance exemption? What about income from minimum wage jobs? Or government scholarships and school vouchers?  If Washington bails out a large corporation like GM, and the justification is to prevent workers from losing their jobs, does that make government bailouts public assistance programs?

I applaud that tenants can keep their homes through bankruptcy, but this kind of decision seems like it should come from legislators rather than judges. The latter often cannot control where the slippery slope will end and this case could open doors that judges cannot foresee opening.

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New York Criminalizes the Use of GPS for Stalking People

A new law was recently implemented in New York that criminalizes a use of GPS for the purposes of stalking.

GPS stalkingFor the law to apply, the person being followed informs the stalker that such behavior is unwelcome. This requirement conforms to New York’s stalking law, which requires people to let a suspected stalker know that certain kinds of conduct are unwanted.

The Reason for the New Law

The new law, called Jackie’s Law, was implemented in response to the murder of Jackie Wisniewski by her boyfriend two years ago at the Erie County Medical Center. Prior to her demise, Wisniewski discovered a GPS device that her boyfriend had put in her car. However, law enforcement officials were unable to prosecute him for stalking her with a GPS because under the state’s stalking laws, such conduct was not forbidden.

Only if the alleged stalker is told that his or her behavior is unwelcome, and the stalker persists in tracking the victim, are the police then able to charge the person with stalking in the fourth degree. Jackie’s Law is significant in that it removes the burden of filing charges from the victim, and places it upon the police. In so doing, it offers some protection to victims of domestic violence and other types of violence.

Other Uses of GPS Tracking

Not only has GPS technology been used to track victims of domestic violence, but it has also been used by political opponents to discover whether one was residing in a certain political district.

Unfortunately, tracking someone with a GPS device without that person’s knowledge is still legal. And if that person discovers the device, but does not inform the perpetrator that such conduct is unwelcome, then the use of the GPS is still legal.

Potential Changes in the Law

According to recently proposed federal legislation, secretive use of GPS trackers may also soon be criminalized, with the exception of such use by the police, parents of minors, and in certain cases of patients afflicted with dementia or similar illnesses.

Although the new law is an improvement over the previous one, the onus is still on the victim to confront and inform the perpetrator that such behavior is unwelcome. But if the victim is so fearful of the stalker that he or she would prefer to have no contact with him or her, then perhaps the victim could relay those fears to the police, who could then act as the victim’s messenger, and inform the stalker. Then, if the stalker still engages in GPS tracking, the police would be free to press charges.

New York Legalizes Medical Marijuana (with Strings Attached)

New York became the 23rd state to legalize medical marijuana when Governor Andrew Cuomo signed the Compassionate Care Act (CCA) into law. In 2015, New Yorkers who suffer from cancer, AIDs, ALS, Parkinson’s disease, multiple sclerosis, spinal cord damage, epilepsy, and inflammatory bowel disease can use marijuana to help treat their conditions.

medical marijuana in New YorkHowever, the CCA has a number of differences which make it unique compared to medical marijuana programs of other states.

  1. The Department of Health has the power to price the medicine purchased. New York will start with a 7% tax.
  2. Even qualified patients aren’t allowed to smoke marijuana. Patients will be forced to mix marijuana with food, ingest pills, or breathe vapors instead. The only other state which legalizes medical marijuana but prohibits smoking is Minnesota.
  3. New York patients can’t grow their own marijuana. They must buy it from a state regulated dispensary. Finally, physicians who prescribe more than 2.5 ounces will be subject to penalties.

In short, New York will have the most regulated medical marijuana program in the country. Governor Cuomo and state legislators believe the law strikes an appropriate balance between medical need and public health. “Public health” means making sure people don’t abuse marijuana or use it as a gateway drug to more dangerous substances like heroin.

The problem is that the rules don’t correlate with public health. The smoking prohibition looks like a means to protect public health, but bans on tobacco smoking in public areas could easily be extended to marijuana. The ban on smoking will not guard against second-hand smoking. Forcing patients to ingest rather than smoke marijuana will cause patients to spend more money on the drug.

It is also difficult to understand how a tax would prevent addicted potheads from spending all their cash on weed. Given that patients must buy from state approved dispensaries, the CCA looks more like a way for the state to make money than to help sick patients. Of course, any amount of medical marijuana is better than none.

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NY Mayor Bloomberg’s Next Target: Cigarette Displays

New York Mayor Bloomberg suffered a defeat when his large soda ban was struck down by State Supreme Court Judge Tingling. The mayor was not deterred by the ruling though, because he now seeks a ban on displays of tobacco products in retail stores. The reasoning behind the proposal is that if children cannot see the tobacco products, they will not be tempted to buy them. The ban would also create a cultural norm. By keeping cigarettes out of sight, smoking would no longer seem normal and children would not seek to emulate such behavior. If a store is found with tobacco products on display, the store could be fined hundreds of dollars. Higher fines would be levied for repeat offenses, with fines going into the thousands.

Given how addictive tobacco is, it would be good public policy to keep children away from cigarettes. The proposed ban is redundant though. Stores are already forbidden by state law from selling cigarettes to children. Since a young person cannot legally buy cigarettes from stores, keeping them out of sight would not be deter anyone under the age of eighteen from asking for a smoke. Mayor Bloomberg would say that the point of the ban is not to keep children from buying tobacco, but to discourage children from smoking when they can legally buy the cigarettes.

Even from that standpoint though, the law does not make sense. Pornography, guns, and liquor are often kept out of children’s sight, but that does not prevent young adults from pursuing them. Indeed, hiding these vices might actually make them more attractive to young people. Children have an unfortunate need to be viewed as “grown up,” and vices which are hidden from youth often become a status symbol of age to the young. Mayor Bloomberg’s proposal would make the problem worse, not better.

The Mayor’s law might pass if it were simply redundant and ineffective. The proposed ban also carries a free speech problem though. Although displaying a product is not the first thing a person might consider speech, making a product visible does mold a store or shop’s public image. Free speech is a citizen’s right to express themselves. Stores and other businesses have a right to express what they wish to sell and the right to present themselves to the public in any manner they wish. Of course, the display ban probably would not cut into business revenue since addicts will seek out tobacco like a man dying out hunger will seek out food. However, individual rights have never been tied to profits. Rights are an end, not a means to more money.

Mayor Bloomberg’s large soda ban was struck down by Judge Tingling partly because it violated the separation of powers. The soda ban was mainly a creation of the Board of Health, an executive committee appointed by the Mayor of New York. The New York City Council, the city’s actual legislative body, needs to be more involved in the process more. The mayor might not be fond of individual rights, but ignoring the legislative process will harm both businesses and children.

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New York Police Officer Allegedly Engages in Cannibalism Conspiracy

Surveys often find that lawyers are pessimistic people. This is not a surprise given that the law often regulates the lowest of society’s instincts, so each case will often seem morally worse than the previous one.  At the same time, American society places a high value on freedom. The price of freedom though is allowing morally questionable actions to pass without judgment, even if morally questionable actions come very close to crossing the line from morally questionable to legally outrageous.

Gilberto Valle puts these principles to the test in a shocking story from New York. Gilberto Valle was a member of the New York Police Department until his wife reported him to the FBI. There are many possibly embarrassing things that a wife does not want to find on her husband’s computer. Dating websites and pornographic websites can break a marriage, but conspiring to kidnap, rape, kill and eat women is certainly grounds for more than a divorce. After Valle was arrested and suspended from his duties as a police officer, the FBI searched his apartment and found a list of women Valle planned to eat. Investigators also found a list of items the conspirators needed to perform the acts, as well as plans for meal preparation. The FBI also found internet chat logs about rape and cannibalism, including discussions to sell another conspirator’s young stepdaughter as a sex slave.

court sketch gilberto valleDistrict Court Judge Gardephe found sufficient evidence to allow the case to proceed to a jury trial. The FBI, upon further investigation, discovered that Valle had become acquainted with several of the women on his list. He had lunch with one of them, and a few claimed that Valle had stalked them using his patrol car. Prospective jurors were shown shocking images of some of the websites Valle frequented, including a picture of a young woman nude, bound, and gagged on a serving plate (Warning: graphic image attached to that link). Jurors who were too disgusted by the images were excused from jury service.

As bizarre as this case is, Valle is a textbook example of an incomplete or inchoate crime. Inchoate crimes are crimes which are planned out by the suspect but are not actually performed yet. Inchoate crimes are the law’s recognition that law enforcement should not have to wait for the suspect to actually harm someone before law enforcement can arrest the suspect. The prosecution must argue that the defendant intended to carry out and would have carried out the crime but for outside intervention.

The defense attorney has to counter that the defendant was not even close to carrying out the crime or that the defendant had no intention of carrying out the crime. According to defense attorneys, inchoate crimes lead to the worst kind of criminal cases: prosecution of otherwise innocent people who have not committed any crimes.

The most significant aspect of inchoate crimes though is the law’s ability to regulate the thoughts and impulses of individuals. In this case of course, Valle’s thoughts and impulses are grotesque. The purpose of the law though is not to regulate every thought the population may have. The law should only ensure that people do not hurt each other. In a case like this, it is easy to lose perspective that Valle’s sexual fantasies are not on trial. The real issue of this case is whether Valle and his co-conspirators online actually intended to carry out their plans. The latter is about protecting society while the former would represent a significant change in the minimum standards set out by the law.

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