When a clerk of the court gives you a directive, it is not "really" a court order - and that is an opinion from the lips of the clerk of an Appellate Court

My disciplinary prosecutor Mary Gasparini charged me, as a prosecutor, witness and alleged victim (it all fits nicely into Gasparini's personal concept of impartial and ethical prosecution), with disobeying orders of court, where several orders of court were letters from a court clerk and a court attorney relating to me what they were allegedly "directed" to tell me by the "court".

I requested, pursuant to Judiciary Law 255, to provide me certified copies of court orders/decisions, with names of judges who made those orders/decisions, with the "directives" to the clerk and court attorney, respectively, to transmit those directives to me or to Gasparini.

The particular letter that was the subject of my Judiciary Law 255 was a directive by Christopher Lindquist, Appellate Court Attorney giving Mary Gasparini how to defeat my request to open court proceedings to the public - which has been done many times, for months and even years, and the law in the state of New York is that attorney disciplinary proceedings MUST be open to the public if the attorney asks for that and waives her privacy, which I did.

Instead, Linquist taught Gasparini that she may simply file an "Affidavit of Opposition", instead of making a motion to close proceedings which are presumed open as soon as I made my request.

So, Lindquist issued an order on behalf of the court that changed rules in favor of Gasparini, and indicated that he was directed by the court to direct Gasparini to file the "Affidavit in Opposition".

I filed a request, pursuant to Judiciary Law 255 (because Freedom of Information Law does not apply to court proceedings) for a certified copy of the order from the court directing Gasparini to do what Lindquist said the court directed  him to direct Gasparini to do.

Here is the response of the clerk of the court to my request for a copy of that order, and for copies of other orders, reflected in other letters of the clerk and the court attorney Lindquist (member of a recently created with much fanfare statewide commission to improve efficiency and fairness of attorney disciplinary proceedings - good luck with that, with Christopher Lindquist on board):

Ladies and gentlemen:

The clerk says by this letter that, even though what she or court attorney express in their letters are "written directions from the Court" (of course, she mischaracterizes blatantly giving legal advice to a party as "directives concerning calendaring and filing deadlines"), those same "written directions from the Court" "do not constitute deliberative 'decisions' or 'orders' of the Court".

So written directives of the court are not orders of the court, to make sure you understand.

So, when you are given a "written directive" by a clerk or a court attorney, it is a directive by the court - but not an order by the court.

I failed to find a legal term "directive by the court" in New York State law.  New York State law only deals with orders, decisions and judgments of the court - and those are made not by court clerks, not by court attorneys, but by judges, elected public officials.

I guess, Ms. Carafell needs re-training - along with the entire Appellate Division 4th Department allowing clerks and court attorneys to run lose, give legal advise under the guise of "court directives" and, when caught red-handed and when the actual court orders as to those "directives" are requested from him, try to clumsily cover their backsides by claiming that "written directives" are not "deliberative decisions or orders" and thus are not really court orders that I am entitled to a copy of.

Good job, Appellate Division, in further messing up.

One more reason why public servants, including the judiciary and its personnel, should be most rigorously subjected to supervision by members of the public - to prevent this circus at public expense from continuing.

Mary Gasparini: violations of constitutional rights are remedied by pleas of mercy

Imagine a prosecutor telling a criminal defendant:  yes, you were not given a trial, and I admit that.

But the decision not to give you a trial (even though you are entitled to it by law) was made, and, therefore, all your claims that you are entitled to a trial are now moot.

And - after all, you have a remedy of addressing the court at sentencing, so you were not deprived of any rights.

===

Sounds insane?

It does.

Yet, here is what my disciplinary prosecutor Mary Gasparini stated to the court in her May 15, 2015 affirmation, under oath:

That is exactly the same as the insane hypothetical above - Mary Gasparini believes that, if a court ordered not a judge, but referee Sirkin, to hold an evidentiary hearing, if Sirkin refused to do that, thus defying a court order and engaging in a crime of contempt of court (with Mary Gasparini's whole-hearted support) - and because Sirkin refused to do what the court ordered him to do, in Mary Gasparini's opinion, the issue of whether I am entitled to the evidentiary hearing and whether the court has authority to proceed when no such court-ordered hearing was held, is somehow "moot".

This is my response to the court to Mary Gasparini's above learned contentions.  I think Mary Gasparini is incompetent, not to mention that her demonstrated willingness to commit fraud upon the court and unwillingness to diligently do her job should forever bar her from wasting taxpayers' money and from any public employment.

A "Family Crime Lab" is reportedly open - reporters should proceed with caution

It has been reported that a reporting service for families has been created where families could report "bad actors" who are violators rights of families and children or are causing undue delay in Family Court proceedings - such as "attorneys, attorneys, judges, guardians, social workers, child protection workers, and government/court employees".

I am reporting it for what it's worth - as it was reported on the Internet.

Of course, before reporting anything to this reporting service, I would do a thorough background investigation of the service itself, not to end up in a situation that you are feeding complaints that will be forwarded to the objects of the complaints for further retaliation - no offense meant to the "Family Crime Lab", if they were formed and operate in good faith.

Yet, stakes are so high that caution cannot be overrated.

Those dangerous attorney blogs...

Unfortunately, I am not the only attorney in this country who is being persecuted for criticism of judicial misconduct - far from it.

Here is a blogpost from an Illinois attorney who challenged improprieties in that state's Surrogate's Courts that leave the elderly unprotected from robbing their estates, separating them from their loved ones and depriving them of the necessary medical care, all for the sake of greed of attorneys favored by courts.

The Illinois attorney's blog was considered a very dangerous thing, warranting a 3-year suspension from the practice of law, blocking the attorney in question from her ability to help the poor with her low-cost and pro bono services.

I guess, the danger of blogs written by attorneys are in their persuasiveness, because attorneys are witnesses of judicial misconduct who, due to their everyday experience with the courts, their legal expertise and knowledge and their eloquence, may carry a very persuasive message to the public that courts in this country are corrupt and are in dire need of reform - a concept to which the general American public is increasingly awakening.

I must mention that New York  appears to consider me a more dangerous person than Illinois considered JoAnne Denison - because JoAnne Denison at least was provided an evidentiary hearing and was allowed to call witnesses.  

Why?

JoAnne Denison's blog presents excerpts from an evidentiary hearing in her disciplinary case.

In my case, I am too dangerous to even allow me to have an evidentiary hearing, and especially an open public hearing in the county where I practice law the most (as I requested many times), and to allow me to call witnesses - lest the public hear from the lips of the witnesses that the charges against me were fraudulent and the real reasons were to discredit me as an eloquent and active critic of judicial misconduct in this state and in this country.

Vicious retaliation by the judiciary against attorneys who criticize judicial misconduct, and deprivation of the public of services of such attorneys, mostly those who provide low-cost and pro bono services, at the time when over 80% of the public cannot afford an attorney, is why regulation of the legal profession should be removed from the hands of the judiciary and the government altogether.

The Mokay saga continues

I had an enlightening conversation with Delaware County Supreme Court Clerk Kelly Sanfilippo yesterday.

I asked Ms. Sanfilippo for access to trial exhibits in the Mokay trial that were received by the court on April 7, 2015.

Three of those exhibits are filed with the court and I already obtained copies of them a week ago.

The remaining 270 exhibits were supposed to be on file with the court, as the court marked them "RECEIVED" in the "bench trial minutes" that were not filed until I asked for them from Ms.  Sanfilippo.

Ms. Sanfilippo first told me that she must have somebody from her office to supervise my review of exhibits, and we have set up an appointment for me to review the exhibits for May 27, 2015 at 10:00 am.

Then, Ms. Sanfilippo called my office and left a message that I still have, telling me that Judge Dowd prohibited me to see the exhibits until he renders a judgment in the case because the exhibits are "deemed to be with the judge", as Ms. Sanfilippo put it.

Of course, in answer to my direct question Ms. Sanfilippo has initially told me that nobody has ever checked out the exhibits, and in answer to my direct question when I called her after she left her message from the judge, Ms. Sanfilippo was not sure whether Judge Dowd will be reviewing the exhibits on Wednesday, May 27, 2015.

Yet, I was prohibited to see Exhibits that were filed with the court on April 7, 2015 and became public record anyway.

I asked Ms. Sanfilippo for at least a list of trial exhibits describing what was in the exhibits, because Ms. Sanfilippo trial minutes contained a description only of admitting exhibits "in bulk" -  hundreds at a time.

Ms. Sanfilippo said that she has a list, but won't give it to me - because it was not filed yet.

Of course, when the court "receives" exhibits into evidence (as Judge Dowd did on April 7, 2015), it has the same effect as filing those same exhibits with the court and making them public record, but, apparently, in Delaware County Supreme Court, the whim of a judge and not the law, controls the court clerk Kelly Sanfilippo - especially when it concerns my husband or myself.

What is even more interesting is how Ms. Sanfilippo answered my question as to why I was already given access to three exhibits out of 273, but then Judge Dowd prohibited my access to all of exhibits.

Ms. Sanfilippo said that the 270 exhibits that were not on file with the Delaware County Clerk, even though the trial concluded on April 7, 2015, were not "filed" because, after  the judgment is made by Judge Dowd, those exhibits will be returned to the party who provided the exhibits.

Of course, the majority of the exhibits were marked as "certified records of the Delaware County Clerk", while before trial those "certified records" were kept in Harlem law office without any supervision by the court as to how those records could be tainted, so I wonder how the court even accepted those records as "certified" when they left the custody of the custodian of those certified records and were kept for weeks in Harlem's law office before trial - which, to any court, would irreversibly taint those records.

At this time I am patiently awaiting an answer from Delaware County Supreme Court to my request to provide me a copy of the written decision of Judge Dowd to seal trial exhibits or prohibit my access to them before Judge Dowd comes around to actually look at the evidence that he did not look at when he was admitting it at trial.

As to the secrecy with trial exhibits, I will remind my readers of some of the history with these "trial exhibits".

I tried to have a look at them on or about March 25, 2015.

I was told by Richard Harlem's office that I can only look at them under supervision from Richard Harlem's paralegal Patrick Orr, to preserve their confidence that the certification on certified business records remains intact.  Obviously, it did not concern Richard Harlem that business records certified by the Delaware County Clerk Sharon O'Dell were provided before their submission into evidence not to the court, but directly to Richard Harlem, an interested witness in the case, which tainted them beyond repair.

In fact, my requests to have those records filed with the court for my review were rejected by Judge Dowd, who expected me to submit to blackmail by Richard Harlem that I will not be able to see the "certified business records" from the Delaware County Clerk unless I agree to have my review added to Richard Harlem's bill against my client.

I also have on file an after-trial (!) submission of additional evidence (!) to the court by the "trial attorney" in the ex parte secret Mokay trial, Ms. James Hartmann of Delhi.

Of course, as a seasoned attorney, Mr. Hartmann must know that submission of evidence ended when the trial ended on April 7, 2015.  Yet, seeing the general unlawfulness of how the Mokay trial was handled, James Hartmann went right ahead and made an after-trial submission of evidence anyway.

In that post-trial submission Mr. Hartmann mentioned, as part of his billing to his clients (the Mokay plaintiffs) a 12-minute conversation with Judge Dowd's court attorney (a subpoenaed witness) Claudette Newman.

Of course, none of that was disclosed to me before trial, and my motion to recuse made on other grounds, was rejected off-hand by Judge Dowd who has a history to protect misconduct of his attorney and his own misconduct and to viciously retaliate against people who make motions to recuse against him - and my husband has "erred" even more, by suing Judge Dowd in a pro se federal lawsuit and exposing Judge Dowd's likely lack of mental capacity to preside over court proceedings - which the Mokay ex parte secret trial only confirmed.

So, on top of ex parte communications with Judge Dowd evidence of which is contained in Harlem Law Office's billing statements (for which ex parte communications Richard Harlem wanted my husband to pay the Plaintiffs), James Hartmann admitted to an ex parte communication with Judge Dowd's court attorney on March 27, 2015, 11 days before trial.

That is to add to the ex parte communications of Richard Harlem's attorney David Cabaniss in a related case Neroni v. Harlem, with both judges presiding over the case - Carl Becker and Ferris Lebous, before these judges (without disclosure of ex parte communications) rendered decisions against my husband.

At least, everything falls into a pattern - a fraudulent pattern.

Richard Harlem somehow holds in fear even the New York State Attorney General's office, because the Assistant New York State Attorney General Mary Walsh whose sworn statements about Richard Harlem's and his father's misconduct in how they billed the Blanding Estate in the Otsego County Surrogate's Court and in how they defrauded the court are on file with that court, found it acceptable to perjure herself in her motion to quash my subpoena by stating, under oath, that she did not investigate Richard Harlem's billing and does not know anything about what I was calling her to testify about - and that is Richard Harlem's and his father's knowing pursuit of conflicted representation in a prior case for the sake of greed.

You can see the statements of Mary Walsh made to the Otsego County Surrogate's Court under oath that she has backed out of in front of Delaware County Supreme Court under oath - here.  Mary Walsh's "objection to account" very clearly state improper billing practices of Richard Harlem and his father - proper impeachment evidence against Richard Harlem as the main Plaintiffs' witness at the Mokay trial,  as Mary Walsh well knew when she was backing out of these statements.

Apparently, Mary Walsh backed out of sworn statements she filed with the Otsego County Surrogate's court by her sworn statements filed with the Delaware County Supreme Court - committing fraud upon the court in the process, ironically, in a civil Mokay case that was allegedly about fraud upon the court.

Job security is more important than honor,  attorney ethics or the rule of law for Mary Walsh?  Was she intimidated to back out of her sworn statements to the previous court?  By whom and why is the question - she seemed fearless in the Blanding proceedings...

But, fraud upon the court from "blue blood attorneys" like Richard Harlem (son of a judge), James Hartmann (hired by son of a judge and husband to Nancy Deming, a member of judicial qualification committee in the Appellate Division 3rd Department) and Mary Walsh (Assistant New York State Attorney General) does not count.

And, since greed was the motivating factor from the get-go in the Mokay action, through greed the truth was finally revealed, because Richard Harlem and James Hartmann could not abstain from charging my husband even with their own ex parte communications with judges.

I guess, law, ethics - or elementary shame - does not play a role in Richard Harlem's and James Hartmann's universe.

And - back to the issue of the mysterious trial exhibits admitted in bulk at the stunning speed of 19 seconds per exhibit, it is very convenient for Kelly Sanfilippo to file her "list of exhibits" only after Judge Dowd makes his judgment - and after she returns the alleged exhibits to "the parties" without me or Mr. Neroni ever able to see them.

That takes care of the little problem that the boxes that were submitted as "evidence" at the Mokay trial could have had ANYTHING in them - and Judge Dowd would have gladly admitted them, and would have gladly presented it as evidence of trial.

Even though I ordered it, I will not trust authenticity of the transcript prepared by Brenda Friedel, Judge Dowd's law clerk's Facebook friend,  listed as such on Claudette Newman's Facebook page three days before the Mokay trial (or former Facebook friend, Claudette Newman locked her friend-list after I blogged about that).

And, after the shenanigans of Judge Dowd and his staff that Kelly Sanfilippo obeys as a slave of the judge rather than public servant of the law and of the People of the State of New York, I will not trust a judgment from Judge Dowd with reliance on any claimed "trial exhibits" that the judge obviously did not have the time to read when they were submitted into evidence, and especially because these alleged "trial exhibits", together with the list of those exhibits are somehow secret and may not be shown to me.

Of course, those exhibits were supposed to be marked by the stenographer before being submitted to the court.

But, when trial exhibits were marked (if they were) by the stenographer who was Facebook friend of Judge Dowd's law clerk, when Judge Dowd, his law clerk and his secretary were all called as witnesses at the trial, because of Richard Harlem's billing of his ex parte communication with the chambers as part of "damages", does not inspire any trust in authenticity of the trial exhibits.

Court employees are known to go to great lengths to keep their jobs in the hard economic times, as behavior of Kelly Sanfilippo, as one of examples, shows.

The only word that begs to be pronounced to characterize this whole situation and its participants?

Crooks.

How to discipline an attorney when it is against the law

Today is Friday, May 22, 2015.

A secret hearing in my disciplinary proceeding is scheduled for May 26, 2015, that is the next business day after today.

Why secret?  Because I satisfied all conditions to open proceedings to the public that are required by law:

1. waived my privacy in writing - mutliple times and for months and years; and
2. asked the court to open proceedings to the public and the press,

yet, the court continually stalls my request, and as of today, as of two business days before the disciplinary hearing, the court still did not confirm what the law provides for - that the disciplinary proceedings must be open to the public if the attorney requested that and waived her privacy.

There is sad irony about all of this secrecy, because it is for my benefit that the secrecy exists (at least it is declared in the law this way), court proceedings are otherwise presumed to be open by statutory law in New York and are required to be open by the 1st Amendment of the U.S. Constitution, so that the public can verify the integrity of workings of our court system.

Yet, I do not need that questionable "benefit" of secrecy and waived it long time ago, in February of 2013 (over two years ago) when I removed the disciplinary petition against me to the federal court without requesting anonymity, which was my right at that time.

It is the court and the disciplinary prosecutor (disqualified by her role as a sole witness against me in the fabricated criminal proceedings that were dismissed before the initial hearing) who cling to non-existing secrecy of the proceedings as if it is their lifeblood, inventing additional rules that I must follow as to how to ask what should be granted to me, as a matter of mandatory precedent and statutory law, for the asking without any formalities or causes shown.

The court on Tuesday will have a formidable task as to what to do with me at that unlawfully secret hearing.

I asked to recuse the court for its record of not following the law and for its record of favoritism toward the disciplinary committee which is considered by federal courts "an arm of the Appellate Division".  Of course, when a prosecutor is "an arm of the judge", both prosecutor and the judge are disqualified due to a separation of power and lack of neutrality problem, but so far this court rejected this argument without analysis or explanation.

I asked to disqualify the prosecutor multiple times, because of prosecuting clearly fraudulent claims that I neglected two clients by not appearing at a deposition and not responding to a motion, causing a default in the case, when COURT RECORDS that the Petitioner did not have time or due diligence to review show that at the time of the aforesaid deposition and motion I was not even admitted to the bar.  The other fraudulent claims is that I disobeyed an order of the court by not paying sanctions that I paid immediately into the court escrow, 1.5 years before the petition was filed - but the Petitioners and their attorneys did not consider it necessary for themselves to check out the facts and do the due diligence required in this state of all attorneys, but the attorneys disciplining other attorneys (at least I do not see any courts sanctioning disciplinary prosecutors for misconduct that is rampant).

Now, it is a wonder for me how the court will overcome fatal flaws of how jurisdiction was obtained in the 4th Department, of incompleteness of the record upon which the court will make its determination, skipping multiple procedural steps, disqualification of the prosecutor and flaws in the motion for a summary judgment - that is still pending in the court, at least, I did not receive a certified copy of a decision of the court on that motion, as I asked recently, and the hearing that is scheduled for May 26, 2015 is to confirm a referee's report AND for mitigation - which means, a decision on liability has not been made, but, from scheduling mitigation and a court-set deadline for me to submit written requests for mitigation by May 8, 2015, it can be presumed that the issue of liability is already prejudged, and that the decision of the court on liability will be against me.

JURISDICTIONAL FLAWS

There are a couple of jurisdictional flaws that, had it been an impartial court, would have been insurmountable and would have prevented and precluded the court from ruling on my case:

1) first, jurisdiction was transferred through an ex parte order upon an ex parte application of the 3rd Department disciplinary committee, while the 3rd Department did not give the 4th Department the copy of that application or proof of service upon me, and refuses to give the same to me, and the 4th Department claimed to me that it never received that application;

2) transfer of jurisdiction occurred based on an "agreement" between the chief judge of the 3rd Department and the chief judge of the 4th Department who should have checked and verified that the transfer is being made upon an ex parte motion which was illegal;

3) a motion is pending in the 3rd Department to vacate the order of transfer due to its illegal ex parte nature, which is indisputable from the text of the "confidential order" that does not mention that the Petitioner's "application" was duly served upon me, or that I failed to respond - that is an admission by the court that the motion was ex parte, which is not allowed in New York (but for in cases where Frederick or Tatiana Neroni are involved);

4) an appellate court may not proceed on an incomplete record as a matter of jurisdiction, and the 4th Department never received (and I've never seen) the "application" upon which the order of transfer was granted.

I wonder how jurisdictional defects in the transfer and incompleteness of the record under review will be overcome by the court.

DISQUALIFICATION OF THE PROSECUTOR

As I mentioned above, Mary Gasparini has commenced a criminal proceeding (since dismissed) against me on January 28, 2015, where she is acting as a criminal prosecutor AND the sole witness in the proceedings.  On April 9, 2015 Mary Gasparini added more attempted criminal charges where she was, once again, a purported criminal prosecutor, the only witness and the alleged victim - a completely disqualifying set.

Mary Gasparini urged the referee to submit fraudulent altered transcripts, fraudulent referee's report written by Mary Gasparini and claiming that I already had the court-ordered evidentiary hearing that I was entitled to (something that Mary Gasparini acknowledged recently did not happen because it was allegedly moot because the referee did not want to do his job and hold that court-ordered hearing).  

Mary Gasparini attempted to bring criminal proceedings against me when she figured out her reputation may be at stake because it was shown on this blog just how incompetent and lacking in integrity Mary Gasparini is and what a sham "attorney disciplinary proceedings" in New York are, prosecuted by the likes of Mary Gasparini.

So far, the court proceeds with treating Mary Gasparini as if she is still legit in the case, which is yet another reason why I asked the court to recuse - and the court stubbornly refuses to do so.

MOTION FOR A SUMMARY JUDGMENT

Normally (I have to repeat this word in this case), the law requires that a motion for a summary judgment must be supported by competent evidence (non-hearsay, on properly authenticated business records or on affidavits of persons with personal knowledge of the events).

The 3rd Department committee (who withdrew with haste based on an ex parte motion to the court which they were "the arm of") made a motion for a summary judgment on the following charges:

1) That I did not appear at a deposition, did not oppose a motion and caused default for two clients - in 2008, when I was not admitted to the bar and when such appearance at a deposition or in a motion would have been a crime of unauthorized practice of law - a CRAZY and crazily fraudulent charge that 4 courts allowed to proceed for over 2 years.  '

Mary Gasparini claimed to the court that she cannot change a transferred petition by court rules, then withdrew that charge after I filed a lawsuit against her and after the referee "granted" that charge (suddenly, the court rules were not important for Mary Gasparini any more, but the lawsuit was), but now Mary Gasparini once again asks the court to grant the petition on all charges without exception.

Since it was a motion for a summary judgment made by the Petitioner, it was the Petitioner who was supposed to provide court records proving that I was an attorney of record in the case and that I did not appear at a deposition or did not oppose with a motion properly served on me.

Such records do not exist, so Petitioner did not provide them to the court.

Instead, I provided court records of the Delaware County Supreme Court to the disciplinary court showing that in the case Petitioner is talking about I was not an attorney of record at the time of the deposition and of the motion, and moreover, that I was not admitted to the bar at that time and could not possibly represent clients.  

Case law in the 3rd Department where the case originated shows that disciplinary committees do not have authority to even bring proceedings against an attorney for conduct before admission to the bar, and that is even when an attorney committed misconduct.  NOT committing a crime of practicing law without a license in 2008 cannot, for any sane individual, constitute a violation of any law, ethical or disciplinary rule - even if the lazy, incompetent and immoral attorneys on the disciplinary committeess and equally lazy, immoral and incompetent judges refuse to see contents of court records informing them of that fact.

2) Charge IV - that I allegedly did not pay the sanctions imposed upon me by now hastily departing the bench Judge Carl F.Becker after I sued him.

Sanctions were imposed upon me for CORRECTLY stating that Judge Becker did not have a certificate of election filed with the Delaware County Clerk after his alleged 2002 election - and anybody can come to the Delaware County courthouse in Delhi, NY and see that the only certificate of election that is filed there was filed in 2011, 9 years after the alleged election, and that certificate of election is PRESUMED false because the Delaware County Board of Election retains original ballots and petitions in elections for only 2 years after elections, and thus COULD NOT certify Judge Becker's elections 7 years after the evidence of that election was gone.

Judge Becker sanctioned me in one case for bringing a motion questioning HIS OWN legitimacy (a question that he, of course, was completely disqualified to resolve - if the law and principles of fairness and due process were to be followed).  Then, in another case where I brought a similar motion, Judge Becker arrived at a diametrically opposite decision, that my motion was not, after all, frivolous, but did not go back and did not correct his sanction that it was frivolous in that first case.

I brought in front of the court Judge Becker's de facto overruling of himself in my opposition to the summary judgment.  I wonder how the court is going to deal with that issue when the same issue where I was absolutely correct on the law and as a matter of documentary evidence, is ruled by the judge who was the subject of the challenge of his own legitimacy as both frivolous and not frivolous - and I am supposed to be sanctioned for it.

But, back to the sanctions, I actually did pay the sanctions into the escrow of the court when I filed appeals of sanctions (three of them, the sanctions for being correct imposed by a judge who committed misconduct after I sued him, amounted to over $5,000).  I asserted in my answer that I paid the sanctions and provided evidence that I did.

Petitioner disregarded that evidence and continued to claim that I did not pay the sanctions and should still be sanctioned.

I do not have a right of discovery in the disciplinary proceedings and had no right to obtain copies of the court escrow trust account showing that I paid the sanctions, but I did provide to the court a filing of affirmation that I filed showing that I paid the sanctions.  The Lawyers Client protection fund to whom the court escrow fund sent the monies, without ever returning them to me, has sent a letter to the Petitioner.  The Petitioner submitted the letter to the court and acknowledged that the moneys were paid into the court escrow and transferred to the Lawyer's Fund.

I have no control over WHEN and HOW the COURT transfers monies out of its trust account, and cannot be disciplined for that.  Yet, that is exactly what Petitioner seeks.

Remember - this is a motion for a summary judgment, the burden is on the Petitioner to prove that I did not pay the sanctions (which I paid 1.5 years before the petition was filed, right after they were imposed), and Petitioner acknowledged that I did pay the sanctions, before the petition was brought - but Petitioner still proceeds requesting the court to discipline me for not obeying the order of the court to pay the sanctions.

We will see how the court will resolve this mess.

3) the rest of the charges request to impose "collateral estoppel" - a decision without a hearing based on a prior court decision - because Judge Becker ruled (and the Appellate Division 3rd Department affirmed while disregarding facts and whole motions and transcripts containing proof and being filed as part of the record on appeals) that I committed frivolous conduct in three proceedings.

I provided new evidence to the court showing that Judge Becker overruled himself in subsequent decisions, that Judge Becker showed his bias to me and my clients in his subsequent decisions and act of misconduct.

New evidence precludes imposition of collateral estoppel.

I raised the issue that criticizing a judge in motions to recuse - for which I was sanctioned - was fully protected by the 1st Amendment and due process of law to allow me to do my job for my clients without fear of retribution, and that the judge who is the object of criticism is disqualified from holding that I harassed HIM, as a matter of imposition of sanctions for frivolous conduct, because it is a long-set rule of due process in this country that a person may not sit in judgment of proceedings where he is a party or holds a personal interest in the outcome.

Moreover, I showed to the court that the rules of frivolous conduct in court proceedings and in attorney disciplinary proceedings are different, the burden of proof in attorney disciplinary proceedings is higher (subjective standard vs objective standard in the court rule of frivolous conduct) and that a decision made based on the objective-standard burden of proof cannot be a basis of collateral estoppel in proceedings where subjective standard is required.

The court actually listened and - strangely from procedural point of view - while the motion for a summary judgment was still pending, appointed a referee to hold a hearing as to outstanding issues of fact, which evidentiary hearing the referee refused to conduct.

Normally, 

1. a summary judgment must first be denied, 
2. then the evidentiary hearing held, 
3. then the fact-finding report from that evidentiary hearing filed, then motions to confirm (by the disciplinary committee) and to disaffirm (by the attorney) be filed, 
4. then the court decides the motions to confirm and disaffirm the referee report, and then, 
5. if the court decides against the attorney, 
6. the court allows the attorney to be heard in mitigation.

All of that procedure is screwed up in the Appellate Division 4th Department in my case.

At this time, there is no decision of the Appellate Division 4th Department on point 1 above (summary judgment), but there is a decision dated September 30, 2014 to hold an evidentiary hearing, and a decision to hold a hearing in mitigation (point 6), which can only be made when steps 1 through 5 were already satisfied.

Apparently, skipping all of those procedural steps are ok where I am involved, I simply am not entitled to the "rule of law", however abridged it is in attorney disciplinary proceedings in New York.

The motion for a summary judgment is still pending, it was not denied - yet the court ordered an evidentiary hearing held.

The evidentiary hearing was not held - because the referee, acting without authority, "decided" the motion, even though his only court-appointed role was and could be, by New York Constitution, to hear and report the facts from an evidentiary hearing, without any recommendations or decisions.

Since the evidentiary hearing was not held, there were no facts to report by the referee.

Yet, the referee filed a fraudulent referee's report without holding any evidentiary hearing.

The referee based his fraudulent report on cooked court transcripts claiming that the court conferences were "hearings" where I "testified".

In his report, the referee followed to the letter what Mary Gasparini asked of him in her "draft of the referee's report".

The draft of the referee's report was forwarded by Mary Gasparini to the referee after Mary Gasparini filed criminal charges against me (now dismissed) where she was the sole witness of the prosecution, thus completely disqualifying herself from prosecuting my disciplinary proceedings.

In other words - what the 3rd Department attorney disciplinary committee started as a royal mess, Mary Gasparini made an even bigger royal mess - and that mess continues without any control by the court.

I wonder how the court is going to sort out this quagmire - where the standards of proof do not match, the court-ordered evidentiary hearing is not held, the proceeding is prosecuted by a disqualified disciplinary prosecutor who engaged in proven fraudulent and frivolous conduct, and the charges cannot be sustained on evidence before the court - unless the court wears blinders or received direct instructions from up above as to how to rule in the case. 

The disciplinary petition, as it is shown above, is ALL sham - the sanctions of the now fast departing Judge Becker for correctly addressing his lack of legitimacy as a judge whose alleged election in 2002 was never properly confirmed by timely and authentic required documentary filings, for correctly addressing his pervasive misconduct in court cases - and the fraudulent charges that I did not appear somewhere where I could not appear and did not pay sanctions I did pay.

That is THE ENTIRE petition against me being prosecuted against me since January of 2013 which cost me and my family tremendous stress and financial losses.

Specialists with whom I discussed this petition were amazed that the petition is still pending, and was not tossed with sanctions against the Petitioner.

Which brings me to the conclusion that the petition - no matter how bad it is - may still be granted and my license may still be taken based on that petition, because very apparently, in New York I am below the law and no law applies to me.

The way all courts that handled these proceedings:

• Appellate Division 3rd Department;
• U.S. District Court for the Northern District of New York on removal;
• U.S. Court of Appeals for the 2nd Circuit on appeal of remand;
• Appellate Division 3rd Department on remand;
• Appellate Division 4th Department on ex parte transfer

handled this case, as described above and throughout this blog, does not give me hope that on May 26, 2015 the court will finally wake up and apply the rule of law to my case.

Here are the names of judges who so far handled my case:

• Appellate Division 3rd Department - judges 
• John A. Lahtinen, 
• Elizabeth A. Garry, 
• William E. McCarthy, 
• Leslie Stein, and 
• Robert S. Rose;  Stein was, since her illegal ex parte order of transfer, elevated to the New York State Court of Appeals;
• U.S. District Court for the Northern District of New York - judges 
• Norman A. Mordue and 
• David E. Peebles whose court intern was caught snooping on me on my LinkedIn account that contained political statements;
• U.S. Court of Appeals for the 2nd Circuit - judges 
• Ralph K. Winter, 
• Debra Ann Livingston, and
• Denny Chin;
• Appellate Division 3rd Department on remand - same as listed above;
• Appellate Division 4th Department on illegal ex parte transfer - judges 
• Nancy E. Smith, 
• Eugene M. Fahey, 
• Edward D. Carni, and 
• Joseph D. Valentino; judge Fahey was promoted to the New York State Court of Appeals, after his illegal "sealing" order and an order denying, without an explanation, constitutional challenges raised in my cross-motion, twice - and allowing two apparently fraudulent charges and three unconstitutional charges based on clear judicial retaliation to proceed.

5 presumably highly educated and trained federal judges failed to read court documents indicating that the deposition and the motion that I was accused not to attend/oppose were dated 2008 when I was admitted to the bar in 2009, making that charge jurisdicitonally defective from the get-go and no "Younger abstentions" or other judge-created bars to federal civil rights jurisdiction applicable.

Plus, 8 also presumably highly educated and trained state judges failed to see that jurisdictional flaw and allow jurisdictional defective charges prominently placed at the beginning and the end of the petition (Charge I Specification I and Charge IV), to proceed.

It says a lot about qualification of our judges, doesn't it?  Either they do not know how to read, or they are too busy to read what is in front of them - and judge's inability or unwillingness to properly do their job and their complete lack of accountability to the people (the sovereign in this country) for their sloppy performance and misconduct in office is increasingly becoming a big issue in this state and this country.

As to my case, applying the rule of law will require of the court to toss the petition with sanctions against the Petitioner and its attorneys for frivolous conduct and for their attempts to defraud the court on multiple occasions - under the guise of protecting the public from me, no less.

Whether the court will actually apply the rule of law in my case, we will see in the near future.

More on credibility of New York Senator John A. Defrancisco - and on his bills that appear to help his own and his son's law business. Should the feds get involved with investigation of yet another New York Senator?

I first wrote about Senator John A. Defrancisco on this blog in August of 2014 and raised the issue that the senator, along with other senators who are practicing attorneys, should be impeached for sponsoring bills and voting on bills that help their law business financially.

I do not presume to believe that Senator Defrancisco should be reading my blogs.

Yet, I do presume that Senator Defrancisco should not be continuing to sponsor bills that benefit his law business financially, and he still does it, while attempting to appear on the white horse and fighting prosecutorial misconduct in New York.

In my previous blogs today I raised issues as to credibility of New York State Senator John A. Defrancisco who was pushing his bill for a "state commission" to deal with prosecutorial misconduct, modeled after the New York State Commission for Judicial Conduct - which, as practically every complainant about judicial misconduct (rampant in New York) knows, tosses meritorious complaints, and New York courts give complainants no recourse to appeal those dismissals, leaving them not only without a remedy, but in the hands of enraged judges who know about the complaints and revenge against the whistle-blowers, with no consequences for that revenge.

What raised red flags as to credibility of Senator Defrancisco for me is, among other things, his claim that the majority of prosecutors in New York were doing their jobs properly.

First, there is no statistics to say that.

Furthermore, 

• Senator Defrancisco is not a criminal defense attorney,
• has left the criminal defense field a long time ago, 
• has been himself a prosecutor once and is not impartial as to his former brethren, and
• can receive plenty of statistics if he would simply care to ask currently practicing private independent (not assigned) criminal defense attorneys about incidents of prosecutorial misconduct;
• Sen. Defrancisco would not be promoting such a bill if prosecutorial misconduct would not be rampant in New York, to the point of large (and usually deferential) media sources such as ProPublica and New York Times turning their eyes in that direction.

I guess, Senator Defrancisco does not care to ask defense attorneys, for he might not like what he would hear back, that prosecutorial misconduct is the rule in the State of New York rather than the exception - or Sen. Defrancisco tries not to ire prosecutors too much, because people who are prosecutors today may become judges tomorrow, and Senator Defrancisco is a practicing licensed attorney whose livelihood may be in the hands of people he is criticizing.  Nothing like a neat little conflict of interest.

Perturbed by Sen. Defrancisco's not-too-forthcoming statements to his electorate, I looked into Senator Defrancisco's background further.  

This is what I found.

New York attorney registration shows Senator Defrancisco as being employed at a Syracuse law firm, Defrancesco:

Yet, the webiste of Defrancisco & Falgiatano law firm does not list Senator Defrancisco as one of its attorneys, but it lists a younger male with the same last name, Jeff D. Defrancisco:

It is a disciplinary violation for an attorney to provide an incorrect registration, so I wonder whether Senator DeFrancisco will be subject to attorney discipline - or his status as a Senator will protect him, the same way it protects prosecutors whose misconduct Senator Defrancisco allegedly wants to address through creating a state commission on prosecutorial misconduct.

Let's note that Jeff D. Defrancisco (as I understand, Senator's son), who, in his 15 years of practicing, 

worked, besides his father's law firm, in the prestigious (and politically connected) law firm Harris Beach LLC that I wrote about on this blog, too, and in the Onondaga County District Attorney's Office.

The Onondaga County DA, according to news reports, is the law school friend and roommate of the Chief Administrative Judge of the 5th Judicial District James Tormey.

Sen. Defrancisco's law firm is located in Syracuse and is doing business there.  I highly doubt that Sen. Defrancisco would want to upset his own law firm's (and his son's) business and his and his son's law licenses and livelihoods by creating a commission that would have a potential to hurt the friend of the chief administrative judge who is in charge of assigning judges to Sen. Defrancisco's and his law firm's court cases.

Or, Sen. Defrancisco would be interested to make that bill as mild as possible to create yet another paper (and toothless) tiger to deflect public anger about misconduct of public officials - but not to hurt his and his son's own business chances and financial well-being.

What further bothered me is comparison of the list of the types of cases handled by Defrancisco & Falgiatano with the list of legislative activities of Senator Defrancisco.

These are the types of cases that the D & F law firm deals with, reportedly winning multi-million dollar lawsuits for their clients:

These are some of the latest bills sponsored by Senator John A. Defrancisco:

When Senator D's law business is, very likely, to oppose insurance companies who do not settle claims of their clients, Senator D has no business sponsoring legislation pertaining to any restrictions upon insurance companies, it is a direct conflict of interest (in my opinion).  The above bill is clearly in favor of Senator D's clients - it is not necessarily a bad thing, the bill in itself, the bad thing is who is sponsoring it, because the bill definitely helps potential client base of the Senator.  I wonder who lobbied the bill.

The bill for enhanced requirements for clinical "peer reviewers" appear to help in Sen. Defrancisco medical malpractice actions, making more strict (and costly for the hospitals) to review actions of their physicians, making it easier for attorneys suing for medical malpractice to attack alleged impropriety of physician's actions, and making hospitals more prone to settlements.  Once again, regardless of whether the bill will or will not be beneficial to the general public, Senator Defrancisco should not have touched this topic with a 10-foot fishing pole, because the Senator himself and his law firm, and its client base, will benefit from the bill, creating an irreconcilable conflict of interest against sponsoring such bills and an appearance of impropriety.

This bill is directly related to Sen. Defrancisco's and his son's law business.  If this bill passes, Senator Defrancisco will be able to create for his own and his son's law business a situation (now prohibited by law) where it can claim a contingent fee.

The bill, of course, sites an allegedly good faith reason for repealing a restriction on contingency fees:

Yet, it is undeniable that Senator D's and his son's law firm will financially benefit - big time - as attorneys specializing in personal injury and medical malpractice lawsuits, if the bill passes, and such sponsorship should be prohibited to Senator D.  

The bill talks a lot about ethics and conflicts of interest - but it omits the fact that sponsorship of this bill by Senator Defrancisco is one big conflict of interest and an ethical violation for an attorney.

Legislating to change court rules that make it easier for a law firm to obtain a money judgment in court, should be prohibited to a Senator who is an attorney actively practicing, along with his son, in court, due to irreconcilable conflict of interest.

The bill, once again, directly relates to Senator D's and his son's law business, and such sponsorship should be prohibited to an interested legislator.

So, Senator Defrancisco - if you want to deal with attorney misconduct, including prosecutorial - first clean up your own act as a legislator drumming up legislation for his own and his son's law business.

For shame.