By NATE SCHWEBER
March 4, 2014

Two Rikers Island guards accused of assaulting a prisoner and covering up their actions were found not guilty Monday on all charges, after a trial that escalated tensions between the city and the correction officers’ union.

The guards, Louis Pinto Jr. and Kevin Gilkes, who chose to be tried by a judge rather than by a jury, were cleared of all charges stemming from what prosecutors said was an assault of a prisoner, Dapree Peterson, on Dec. 3, 2011.

Judge George Villegas of Bronx Supreme Court found Mr. Pinto not guilty of assault of a prisoner, and found both officers not guilty of 17 other charges, including official misconduct and falsifying a report.

“The justice system worked the way it should,” said Peter C. Troxler, Mr. Gilkes’s attorney. “I just wish it had happened quicker.”

The trial took an unexpected turn when Mr. Peterson failed to show up in court on Nov. 18 to testify against the officers. Correction officers had halted prisoner transports that day, claiming a wave of safety problems with the buses that usually ferried defendants between Rikers and the courts.

Mr. Peterson finally appeared in court the next afternoon, after which the judge suspended the trial for two weeks.

Dozens of defendants missed court appearances or other appointments because of the bus slowdown, but attention quickly turned to the case involving Mr. Peterson, who had been in custody after being arrested and charged with robbery and assault. When Mr. Peterson, 21, finally did testify on Dec. 5, he said Mr. Pinto had punched him in the face.

Norman Seabrook, president of the union, the Correction Officers’ Benevolent Association, praised the verdict and scolded city officials.

“Hopefully now these Correction Officers that have been vindicated can get back to a normal life after the complete embarrassment that the managers at the Department of Correction have put them through,” Mr. Seabrook said in a statement on Monday afternoon.

The flare-up between the union and City Hall roiled the final weeks of the administration of Mayor Michael R. Bloomberg. He charged Mr. Seabrook and the union with intimidating a witness and wasting public funds. Lawyers for Mr. Bloomberg filed suit in Manhattan Criminal Court, and sought to fine the union $1 million a day for any repeat of the shutdown.

Courts around the city ground to a near standstill during the two days in November that the buses did not run. According to court papers, 44 inmates missed court appearances and 49 missed health appointments.

Inside the Bronx courtroom where the officers were tried, Judge Villegas, who at times had criticized the union’s actions, made note that the trial received “an abundance of publicity last year.” Then he read his verdicts.

Mr. Pinto, 48, and Mr. Gilkes, 31, dressed in dark suits, stood with their heads bowed as Judge Villegas repeated “not guilty” eighteen times.

From the courtroom, filled with relatives and friends of the defendants, came a whispered woman’s voice: “Thank you.” Outside the courtroom, the two men hugged their supporters and their lawyers.

A spokesman for District Attorney Robert T. Johnson said the office had no comment on the verdict.

Mr. Gilkes and Mr. Pinto also declined to comment after the verdict.

PRESS RELEASE

Contact:
Michael Skelly
917-551-1354
mskelly@idcwlaw.com
Isaacs, Devasia, Castro & Wien LLP

CO Cleared of 11 Criminal Counts in Bronx State Supreme Court

Bronx, New York–March 3, 2014—In a major legal victory today in Bronx State Supreme Court, Isaacs, Devasia, Castro & Wien LLP Attorney Peter Troxler successfully won an acquittal for his client, a New York City Correction Officer, who was accused of getting into an unnecessary Use of Force Incident on December 3, 2011 with a Rikers Island inmate and then lying about it. The Correction Officer, Kevin Gilikes, had been indicted on eleven criminal counts and a fellow Correction Officer, Louis Pinto, who was also exonerated today, faced seven criminal counts.

“We are incredibly gratified by the verdict of Justice George Villegas today in acquitting Kevin Gilkes and Louis Pinto of all criminal charges,” said Peter Troxler, the attorney for Gilkes. “Both Officers have always maintained that the force used by Officer Gilkes in defending himself from a violent inmate assault was appropriate and commensurate with the force used by the inmate.”

Mr. Troxler continued, “It was particularly gratifying that the inmate who brought these allegations was found to have been incredible by the Judge in his review of the evidence contained in the surveillance footage, the inmate’s false testimony, and his extensive criminal history.”

“I would also like to applaud the diligent work of my co-counsel, Paul London, who successfully defeated the charges brought against Correction Officer Pinto. Justice has been served.”
Isaacs, Devasia, Castro & Wien LLP is a full service law firm, lead by Richard J. Koehler and Steven Isaacs. The office is located at 61 Broadway, 25th Floor, New York, New York 10006. For more information about their practice areas and attorneys, please visit www.idcwlaw.com or follow them on Twitter @koehlerisaacs.

In honor of his extraordinary generosity, loyalty and vision, a lecture hall in the New Building was named after Board member, alumnus and former John Jay tenured professor Richard J. Koehler, on September 24, 2013.

See the Full Article Here

By: Felicia Pinto

In today’s real estate market, a potential home buyer looking to purchase a home, will almost surely come across a short sale. 

A short sale is when a lender agrees to accept less than the outstanding mortgage balance.  When home owners can no longer afford to make mortgage payments, rather than allow the home to be sold in a foreclosure sale, they will negotiate a short sale with their lender.  It’s often referred to as a, “pre-foreclosure.”

A short sale can often be a bargain for a purchaser, but you need to know a few things.  First, short sales can take a long time because the seller’s lender must approve the sale.  The seller must submit a short sale package detailing their financial situation, and must negotiate the purchase price.  The lender is going to make sure it gets the best possible price, so you may end up waiting several months for an approval.

Second, if the lender does approve the transaction, you will have a deadline to close.  Often, the lender will give a 15-30 day window to close, or the approval is rescinded.  It’s a good idea to have your mortgage in order so you can adhere to the lender’s deadline.  If you are not able to close within that time frame, the seller may be able to obtain an extension from the lender, but that’s not always the case. 

Third, you are purchasing the home in “as is” condition.  Procuring a home inspection prior to entering into contract on the home is extremely important.  The seller usually does not have the funds to fix any physical problems with the home, so you need to know what issues exist, if any, so you can walk away if the problems will be too costly to remedy.

Lastly, once your offer is submitted, the seller’s lender may counter.  If the counter offer is not considerably higher than your original offer, and it is within your budget, you may consider accepting the counter offer.  It is entirely possible you are getting the home for well under its true market value.  Your other options are to try and negotiate with the lender and counter back, or walk away from the transaction. 

The short sale process is not for the faint of heart, but in the long run, it can truly be worth the wait if you have the patience. 

Felicia Pinto, Esq. is an Associate in the Real Estate division at Isaacs, Devasia, Castro & Wien LLP. For more information on this topic you can contact her at 917.551.1325 or at fpinto@idcwlaw.com.

By: Rena C. Dawson, Esq. 

Before filing for divorce or deciding to separate from your spouse, the most commonly asked question is: AWill I have to pay my spouse alimony?@

Alimony is called spousal maintenance or spousal support in New York.  The question of whether one spouse will have to pay the other spouse alimony and how much that award will be will depend on a number of factors.   How much money does each spouse earn and what is the earning capacity of each spouse?  Another factor is whether one spouse was the homemaker and did not work outside of the home or whether one spouse can support him or herself while still contributing to the living expenses of their former spouse.

Spousal maintenance must be requested by the spouse before the court will agree to grant that request. Unlike other states, the primary function of spousal maintenance in New York is to support the spouse until they can achieve independence from the paying spouse. Spousal maintenance awarded after a judgment of divorce is also known as rehabilitative maintenance awarded to allow a spouse to achieve financial independence and a specific dollar amount will be awarded for a specific duration of time.  In the rare case where a spouse cannot become financially independent, the court may award lifetime maintenance, that is a specific dollar amount for the life of the paying spouse.  As child support and spousal support obligations usually terminate upon the death of the paying spouse, the spouse who receives the support should obtain a life insurance policy insuring the life of the paying spouse and paying the recipient of the support upon the death of the paying spouse.

Like child support, there is a set formula to calculate temporary spousal support (support while the divorce action is pending), but there is no post divorce judgment formula. As of October 12, 2010, New York has enacted temporary spousal support guidelines that determine the amount of support based upon a formula using a percentage of each spouse=s income.  The formula provides that temporary maintenance should be the lesser of either: 1) Thirty percent of the higher-earning spouse=s income, minus 20 percent of the lower-earning spouse=s income, or  2) Forty percent of their combined income, minus the lower-earning spouse=s income.

For example, if the payor=s [spouse making more money] annual income is $90,000 and the payees= [spouse making less or no income] annual income is $50,000, the first calculation would be: $27,000 (30 percent of $90,000) minus $10,000 (20 percent of $50,000) equals $17,000 per year; the second calculation would be: $56,000 (40 percent of $140,000 [$90,000 plus $50,000 combined spousal income]) minus $50,000 equals $6,000 per year. In this example, the amount of Aalimony@ or temporary spousal maintenance that the monied spouse would have to pay to the less monied spouse would be $6,000 per year or $500 per month which is the lower of the results from the two calculations.  Fortunately, the rule that the lower result prevails limits the amount of temporary maintenance that a spouse needs to bring the payee=s income up to 40 percent of the parties= total income.  This is a significant redistribution of income between parties and should be reviewed carefully.

Before filing for divorce or separating from your spouse you should consult an attorney to calculate your temporary spousal support obligation based on your income and your spouse=s income.  There is a presumption that the non monied spouse, or unemployed spouse, is entitled to be financially supported by the monied spouse, or working spouse, while the divorce case is pending until there is either a settlement between the parties or a judge makes a final determination.

To determine whether a spouse is qualified to receive financial support from the other, the court will examinethe current and projected finances of each spouse. The court will consider the standard of living of the family during the marriage, the earnings and salary of each party, the assets of each spouse, and the amount each spouse actually needs for living expenses.

Specifically, in awarding spousal maintenance, the judge will consider nineteen specific factors cited in the statute:

1. the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
2. the length of the marriage;
3. the age and health of both parties;
4. the present and future earning capacity of both parties;
5. the need of one party to incur education or training expenses;
6. the existence and duration of a pre-marital joint household or a pre-divorce separate household;
7. acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
8. the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
9. reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
10. the presence of children of the marriage in the respective homes of the parties;
11. the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity;
12. the inability of one party to obtain meaningful employment due to age or absence from the workforce;
13. the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
14. the tax consequences to each party;
15. the equitable distribution of marital property;
16. contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
17. the wasteful dissipation of marital property by either spouse;
18. the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
19. the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
20. any other factor which the court shall expressly find to be just and proper.

Spousal maintenance is not awarded by the court in every divorce or separation case. If spousal maintenance, for example, is waived in a pre-nuptial agreement, the court cannot automatically award maintenance unless that pre-nuptial agreement is vacated or set aside.

The statute sets forth a formula for determining interim assistance while a divorce case is pending and sets forth factors by which a court can deviate from those interim maintenance guidelines.  You should consult a lawyer about the calculation of interim maintenance before signing any agreements.

Rena Dawson, Esq., is the Head the Matrimonial Practice at Isaacs, Devasia, Castro & Wien LLP. For more information on this topic you can contact her at 917.551.1315 or at rdawson@idcwlaw.com