Blog

Ann Givens A Roslyn Heights man will serve 1 1/3 to 4 years in prison for causing the death of his friend in a 2006 car crash, his lawyer said yesterday. Andrew Dong, 20, pleaded guilty to second-degree manslaughter for causing the death of his friend, Fidel Alincastre Jr., 18, of New Hyde Park, Dong’s attorney, Todd Greenberg of Forest Hills, said. Nassau County Court Judge George Peck granted Dong youthful offender status, which means his record will be sealed. Because he is a youthful offender, prosecutors did not comment on the case. Police said Dong, driving north on Shelter Rock Road in August 2006, lost control of his car, striking the curb and then a utility pole. Alincastre, a passenger in Dong’s 1999 Honda Civic, was ejected from the vehicle and pronounced dead at the scene, police said. Dong also was thrown from the vehicle. “This is a young man who lead an exemplary life, but made a stupid mistake,” Greenberg said.

After a trial that spanned approximately two weeks a Queens Family Court Judge acquitted a 15-year old teen of Robbery and Assault charges. The Juvenile allegedly committed the robbery on February 8, 2008 when he, and at least nine other persons, approached the Complainant, assaulted him and took his cell phone. Attorney Todd Greenberg argued a classic mis-identification case. Cross-examination of the Complainant, as well as an alleged eye-witness Security Guard, established that the Security Guard actually never saw the robbery and the Complainant saw the Juvenile, not at the time of the robbery, but shortly thereafter and only saw the side of the Juvenile’s face. Further cross-examination revealed that the perpetrators of the crime were wearing “Hoodies” which would further hinder any identification. At the end of the case the Queens Family Court Judge complemented Mr. Greenberg for his presentation and defense of the Juvenile in this case. All charges were dismissed and the Juvenile released from custody. A co-defendant pled guilty prior to trial.

by Robert E. Kessler May 30, 2008 Careful with those Trojan brand condoms from the discount store. They may not be the real thing. Same with the Barbie doll and the Louis Vuitton handbag. In raids in the metropolitan area yesterday, federal agents arrested at least eight people and charged them with heading a counterfeit products ring. Authorities say the ring has been smuggling into the country and then distributing massive quantities of fake brand-name goods manufactured in China, including Apple iPods, Major League Baseball and National Football League caps and Marvel comic books. The counterfeits, which included millions of the phony Trojans, were sold for the past three years mainly in small discount stores in the area, as well as elsewhere in the country, including Texas and Virginia, according to court documents. A spokeswoman for Church and Dwight, the company that manufactures the legitimate Trojan condoms in the United States, declined to comment on whether the counterfeit Chinese condoms could fail to prevent pregnancies or the spread of sexually transmitted diseases. But a source familiar with the federal investigation said that while the counterfeit condoms were of inferior quality, samples had been tested and they were no riskier to use than legitimate ones. The packaging of the Chinese condoms is almost identical to the legitimate ones, except that the counterfeit packaging is plastic, while the legitimate product is packaged in aluminum foil, said another source familiar with the investigation. “They spent all their money on printing,” said the source. One of the raids yesterday was carried out by both agents of U.S. Immigration and Customs Enforcement and the Food and Drug Administration at 18-28 Troutman St. in Ridgewood, Queens – a building used by the ZX Trading Co. Two of the owners of ZX Trading – Lin Hu and her brother, Jian Hu – were among those arrested on charges of selling counterfeit goods. They were arraigned without entering a plea before U.S. Magistrate Michael Orenstein in the federal court in Central Islip. He released them pending future appearances. Their attorney, Todd Greenberg of Forest Hills, said they were both not guilty. The assistant U.S. attorney prosecuting the case, Charles Kelly, declined to comment. Those arrested face up to 10 years in prison if convicted. NOT KEEPING IT REAL What’s real? According to federal authorities, not some of the following products from China: Millions of Trojan brand condoms Apple iPods Louis Vuitton handbags Barbie dolls Caps for Major League Baseball and National Football League teams Marvel comic books

As a result of years of hard work in three separate cases, legal victories were obtained with two complete dismissals of Driving While Intoxicated Criminal charges and a dismissal of an alleged Refusal to take the Breath Test at the Motor Vehicle Bureau. In case number one (1), the Defendant was charged on October 30, 2010 with Operating a Motor Vehicle While Intoxicated. From the outset, the DWI attorneys at Addabbo and Greenberg argued that there was simply no evidence of operation and intoxication. On December 15th, 2011, the District Attorney stated, on the eve of Trial, that they were dismissing the case because they could not prove guilt beyond a reasonable doubt— exactly what the defense position was from the beginning. In case number two (2), the Judge dismissed all Driving While Intoxicated charges pursuant to the Defense Motion that the Complaint was insufficient as a matter of Law and based on hearsay. In case number three (3), after a Refusal Hearing, DWI defense attorney Todd Greenberg moved the Administrative Judge to dismiss the Administrative charges on the ground that the police officer failed to establish “reasonable cause” to believe the Defendant was driving while intoxicated. Once again, the best possible results were obtained in a DWI case based upon the knowledge and experience of the DWI attorneys at Addabbo and Greenberg

On April 18, 2008, a Jury acquitted a Defendant charged with Driving While Intoxicated, Driving While Impaired and Disorderly Conduct. The Police alleged that the Defendant stopped at a Stop Sign and then rolled into the intersection and stayed there for 30 seconds ignoring a Police order to move. The Defendant exited his vehicle in a belligerent manner and, according to the Police, stated “I wasn’t driving”. The police testimony consisted of two Police Officers who contended that the Defendant came out of the driver’s seat, unsteady on his feet, with a strong smell of alcohol on his breath and blood-shot eyes. The Defense produced a witness from a home in the neighborhood that disputed the Police account and stated that Defendant’s car was actually double-parked when the Police arrived and the Defendant was outside the vehicle. The Defendant refused a Chemical test of his blood at Central Booking and a videotape was taken. Although the Defendant was agitated on the tape, Attorney Todd D. Greenberg painted out to the Jury that his eyes were not blood-shot, he was steady on his feet, and his speech was not slurred. The videotape was quite unique: it showed the Defendant with his pants around his ankles. In opening statements, the District Attorney suggested that the Defendant was so drunk he could not pull up his pants and told the Jury that the Defendant was “caught with his pants down”, On cross-examination, the Defense established that the Defendant was wearing baggy pants, the Police took his belt causing his pants to fall, and, because the Defendant was belligerent, he was hand-cuffed behind his back and could not pick-up his pants. Apparently, it was the District Attorney who was “caught with his pants down” and not the Defendant based upon the acquittal.

On February 6, 2008 all criminal charges of Assault were dismissed against the client of Addabbo & Greenberg and his records were sealed. The Defendant was originally charged on April 15, 2007 with an Assault allegedly arising from a dispute over a parking spot. It should be noted that the Defendant absolutely denied his involvement and an Alibi defense was prepared for trial. During Motion practice, after extensive investigation, it was discovered by Attorney Todd D. Greenberg that there was a photographic identification procedure utilized for which the District Attorney failed to give proper written Notice under the Criminal Procedure Law. A Motion to preclude any identification testimony at the trial was filed and, after oral argument, the Judge granted Attorney Greenberg’s Motion and precluded the District Attorney from offering any testimony from any witness who viewed a photograph of the Defendant of which the Defense was not informed. After the ruling, the District Attorney could not proceed and voluntarily dismissed all charges. Although Addabbo & Greenberg was ready to proceed to trial with a strong defense, a Motion based on Legal Principles caused the dismissal of all charges and a trial was not necessary.

‘Implicit’ Provision in Joint Custody Pact Held to Restrict Move Jill C. Stone, Esq. of Addabbo & Greenberg is quoted in the article by Vesselin Mitev A relocation petition filed by the mother of a 7-year old boy after she moved him from Long Island to New Jersey without consulting his father was barred by an “implicit” restriction in the couple’s joint custody agreement, a Family Court judge has ruled. In Thomas H. v. Christine R., V-06452-04/07A, Judge Andrew Tarantino of Suffolk County dismissed the mother’s after-the-fact petition to authorize her move from Commack to Mountainside, N.J. – a distance of 86 miles. The case illustrates a common scenario facing parents, practitioners and Family Court. “Relocation cases have increased exponentially and they are the major cases involving custody contention”, said Andrew Shepard, a Hofstra Law School professor who heads the Center for Children, Families and the Law. “Often, after a divorce one of the parties will remarry or find another job and move, and, and that’s where the legal system begins to draw a line in that parent’s can’t make unilateral decisions.” Here, the mother and father had reached a joint custody agreement on Dec 7, 2004. Ms. R., the mother, was named as the residential or custodial parent, but the father, Mr. H., was granted visitation on Wednesday nights and alternate weekends. The parties followed the agreement until Aug. 12, 2007, when Ms. R., a month after her remarriage to a long-time resident of New Jersey, David E., sent an email to Mr. H. stating that “effective immediately” their child, E.H., would be “residing in New Jersey”. Mr. H. then requested from Suffolk County Family Court an order granting him sole custody of his son on the found that she had already moved to New Jersey. Ms. R. then filed a petition seeking authorization for the move. Judge Tarantino then held a hearing on the matter. According to the judge’s decision, Ms. R. picked up E.H. while he was visiting his father and drove directly to New Jersey, without “even allowing him to say goodbye to friends from his old residence. She said their agreement lacked an express “radius” clause like those included in many agreements prohibiting her from moving out of state with her son. Moreover, she argued that it gave her final decision-making authority in the event of disagreement between her and Mr. H. on raising their son. Judge Tarantino acknowledged that the agreement lacked an express radius clause prohibiting unilateral moves by the mother without the court’s permission. But he said the court had to weigh the move against the existence of a joint custody agreement that established a specific visitation schedule. “Joint custody entails more than just visiting with the child, it is assumed a joint custodian will be involved in all aspects of the child’s life, a task that would be extremely difficult if the child resides hours away”, wrote the judge. “Therefore, the Court finds that within the joint custody agreement, there is an implied radius clause that restricts the residential parent’s ability to relocate without permission of the noncustodial parent or the Court.” Judge Tarantino also rejected Ms. R.’s argument that the agreement gave her final decision-making authority. He said that clause is meant to be triggered when the two parents cannot agree on an issue concerning the child “after discussing that issue.” Here, he said, there was no discussion despite the fact that the father had tried to raise the issue in a January 2007 letter. In support of her move, Ms. R. testified that she would be able to provide a better standard of living for her son. The judge agreed that her new three-bedroom house in New Jersey was ‘clearly an improvement” over the one-bedroom apartment she and her son occupied on Long Island, but he said she had offered no evidence that comparable housing was not available on Long Island. Similarly, the judge said she had not demonstrated that Long Island schools were inferior to those in New Jersey or that her move helped her to secure a better job. Violence Alleged Ms. R. testified that she wanted to get “some space” between her son and Mr. H., whom she characterized, according to the ruling, as “a violent man with an uncontrollable temper”. She testified that in October 2001, police had to be called after a verbal altercation in the presence of the child, although no arrests were made. In November 2006, Mr. H. allegedly threatened to knock down the door to Ms. R.’s residence as the child, who was scheduled for visitation, was not ready for curb-side pickup. The police were called but no arrests were made. In 1998, Mr. H. allegedly grabbed Ms. R. by the throat during a verbal altercation, but police were not called. Finally, in April at a baseball game, Mr. H. allegedly became angered after learning that Ms. R. had left E.H. in the care of Mr. E. while on a business trip and threw a lawn chair at Mr. E. He charged the father with harassment and Mr. H. received an adjournment in contemplation of dismissal. However, Judge Tarantino said those incidents did not rise to the level of cases in which the courts had accepted domestic violence as justification for a unilateral move by one parent. He said the mother’s decision to move without warning the father hinged on one incident of alleged physical violence nine years ago, and she had been “evasive” when asked to clarify her position. At the same time, Judge Tarantino wrote, “There was little dispute that the father has been an active participant in the child’s life.” He said the testimony indicated the father was current on child support and “involved in all aspects of the child’s development.” Mr. H. went on doctor visits with the child and attended school events, daytime parent-teacher conferences and Little League games. The judge agreed that the father could not maintain this level of involvement if required to drive three to six hours round trip for every activity. Patricia A. Condon, of McGuire Condon in Huntington, who represents Mr. H., said the absence of a radius clause actually made the joint custody more restrictive. “If you move, you alter other aspects of the agreement that you had no right to alter” she said, pointing to the visitation schedule Mr. H. had with his son and the baseball games he attended. Michael N. Klar of Carle Place, who represented Ms. R. said the custody agreement between Mr. H. and Ms. R. who were never married, only obliged them to “endeavor to agree” on the education and the general welfare of the child. Mr. Klar, who did not represent Ms. R. when the agreement was signed, said he has already filed a notice of appeal. Meanwhile, Ms. R. has moved back to Suffolk County with her son. Mr. H. has requested increased visitation with his son. Paraskevi Zarkadas of Smith served as law guardian. Jill C. Stone, a law guardian and attorney with Addabbo & Greenberg in Forest Hills, who is not involved in the case, called Judge Tarantino’s decision “very significant” and relevant to problems litigants experience in Family Court. “You have a right to come to the court and get permission to move first,” said Ms. Stone, who speculated that the move was a preemptive strike against Mr. H. who was likely to disapprove of the relocation. “The Judge must determine what’s in the best interests of the child and as they had agreed to joint custody, the judge found there was an implied radius clause in the joint custody agreement,” she said. Mr. H.’s motion for sole custody is still pending.

On December 3, 2007, the Defendant, our client, was acquitted by a Queens Jury of Driving While Intoxicated and Driving While Impaired. The arresting officer testified that he pulled the Defendant over after failing to signal when the Defendant was leaving a parking spot. Although the Police Officer testified that the Defendant had blood-shot eyes, alcohol on his breath and was unsteady on his feet, Defense Attorney Todd Greenberg established that the Defendant was properly operated his motor vehicle for three blocks after the initial observation. Further, the credibility of the arresting Officer was questioned with regard to his personal opinion about drinking and driving. Significantly, on October 18, 2006, the week prior to the arrest in this case, this Defendant was acquitted by a Queens Jury of Driving While Intoxicated. (see below) This case arose when on October 23, 2006, this Defendant was arrested by the same officer who told the Defendant “Let’s see Greenberg get you out of this one”. The Verdict speaks for itself.

Our firm was retained to represent a Defendant who was charged and arrested on five separate occasions with either assaulting and/or harassing the Complainant, who was a fellow-member of Alcohol Anonymous. Our client denied the charges. There was an on-going feud between the parties and the District Attorney was adamant in its prosecution. When the case was finally marked for trial, the People were not ready on five separate occasions even though they previously stated they were ready to satisfy the statutory requirements. Attorney Todd Greenberg argued that even though the District Attorney’s stated their readiness in open court to satisfy statutory requirements, the statement was illusory, in that the People were not actually or really ready to proceed. On November 15, 2007, all charges were dismissed against out client, the Defendant and the record sealed.

By Ed Fountaine All charges against two former New York Racing Association officials indicted in the so-called “fat jockeys” scandal were dismissed yesterday by Saratoga County judge Jerry Scarano, but the case is far from over. Mario Sclafani, 50, the clerk of scales, and his assistant, retired Hall of Fame jockey Braulio Baeza, 67, are eyeing possible civil action against the prosecution and NYRA, which initiated the investigation and fired both men two years ago, for the “financial and emotional hardship” they endured, according to Sclafani’s attorney, Todd Greenberg. Sclafani and Baeza were indicted by former state attorney general, now governor Eliot Spitzer on 291 counts charging fraud, conspiracy, larceny and tampering with a sports event for allegedly allowing five different jockeys, including recently retired Hall of Famer Jose Santos and Cornelio Velasquez, who won this summer’s riding title at Saratoga, to ride above their listed weights in over 60 races from June to Dec. 2004 at Belmont, Saratoga and Aqueduct. The trial began Sept. 4 in Ballston Spa, N.Y. Last Tuesday, prior to adjournment for the Jewish holidays, the prosecution presented videotape evidence showing the jockeys weighing in at Saratoga Race Course. Testimony indicated, however, that the scale being used was not calibrated properly, as required by law. When the trial resumed yesterday, the defense motioned that the case be dismissed. Judge Scarano, over the prosecution’s objection, concurred, dropping all the charges involving the Saratoga races. Furthermore, he ruled that his court did not have jurisdiction over the charges involving the downstate races, and so dismissed all 291 counts. Because the evidence is so shaky, it is unlikely the prosecution will re-indict Sclafani and Baeza for the races at Belmont and Aqueduct. “One juror said the judge did what the jury was going to do anyway,” Greenberg said. “The methodology used by the investigators was terribly flawed and inaccurate” in that they never took into account equipment, such as the helmet and safety vest, that is not meant to be included in the assigned weight. Greenberg asserted that Sclafani and Baeza “were victims of political circumstances.” NYRA, he said, which was then under a federal indictment (since dismissed) and is seeking to have its franchise renewed, “handed them up as sacrificial lambs to the attorney general (Spitzer) to show compliance with a deferred prosecution agreement for the purpose of showing its own worthiness of a new contract.” On Sept. 4, Gov. Spitzer recommended that the franchise NYRA has held since 1955, which expires Dec. 31, be renewed for 30 years.

The Associated Press BALLSTON SPA, N.Y. – A judge dismissed charges yesterday against two former New York Racing Association officials accused of falsely reporting the weights of several jockeys at NYRA’s three thoroughbred tracks in 2004. Saratoga County Court Judge Jerry Scarano ruled the case against Mario Sclafani and Braulio Baeza was based on faulty evidence, including a scale at Saratoga Race Course that was incorrectly calibrated and videos of the scales that were unclear, defense attorney Todd Greenberg said. Sclafani, 50, of Yorktown Heights, was NYRA clerk of scales, and Baeza, 67, of Elmont, was assistant clerk of scales. They were indicted in September 2005 on 291 criminal counts, including scheme to defraud, conspiracy, falsifying business records, tampering with a sports contest and grand larceny. Baeza is a two-time Eclipse Award winner as the nation’s top jockey, a member of the Racing Hall of Fame and winner of the 1963 Kentucky Derby. “From the outset, we’d believed for the last 2 1/2 years there was not one iota of criminal evidence against our clients,” said Greenberg, who represents Sclafani. He said they were “the victims of political prosecution” and were served up by NYRA, which was facing federal charges of tax evasion and fraud. After an investigation by then – Attorney General Eliot Spitzer, the two were suspended by NYRA in early 2005 and later fired. A spokesman for NYRA said it would not comment on a legal matter. Calls to Attorney General Andrew Cuomo were not returned. Attorney Paul DerOhannesian, who represents Baeza, doubted that charges will be brought in Queens. He said the supposed evidence showed jockeys 11 pounds overweight for a race and making weight 30 minutes later. Defense information showed the same men making weight the day before and a day later at other tracks. The clerks were accused of allowing Jose Santos, Robby Albarado, Herbert Castillo Jr., Ariel Smith and Cornelio Velasquez to ride 67 times at Belmont, Saratoga and Aqueduct from June 23, 2004 to Dec. 15, 2004 although they were allegedly 7 to 15 pounds over their announced weights. Prosecutors had said the false weights cheated bettors out of accurate data to make wagers.

New York Times By Bill Finley The charges against two former New York Racing Association employees, the retired jockey Braulio Baeza and Mario Sclafani, were dismissed yesterday by a Saratoga County judge. Sclafani and Baeza, who had each worked in the jockeys’ quarters at the NYRA tracks, had been accused of allowing several jockeys to ride at weights far greater than those that were being reported to the betting public. After investigators from the office of Eliot Spitzer, then the attorney general, raided Aqueduct in 2004, Baeza, 67, and Sclafani, 50, were charged with tampering with a sports contest, scheming to defraud, falsifying business records, conspiracy, grand larceny and petit larceny. It was never alleged that the two men received bribes or were betting based on inside information, only that their actions may have misled the public into betting on horses whose chances were compromised by the overweight jockeys. Lawyers for the two men had argued that the case against their clients was flawed and that the investigators did not understand the rules of racing. In part, Judge Jerry Scarano appeared to agree. He based his ruling on his finding that the jockey scale at Saratoga, where many of the alleged infractions occurred, was old and not properly calibrated. “We felt from the beginning that the case against these two was based on faulty evidence and that they had no real evidence of any wrongdoing,” said Todd Greenberg, a lawyer representing Sclafani, the former NYRA clerk of scales. “I’m still amazed they ever got indicted. They misled the grand jury; they misunderstood the rules of racing.” The office of Attorney General Andrew Cuomo, which took over the case after Spitzer was elected governor, did not return a telephone call. None of the jockeys were charged with wrongdoing, which left Sclafani and Baeza as the focus of the case. In Baeza, who was the assistant clerk of scales, authorities had charged a Hall of Fame jockey who had won a Kentucky Derby and was a respected member of the New York racing community. “I’m very bitter,” Baeza said yesterday. “You have to realize that these people took three years of my life and deprived me of making a living. I was so embarrassed when they handcuffed me and put me in a jail cell. Never in my life had I gone through anything like that. I was humiliated, and it was all over something where I did nothing wrong.” The two were arrested at a time when NYRA was fighting for survival and appeared eager to show lawmakers who would decide its future that it was cracking down on malfeasance after several of its mutual clerks were found guilty of tax evasion and money laundering. Peter Karches, then a co-chairman of the NYRA board, acknowledged he was the one who tipped off Spitzer’s office about a possible problem with the jockeys. Karches died in 2006. Paul DerOhannesian, Baeza’s attorney, said NYRA’s situation at the time played a part in the ordeal. “They were in a battle with competing groups to retain their franchise and they had to do something to show everyone what a good job they were doing going after people who might have been breaking rules,” DerOhannesian said. “You take that and a careless investigation, and those are the factors that caused Braulio to lose three years off his life.” Sclafani said he intended to take legal action against the state and NYRA.