Case digests

U.S. Court of entreaty for the sec Circuit

Sentencing

Drug Quality

U.S. V. Jones

05-5879-cr

Appealed from the horse opera District

of New York

Background: This entreaty is from an order of Judge Larimer sentencing the suspect, Keith Jones, to 121 calendar month of imprisonment for unlawful possession of cocain base. Jones challenges the sufficiency of the grounds supporting his strong belief and the rationality of his sentence. He argues the territory court miscalculated his sentencing guidelines range by relying on seized currency to determine the drug measure relevant to the ownership offense.

opinion: The court rejects the challenge and affirms the territory court's judgement insofar as it convicts him for cocain possession. It also rejects Jones's challenge to the court's finding of drug measure. Because the sentencing record is ambiguous as to whether the court understood its discretion to impose a non-guidelines sentence -- as clarified in Kimbrough v. U.S. -- the the sentence component of the judgement is vacated and the case is remanded back to the territory court for resentencing consistent with Kimbrough.

Robert G. Smith, helper federal guardian, for the plaintiff in error, and Louis Comfort Tiffany Lee, helper U.S. Lawyer, for the appellee

New York State

court of entreaty

Federal pre-emption

Consumer recognition

Spitzer v. Applied Card scheme Inc.

3 No. 96

Appealed from the

Appellate Division

Background: This entreaty arises out of a special proceeding initiated by the lawyer general quest restitution, civil penalties and injunctive relief for misdemeanor of New York's Executive Law and Consumer Protection Act. The respondents are a bank and its debt aggregation agency. The bank provided credit to subprime consumers. In 2003, the lawyer general filed a verified petition alleging fraud and deceptive business pattern. At issue is whether the Federal soldier Truth-in-Lending Act preempts these claims of a fraudulent and deceptive credit card solicitation scheme.

Ruling: TILA does not preempt these claims; however, res judicata effect should be granted to a prior nationwide class action settlement agreement, precluding the attorney general from recovering certain restitution.

H. Peter Haveles. Jr. For the appellants, and Michelle Aronowitz for the respondent

FOIL

Insurance Law

Markowitz v. Serio

1 No. 111

Appealed from the

Appellate Division

Background: Concerned that auto insurers were engaging in the practice of "redlining," whereby an insurer refuses to issue or renew a policy premised exclusively on the geographic location of the risk, the Brooklyn borough president filed two Freedom of Information Law requests with the state's Insurance Department seeking information as to various insurers' policy cancellation statistics for certain areas. After he was unsuccessful, this Article 78 proceeding was commenced. The supreme court granted the petition, holding that Regulation No. 90 expressly mandated public disclosure of the reports and that the department failed to meet its burden of demonstrating the Regulation No. 90 filings qualified under a FOIL exemption. The Appellate Division reversed.

Ruling: The Court of Appeals reverses. To meet its burden, the party seeking exemption must present specific evidence that disclosure will cause it to suffer a competitive injury; it cannot merely rest on a speculative conclusion that disclosure potentially may cause harm. The insurers failed to meet this burden.

Drake Colley for the appellant, and Benjamin Gutman for the respondent

Confrontation?Clause

Autopsy Report

People v. Freycinet

2 No. 119

Appealed from the

Appellate Division

Background: The issue decided in this case is whether an autopsy report is testimonial evidence under Crawford v. Washington (541 US 36 [2004]). The defendant's girlfriend died after suffering a knife wound, and the defendant was indicted for murder, manslaughter and other crimes. His defense is that he killed her, either justifiably or by accident. The doctor who performed the autopsy did not appear at trial. The report, redacted to eliminate the doctor's opinions as to the cause and manner of the victim's death, was received in evidence over the defendant's Confrontation Clause objection.

Ruling: The redacted report at issue was not testimonial as the doctor "was not the defendant's 'accuser' in any but the most attenuated sense."

Winston McIntosh for the appellant, and Jennifer Hagan for the respondent

Mediation

Waiver

Hauzinger v. Hauzinger

4 No. 183

Appealed from the

Appellate Division

Background: The plaintiff husband executed a signed waiver releasing the non-party mediator from maintaining mediation. At issue is whether the defendant wife, who seeks disclosure of matters pertaining to the mediation, also waived mediation confidentiality. The mediation agreement provided that if both parties consent, the mediator may communicate with an attorney for either party and release documents to third parties.

Ruling: The Appellate Division's order is affirmed. The wife waived mediation confidentiality and the mediator's claim that a qualified privilege exists, pursuant to CPLR 3101 (b), in maintaining confidentiality is without merit when the privilege has been waived.

Steven L. Abel for the appellants, and Steven H. Grocott for the respondent