Category: Firm News

THE CHIEF-LEADER COBA Head Furious Over High Bail Set For CO in Shooting
Posted: Monday, January 14, 2013 5:00 pm | Updated: 10:17 am, Tue Jan 15, 2013.

By MARK TOOR

The head of the Correction Officers Benevolent Association expressed outrage last week over the $2-million bail set by a Criminal Court Judge for a CO charged with shooting his girlfriend’s ex-boyfriend.

“Never in my 20-plus years in law enforcement have I ever seen or witnessed such an outrageous miscarriage of justice in administering bail for someone accused of a crime who is a law-enforcement officer, sworn to uphold the Constitution of the State of New York,” said COBA President Norman Seabrook.

Wants Cuomo Involved

He called for action from Governor Cuomo, State Chief Judge Jonathan Lippman and Brooklyn District Attorney Charles J. Hynes.

Dale Moore, 32, who has worked for the Department of Correction for four years, was charged with attempted murder and first-degree assault after the shooting, which occurred while he was off-duty around 1 p.m. Jan. 8 in East Flatbush, Brooklyn. Some news reports characterized the situation as a love triangle.

Mr. Moore was riding in a Mercedes with his girlfriend, Correction Capt. Shalonda Smith, 36, when they encountered her former boyfriend, Kai Gates, 34, in his Cadillac SUV, according to reports. All three got out of their cars. A law-enforcement source told the New York Post that Mr. Moore warned Mr. Gates, “Don’t come any closer!” When he continued to move forward, Mr. Moore allegedly shot him twice. Authorities said Mr. Gates was unarmed. He remained hospitalized last week.

Correction Officers are permitted to carry guns but may not wear them in the jails.

Judge Sharen D. Hudson set bail at Mr. Moore’s arraignment. She was elected to Kings County Civil Court in 2011. Under the law, bail is not supposed to be a punishment for the accusation of a crime, but merely a way of ensuring that the defendant shows up in court.

Why It’s Excessive

Mr. Seabrook noted that Mr. Moore had “no criminal history, no criminal convictions, has ties to the community, was born and bred here and is authorized under the Constitution of the State of New York to possess a weapon and to protect himself after dealing with some of the most-violent individuals in the jail system, acting in self-defense and fearing for the security of his life and everyone around him.”

“A typical bail in these circumstances would be around $100,000,” said Michelle Esquenazi, president of the New York Association of Bail Bond Agents. She said that to get out of jail on $2 million bail a defendant would have to pay a bail bondsman a non-refundable fee of $150,000.

Mr. Seabrook said, “Every single day we witness these teenage terrorists who hold our communities, families and friends hostage with their illegal weapons and their disregard for public safety, including Correction Officers, EMS officers and you, the public. Yet the bail amount for these terrorists is set at a minimal amount of money, thereby enabling them to continue to destroy our city… If you count all the dead, innocent children who have been shot by their assailants in the city over the last year, those bail amounts don’t add up to $2 million.”

Calls for Special Judge

He called for Judge Hudson to be reprimanded. But that’s not all, he said, adding, “We are calling on Governor Cuomo and Chief Judge Jonathan Lippman to appoint an independent judge to deal with any further cases involving law-enforcement officers.”

David Bookstaver, a spokesman for the state Office of Court Administration, responded, “That suggestion implies that somehow law-enforcement officers should get special treatment when charged with a crime. The concept simply doesn’t make sense.”

Mr. Seabrook continued, “I’m also calling on DA Charles J. Hynes to re-evaluate the Assistant District Attorneys in his office on cases where Correction Officers are allegedly accused of a crime.”

Mr. Hynes responded, “In all cases involving homicide we oppose bail and request a remand. In this case when the defendant was arraigned, the unarmed victim, who according to three witnesses was shot twice by the defendant, was not expected to live. Our application for remand under these circumstances was completely appropriate. Judge Hudson refused our request and set $2-million bail.

“We have been informed that the victim’s condition has changed and he is likely to live. I would assume that the defendant’s attorney will make an application to review the bail conditions and at that time we will take a position on bail that we deem appropriate.”

UPDATE: New Judge Cuts Bail to $150,000

A second judge reduced bail for Correction Officer Dale Moore from $2 million to $150,000. More than 60 members of the Correction Officers Benevolent Association showed up in the courtroom at the hearing Jan. 11 to demonstrate support for Mr. Moore.

“This was the right decision that Kings County State Supreme Court Judge Sheryl L. Parker ordered in this matter,” COBA President Norman Seabrook said after the ruling. “As you have often heard me say—and it is an indisputable fact—even accused terrorists do not get slapped with a $2-million bail. This should never have happened in the first place.”

He commended Justice Parker for “her reasonable approach to the law” and thanked Mr. Moore’s attorney, Steven Isaacs of Isaacs, Devasia, Castro & Wien LLP.

Brazilian construction worker received compensation of $ 6.5 million in US

The accident occurred on January 26th, 2009, when M.V. settled wooden boards (plywood) on top of a 14 feet high ladder, in Long Island, NY

After crossing the Mexican border illegally eight years ago, the Brazilian immigrant M.V., who asked not to be identified, 42 years old, married, a native of the Vale do Rio Doce (MG), Brazil, residing in Newark (NJ), had his life again exposed to danger. On January 26th, 2009, when he was installing wooden boards (plywood) on top of a 14 feet tall ladder, strong winds pushed the board and threw him violently to the ground. The accident occurred during the construction of a house in the region of Long Island (NY).

After being treated by a rescue team, M.V. spent 8 months fighting for his life at the Mount Sinai Hospital in New York City. After 2 and half months in a coma, he was told by doctors that he had fractured his spine in several places, and thus losing the movement waist down. Once out of the hospital, he received medical care at the Physical Therapy and Rehabilitation Center in Livingston (NJ).

After more than two years fighting in the courts, M.V., represented by the law firm of Isaacs, Devasia, Castro & Wien LLP, based in Manhattan (NY), on September 29th, made a legal agreement with the insurers of the two contractors responsible for the construction and received the compensation of US$ 6.5 million. Certainly, that amount does not restore his health, but surely will ensure a comfortable and secure future for M.V. and his family in Brazil.

The also Brazilian, Ailton de Souza, representative of Isaacs, Devasia, Castro & Wien LLP in Brazil and USA, stressed the importance of consulting with qualified professionals citing an accident involving the same insurer. According Ailton, another worker also suffered an accident similar and fractured his spine, becoming quadriplegic (lost movement from the neck down). However, during the negotiations, his lawyers, who were not associated with the Isaacs, Devasia, Castro & Wien LLP, won the compensation of just US$ 1 million.

“It is very important to have a qualified professional who really fight for your rights, because it can make a big difference in the end,” said Souza.

After receiving M. V. compensation, M.V. plans to return to Brazil soon and take up residence in Governador Valadares (MG), where he will be closer to hospitals and medical services and also universities for his youngest daughter of 16 years old. Currently, he moves around with the aid of a wheelchair.

Do you have a family member who has recently been injured due to accident at work, car, subway or bus? Suffered physical harm resulting from medical errors and hospital negligence? If you need legal representation for these and other cases, call (973) 766-4792, (973) 551-5562 or (917) 551-1326 and contact a representative of Isaacs, Devasia, Castro & Wien LLP at no cost, unless you win the case or have an agreement made with the parties involved. Visit the website, in Portuguese: p.idcwlaw.com.

Judge to Westchester: Don’t Need Disability For 207-c Checks
By MARK TOOR | Posted: Monday, April 2, 2012 5:00 pm

A State Supreme Court judge told Westchester County last week that it had to pay salaries and medical benefits to injured Correction Officers without requiring them to prove they were disabled by their injuries.

The county had argued that the arbitrators’ awards in favor of the officers should be overturned because they did not say whether the officers had been disabled. It contended that the language of the law required that to collect salary and benefits under state law 207-c, an officer had to suffer not just an injury, but a disabling injury.

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‘A Novel Interpretation’

“This court disagrees with [the county’s] interpretation of the language,” Justice Sam D. Walker wrote in his March 27 decision. He said the county has “created a novel interpretation of both 207-c and the [contract] that is unsupported by judicial precedent.”

The cases involved three officers. Kali Nelson was injured when she was struck in the neck and back by objects thrown by unruly inmates. Vaughn Palmer developed back pain when he reached into a water panel to turn off running water in a cell. Jacques Kelly injured his back while helping other officers detain an unruly inmate.

“This was an attack on job-injury benefits that are statutorily and contractually provided to officers who are injured in the performance of their duties,” said Alonzo West, president of WCOBA. “The department had granting hundreds of 207-c claims without requiring the demonstration of a particular level of disability. Then all of a sudden, they decided to inject a new criteria and blatantly ignored a number of arbitration awards granting correction officers 207-c benefits. It is unfortunate that the County of Westchester thinks it can just ignore the collective-bargaining agreement, ignore arbitration awards and waste taxpayers’ money by engaging in baseless legal battles.”

The law firm that represented the Westchester Correction Officers Benevolent Association, Isaacs, Devasia, Castro & Wien LLP, said it was expecting a similar ruling in another case before Justice Walker that also involves 207-c benefits.

“For some reason the Department of Correction likes to think the parties’ collective-bargaining agreement is just a suggestion,” said Cynthia Devasia, a Isaacs, Devasia, Castro & Wien LLP attorney. “Time and time again, however, the courts and arbitrators have held otherwise. These are collectively-bargained rights and they cannot be trampled with.”

March 8, 2012

By GLENN COLLINS

It was not as if the New York health department had threatened the city’s 24,000 restaurateurs with posting a scarlet letter — or even a skull and crossbones — in their windows. But dozens of restaurant operators descended on City Hall on Wednesday to vent their ire at the letter-grading system inaugurated 19 months ago by the department to promote food safety.

A crowd of more than 300 people jammed the Council chamber and more than 80 had signed up to testify at a hearing on the city’s grading system.

“Restaurant operators express frustration, anger and confusion with an inspection system that they believe is punitive and shaming,” said Andrew Rigie, executive vice president of the Greater New York City Chapters of the New York State Restaurant Association.

Or, as Dimitri Kafchitsas put it, a food-safety visit from the city often “feels like a criminal raid and not an inspection.” Mr. Kafchitsas, president of Pan Gregorian Enterprises, a trade group of 1,000 restaurants in the five boroughs, said that in the inspection process, “there is a lack of sensitivity.”

The long-anticipated hearing had been scheduled, the Council speaker, Christine C. Quinn, said, to respond to “a wave of complaints” from restaurateurs about the A, B and C grades. Ms. Quinn cited the results of a survey by the Council, an online questionnaire posted on its Web site to seek restaurateurs’ opinions, which drew more than 1,300 completed submissions.
“A majority of restaurateurs that earned an A said that the letter-grading system was poor,” Ms. Quinn said of the questionnaires. “This isn’t about getting complaints from those who are getting B’s and C’s.”

She said 68 percent of the A restaurants reported that letter-grading had increased the cost of operating their restaurants.
“We spend all day in court trying to waive the fines,” Herb Wetanson, the owner of the Dallas BBQ restaurant chain. The inspectors, he added, “come into our premises as enemies; it’s wrong.”

But it was, however, Day 2 in the battle of the surveys. On Tuesday, Mayor Michael R. Bloomberg cited the findings of a different survey, from Baruch College at the City University of New York, showing that 91 percent of New Yorkers approve of the restaurant grading system and 88 percent consider letter grades when choosing one.

Dr. Thomas A. Farley, the city’s health commissioner, defended the Bloomberg administration when he testified at the Council hearing. “My job is to protect the health of New Yorkers,” Dr. Farley said, adding that “no restaurant likes to be inspected.”
The department, he said, was “very excited about the success of the program so far,” referring to the letter-grading system. He cited department statistics showing that 72 percent of the city’s restaurants had earned the blue A grade, up from 65 percent a year ago.
Dr. Farley added that salmonella infections, an indicator of food-borne illness, fell 14 percent during the first full year of letter grading, to the city’s lowest level in 20 years.

Ms. Quinn said she was concerned that the inspections had “become a revenue generator for the city at the expense of restaurant owners,” adding that fines had increased 145 percent since fiscal year 2006.

Dr. Farley said of the restaurants that “the worst-performing 20 percent are paying two-thirds of the fines.”

But restaurant operators in the chamber greeted parts of the commissioner’s testimony with jeers, then were rebuked into silence, and some offered their own experiences with inspectors’ visits.

Andreas Koutsoudakis, a lawyer for the Pan Gregorian Enterprises trade group, said members were concerned that inspectors abused their power, issuing punitive violations for minor infractions. One operator got a seven-point deduction, Mr. Koutsoudakis said, “for napkins that were half an inch shorter than the fork and the knife.”

Beyond that, the inspection process “is inconsistent and unfair and at times adversarial,” said Scott Rosenberg, an owner of Sushi Yasuda, a critically acclaimed restaurant in Midtown Manhattan. Restaurateurs “are playing with a stacked deck,” he said, adding, “If you follow one inspector’s admonishment, the next inspector will challenge that.”

And the hearings for challenging grades “often feel like a game of Russian roulette — if you get in the wrong chamber, you lose,” said Kevin O’Donoghue, a lawyer who represents restaurants and bars in the city.

Many council members offered specific suggestion for reforming the current system. Over all, though, said Robert Bookman, a Manhattan lawyer who represents hundreds of restaurants.

Baby, It’s Cold Inside
Monday, September 26, 2011

By MARK TOOR

The Correction Officers Benevolent Association argued that for years the Department of Correction has been giving the cold shoulder to officers’ complaints about winter temperatures as low as 27 degrees inside the Intake Center in the Bronx Hall of Justice.

Arbitrator Haydeé Rosario gave the city until Oct. 15 to install four additional heating units in the area, something the DOC and the Department of Citywide Administrative Services had already been working on. In her opinion, dated Sept 2, Ms. Rosario retained jurisdiction in case the work was not completed on time.

No Heat, No Work

If the city misses the deadline, said the union’s attorney, Mercedes Maldonado of Koehler & Isaacs, Ms. Rosario could agree to the union’s request that she put the area in the deep freeze by forbidding the city from assigning COs to work there. “That would essentially shut the building down,” she said “…That threat is still hanging over the city’s head.”

City officials say they expect to meet the deadline.

“This was the most difficult, easiest case I ever had,” Ms. Maldonado said in an interview. A department directive issued in 1995 clearly set the temperature range for the work area, she said, but “the Correction Department fought tooth and nail every step of the way.”

“This decision reflects our continued success in fighting to ensure that those who patrol the toughest precincts in New York are not treated like animals by the Department of Correction,” COBA President Norman Seabrook said in a statement. “Under my direction, COBA Sergeant-At-Arms Benny Boscio spearheaded this grievance relentlessly for over a year until a favorable decision by the court was attained.”

A Chronic Problem

Since the building opened in 2008, COs working in the Intake Center and an adjoining area called Register 22 have experienced unusually low temperatures in cold weather. The law firm said the design of the building did not take into account the cold air let in by the sally-port doors, which provide an entrance to the intake area, when inmates arrive by bus to appear in court. The inmates are logged in at the Intake Center, then searched at Register 22 before being taken to cells.

“As soon as COBA was made aware of the issue, we addressed it at labor-management meetings,” said a union spokesman, Michael Skelly. “We learned that the city was in litigation with the architects over many design flaws with the building.”

After the meetings failed to achieve progress, the union filed a grievance in June 2010. “Sadly, the Office of Labor Relations thought that the affected members could always transfer out,” Mr. Skelly said in an e-mail. “I guess they thought that since Bronx Hall of Justice is a preferred command because it is not on Rikers Island, the officers should not complain. They were wrong! COBA complained and won.”

DOC officials asked CO Osvaldo Betancourt to record the temperature at the affected areas. Mr. Betancourt reported that throughout the month of December 2010, the average reading was in the 40s in the sally ports, in the low- to mid-50s in the Intake Center and in the low 60s at Register 22.

On Dec. 27, the sally ports dipped to 22 degrees, the Intake Center to 27 degrees and Register 22 to 57 degrees. On Jan. 31, 2011, the readings were 39 degrees, 45 degrees and 63 degrees respectively. On Feb. 1, 2011, the temperatures were 32 degrees, 39 degrees and 66 degrees respectively.

The union pointed to DOC Directive 3900, which says that in its facilities “a temperature of at least 65 degrees F shall be maintained when the outside temperature falls below 50 degrees F during the usual working hours of occupants.” The exceptions are buildings in which educational, nutritional, geriatric, social, mental-health, health-care or similar services are provided. Buildings in which inmates are transferred are not exempted from the rule.

DOC: Use Different Standard

DOC Assistant Commissioner Frank Eilam, an architect, argued that the arbitrator should be governed not by Directive 3900 but by the city Building Code. The Intake Center corridor should be classified as a garage, he said, for which there is no minimum temperature. He said that regardless of Directive 3900, DOC had never meant for every square foot of its facilities to be above 65 degrees, but only those areas where staff are assigned to desk work.

On a more-practical note, he said DOC had tried to install portable electric heaters, which tripped circuit-breakers because the building’s electrical panels were all used to full capacity. At a hearing, he said an additional electrical panel had already been installed and he expected additional heaters to be in place by Oct. 15.

The Bronx Hall of Justice is maintained by the Department of Citywide Administrative Services, Sharman Stein, a spokeswoman for DOC, said in a statement. “DCAS increased the electrical capacity in the intake area of the courthouse to accommodate four additional heating units, which are now being installed by a contractor,” she said. “The work was commenced well before the arbitrator issued the ruling and will be completed by Oct. 15.”

“It’s been a long time coming, but it looks like it’s finally on track,” Ms. Maldonado said.

By Michael Wilson | July 22, 2011

The police officer, recalling that night, sounds like an actor in a fast-food commercial: “At some point, something told me, grab a Big Mac.” And so on a freezing January night in 2005, the officer, John Florio, then 39, stopped at the drive-through window of a McDonald’s in the Hunts Point section of the Bronx. He ordered the combo, a Big Mac with fries and a Coke.
“Have a nice night,” a young man in the cashier’s window said, according to Officer Florio.

“You, too,” the officer replied.

He drove away, with his dog, Dodger, a member of the Police Department’s canine unit, in the back seat. Officer Florio was heading toward Randalls Island to give Dodger a bathroom break and a run. As he drove, he bit into the burger. Top-row teeth met bottom-row teeth, and the course of two lives changed.

“I felt something hard and sharp on the left-hand side of my face,” he said on a witness stand five years later. Something had cracked: “My tooth.”

Inside the Big Mac were several shards of broken glass.

It is impossible to overstate the seriousness with which the police take any attempt to harm one of their own. To the passer-by that night, it must have looked as if an officer had been drawn and quartered in the McDonald’s: there were two inspectors, two captains, three sergeants and five detectives among other officers at 875 Garrison Avenue.

They combed the kitchen for glass and questioned employees and a manager, and they took the young man assembling sandwiches that night, Albert Garcia, then 18, into a back room, where he was questioned for about three hours. He confessed.

“I started to make the sandwich and I was about to finish it,” he wrote in a statement for detectives. “I put the little pieces of glass into the burger as a joke.” He wrote, “I didn’t know it was going to be sold to a cop.”

Then the case that seemed so open and shut just kept opening.

Five years passed before Mr. Garcia’s trial began in the Bronx, and by then he had not only renounced his confession, but his lawyer, Raymond J. Aab, had accused Officer Florio of planting the glass in his own burger to make a quick buck from McDonald’s.

The officer guessed that he bought the Big Mac around 11:30 that Saturday night, Jan. 29, 2005, but he had no receipt. He said Mr. Garcia had handed him the bag. He bit into the glass a couple of minutes later, he testified, but he did not call his sergeant until 12:07 a.m., after stopping at Randalls Island for his dog. He followed the sergeant’s command to get checked out at Long Island Jewish Medical Center, and he told doctors that he thought he had swallowed glass.

One doctor said, five months later, that he had had three foreign-objects-in-McDonald’s-food cases that week, all from different locations. Doctors found no sign of cuts to Officer Florio’s throat, and X-ray tests came back negative. But Officer Florio said he monitored his stool for several days after, going to the bathroom in a bucket and examining its contents, and he found five shards of glass that had apparently passed through him without causing injury.

Inside of two weeks, Officer Florio sued McDonald’s for $6 million. This would prove to be a tactical mistake, for the civil action allowed the defense team to question him and other police officers in depositions, a luxury unknown to most lawyers defending criminal cases. The depositions contradicted one another in various places, and a defense theory emerged: Officer Florio planted the glass and never laid eyes on Mr. Garcia that night; nor did Mr. Garcia see the officer. The cashier, a young woman, served him the burger.

But when detectives, believing Officer Florio’s story, interviewed Mr. Garcia and he appeared nervous, they pushed harder, and he confessed.

Officer Florio, the defense claimed, had learned of Mr. Garcia’s existence only many hours later, in a precinct station house, and, quite likely shocked that anyone had confessed to something that did not happen, said yes, that’s the guy.

The defense theory worked. A jury acquitted Mr. Garcia in March 2010.

Officer Florio, since retired, settled his lawsuit against the owners of that Bronx franchise restaurant for $15,000, his lawyer, Richard M. Kenny, said. It was a fraction of what he had sought.

Officer Florio declined to comment, but Mr. Kenny said: “I’ve kicked a lot of people out of my office who I believe are trying to perpetrate fraud. This guy is as legitimate a guy as I’ve ever met.”

Mr. Garcia said that he had gone on, improbably, to work at a White Castle restaurant a few months after his arrest, and that his new employer did not know it had hired “Burger Boy,” as people in Hunts Point called him. He now works for Walgreens, has two children, and has a lawsuit pending against the city and Officer Florio. A scheduling conference in that case is set for next month.

“The reason I made a false confession is because I was scared,” he said this week. “I’ve never been in that type of position before. I gave up mentally. I was exhausted. I was hungry. I was thirsty. The only thing I was thinking about was going home.”

A police spokesman, Paul J. Browne, shrugged off Mr. Garcia’s lawsuit.

“It’s no surprise that the plaintiffs’ bar seeks remuneration for clients, regardless of how dubious their claims,” he said.

The Big Mac remains in evidence six years later, in a city freezer. The case of the broken glass is not even its only mystery. Investigators found a strand of hair in the burger box, but forensic tests showed that it belonged to neither the young man who was accused in the case nor the officer who paid for a meal and drove away.