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.

If a separate state commission for prosecutorial misconduct is a necessity, attorney licensing does not have legitimacy

A year ago, with much fanfare, New York Senate announced introduction of a bill for creation of a state commission to deal with rampant prosecutorial misconduct in this state.

The headlines presented this bill as a revolutionary event "poising" New York to become the first state in the nation to deal with the issue of prosecutorial misconduct on legislative level.

One year later, there is no discernible movement on the bill, even the sponsor of the bill, Senator John A. DeFrancisco, presented the bill on YouTube recently - with a resulting whopping 45 views as of today.  

I also believe that even the necessity of creating such a commission deals a heavy blow to legitimacy of attorney licensing.

New York maintains 8 (!) attorney disciplinary committees, 

• 1 in the Appellate Division 1st Department;
• 3 in the Appellate Division 2nd Department;
• 1 in the Appellate Division 3rd Department, and
• 3 in the Appellate Division 4th Department

These 8 committees have a duty of dealing with attorney misconduct.

Prosecutors are all licensed attorneys.

Therefore, there are already IN EXISTENCE governmental bodies with a duty to address prosecutorial misconduct, as a sub-species of attorney misconduct in general.

The need for attorney licensing is declared to the public to be justified because attorney licensing (and attendant discipline of attorney misconduct) allegedly protect the public from attorney misconduct.

Because of the need for a separate commission to deal with prosecutorial misconduct, it is apparent that that need is not satisfied, and not only in New York, but across the nation.

If misconduct of a particular class of attorneys, nearly the most powerful class of all attorneys (after judges), is systematically not addressed, leaving the public exposed to egregious harm from that misconduct, the question is - doesn't such non-prosecution of prosecutors undermine legitimacy of attorney regulation?

In my opinion, it does.

And you know what is wrong with Senator DeFrancisco's bill and why (in my opinion) it lacks credibility?

Listen to Senator DeFrancisco's video presentation of the bill.

Around 5 minutes into his speech, Senator DeFrancisco says that "almost all prosecutors do their jobs properly" and that the bill is allegedly only against a tiny number of prosecutors who commit misconduct.

Come on, Senator DeFrancisco.

You really lose credibility when you say that.

You wouldn't have introduced this bill if prosecutorial misconduct would not be rampant.

I, as a criminal defense attorney, have to see, as yet, a prosecutor, who would NOT conceal Brady material, who would NOT overcharge in order to coerce the defendant to plea-bargain, who would NOT intimidate defense witnesses, etc. etc. etc.

Such actions of prosecutors are now routine, and they are routine because of the absolute prosecutorial immunity that covers all prosecutors for any malicious and corrupt conduct during his or her prosecutorial activity, and because of a complete lack of disciplinary consequences as an attorney.

And absolute power breeds absolute corruption.

When you recognize that, Senator DeFrancisco, maybe your bill will gain a little bit of credibitility - which it totally lacks now.

And, by the way, modeling the proposed state commission on prosecutorial misconduct on the New York State Commission for judicial misconduct (a glorified shredder of public complaints against judges) is as good as announcing to people that it will be yet another waste of time and money and another decoy, a "Potiomkin village" meant to deflect public anger at unbridled prosecutorial misconduct by an appearance that it is "being taken care of".

Right.

Discovery in Family Court proceedings is routinely neglected by assigned counsel

Several readers of my blog alerted me to a problem with assigned counsel in Family Court proceedings - that counsel assigned to them pursuant to Section 722 of the New York County Law, do not do any discovery before trial, do not do any pre-trial motions and do not do any applications for funds for experts and investigators, despite, oftentimes, a dire need for such experts and investigators in particular cases.

Often, people who are speaking to me (prospective clients or simply readers of this blog), while being well into Family Court proceedings, do not even know what discovery is, and claim that their assigned counsel refuses to speak to them, dedicate any meaningful time to them, and did not do any discovery or pre-trial motion that (often reasonably) the clients ask the assigned counsel to do.

I cannot stress enough how valuable pre-trial discovery is for the success of the trial.  It may be, of course, trial strategy of counsel not to do discovery.

Yet, with assigned counsel, since, based on my own experience with Family Court and assigned counsel for opponents of my clients, what it appears to be is not any kind of trial strategy, but a uniform unspoken rule of not doing discovery.

I do not know what is the reason for it, I can only guess.

Assigned counsel is paid by the County where proceedings are conducted, and there are no restrictions on pay for such a necessary work as pre-trial discovery ("reasonable expenses out of court"), unless, again, there is an unspoken rule to assign only counsel who does not do "excessive" work for their clients, such as discovery and motions, and assigned counsel are concerned for their future earnings and do not do discovery (and pre-trial motions) in Family Court for that reason, which has nothing to do with their obligation to their client in the assigned case.

Assigned counsel has power to file ex parte applications in New York, pursuant to New York County Law 722-C for experts and investigators.

In fact, the soon departing Delaware County and Family Court Judge Carl F. Becker has made a point and a policy to repeatedly deny my clients who were eligible under County Law 722-C to receive funds for experts and investigators, their entitlement to those funds funds unless they agree to assigned counsel by Judge Becker instead of me, a private counsel hired by my indigent client's relatives, even though such policy was blatantly unlawful.

Thus, for Judge Becker (and, as far as I know through my own experience and reports of my clients and my readers) entitlement to funds under County Law 722-C are tied to having assigned counsel.

Therefore, an assigned counsel in many courts is the only path to get funds from the court for experts and investigators to do pre-trial work and prepare for trial testimony.

Yet, after years of litigating in Family Court, I have yet to see where an assigned counsel would apply for such funds for experts and investigators and who would present such experts and investigators and their work at trial, and that pertains to proceedings in custody, visitation, Article 8 family offense proceedings, child abuse and neglect. 

What can I say...

The indigent client must know their rights - and should be able to demand from his or her assigned counsel to do their job before trial - or ask the court to change counsel as providing ineffective assistance.

Having or not having done discovery (demands to produce, interrogatories, depositions), subpoening or not subpoening records from public entities for trial (DMV records, criminal records, social services records) which requires a motion to the court, or not doing that, subpoening or not subpoening trial witnesses, asking or not asking for funds for experts and investigators and having them do their work and present it at trial, may constitute a difference between winning and losing your custody, visitation, family offense or child neglect/abuse case.

Know your rights and insist on them.

One more point in favor of deregulation of the legal profession - talking to the regulator is like talking to a wall

I received today yet another "Affirmation in Opposition" from my disciplinary prosecutor Mary Gasparini.

In opposition to my uncontroverted assertion that Mary Gasparini disqualified herself by filing, as of January 28, 2015, criminal charges against me (dismissed before the initial appearance).

She would not have disqualified herself had she filed those criminal charges on somebody else's affidavit.

Yet, she has chosen to file multiple criminal charges upon her own affidavit, advancing those frivolous criminal charges as a prosecutor - and as the sole complaining witness - and as the alleged victim - a completely disqualifying set of roles.

In response to my assertion that Mary Gasparini is disqualified, she has provided the following "exhaustive" argument in paragraph 12 of her 2+ page "Affirmation":

"All remaining assertions regarding bias, disqualification, and recusal are without any factual basis or legal authority, are without merit, and should be therefore denied".

Mary Gasparini simply does not know how to answer factual assertions and citations to legal authorities in an attorney disciplinary proceedings (both of which were submitted to the court and served upon her).  Since attorney discpilinary proceedings in New York are so grossly unfair,  I understand that most attorneys find "alternative" ways of handling their disciplinary proceedings - either by admission to SOMETHING (whether they committed misconduct or not), just to cast the disciplinary inquisition a bone and to be able to escape with his/her law license, or by abandoning their practice completely, defaulting and thus allowing the disciplinary inquisition to take the law license and simply start a new life someplace else without that law license.

It is rare that an attorney fights the charges of misconduct for as long as I did, requiring the regulators to satisfy every procedural step and to make all substantive proofs - and the disciplinary committee did not meet those requirements.

Since usually attorneys do not litigate such charges, attorneys put in charge of prosecuting such proceedings obviously do not have to practice what they preach - professionalism, integrity, competence or adherence to ethical rules, or the rule of law.

Reading how Mary Gasparini asserts, again and again, despite the fact that both she and the referee were caught red-handed in using fabricated court transcripts, in not hearing the court-ordered hearing and thus defying the order of the appellate court, in submitting to the court, repeatedly, false statements in order to strip me of my due process right to work in my profession - and to provide help people through my professional services, reading all of that is absolutely surreal.

Did Mary Gasparini ever go to law school?

Did she ever pass the bar?

Did she ever take the oath of office as "an officer of the court", pledging to support the laws and Constitutions of the State of New York and the United States?

If she did, why does she continue to try to win a case where everything, from start to finish, constitutes fraud and shameful political persecution and where she must clearly see that no proof of my misconduct was provided to the court?

Why insist that "Judge /sic/ Sirkin found /sic/ that Respondent's pleadings did not raise any issue of fact, and therefore an evidentiary hearing on the petition is moot" if the ONLY duty that REFEREE Sirkin was supposed to discharge is hold the evidentiary hearing in question?

Mary Gasparini does not know how to read?

Or, Mary Gasparini refused to read the section of the New York State Constitution, Article VI paragraph 4 subsection (b) that provides that only a quorum of 4 appellate justices, with a concurrence of three such justices, can make decisions in the appellate court.

Therefore, Referee Sirkin (he is a RETIRED judge, and was never an appellate judge by the way, so he could never even be appointed as an appellate judge after retirement under New York law) had no authority to "find" anything ON THE PLEADINGS - WITHOUT A HEARING.

Well, at least, Mary Gasparini admitted in that statement that an evidentiary hearing that was ordered by the court was not held by referee Sirkin - and that referee Sirkin did make a decision to forego the evidentiary hearing, a decision that referee Sirkin had no authority to make.

Now we will see how the court will deal with the referee who refused to abide by the court orders.

The interesting part is that Mary Gasparini, with the help of the referee, is defying a court order ordering an evidentiary hearing in my proceeding, while at the same time has the audacity to pursue me for allegedly not "obeying an order of the tribunal" and not paying sanctions imposed upon me by Judge Becker after I sued him - that same Judge Becker who is, for some interesting and undisclosed reason, hastily abandoning his position 3.5 years before mandatory retirement.

What is the point of regulation of the legal profession if all that the regulation does is seeking to free the legal profession of those who truly work and truly provide to people actual valuable services, often for free or at a reduced rate - while helping out people who do not or would not accept the letter of the law as it is written if that letter is against their wishes and against the wishes of those who hold the key to their career advancement.

And they insist, as Mary Gasparini does, that all of that pretense for "justice" must be done behind closed doors, away from the very public Mary Gasparini is pretending to be protecting.

It is easy to state, in a conclusory manner, that "all remaining assertions ... are without any factual basis or legal authority".  The little problem is that - all assertions that I am making are, in fact, based on competent evidence and mandatory legal authority.

But, talking to Mary Gasparini is like talking to a wall.  Being a prosecutor - and a complaining witness - and the alleged victim in the dismissed criminal proceedings - Mary Gasparini simply does not know how to be impartial and professional with me, or how to rebut factual assertions and mandatory legal authorities with anything but conclusory statements.

We will see how the court will handle this epic mess on May 26, 2015.

Stay tuned.

The epidemic of selective illiteracy - or should we say selective misconduct - amongst state and federal American judges continues

I am sure that I am not the only person who has experienced on herself, as a litigant and as an attorney, this "phenomenon" - selective inability of judges, state and federal, to read.

The recent most interesting examples of this phenomenon included:

(1) Judge Gary L. Sharpe, the Chief Judge of the Northern District of New York, who sanctioned me for inability to read the 11th Amendment and who directed me to read it and find there that citizens of their own states are prohibited from suing their own states by the text of the 11th Amendment.

I read the 11th Amendment before and after that directive was made to me, before and after sanctions were imposed upon me, and I am still unable to find in it something that is not there.  Yet, Judge Sharpe did find there something that is not there - and sanctioned me based on his findings.

(2) The most recent case - Judge David Guy, originally of the Broome Surrogate's Court, assigned to the Delaware County removed Supreme Court case, but fighting an illusion that he was assigned to the Surrogate's Court case and ordering me and clerks of two courts to read the clear and unambiguous order of removal and of assignment of Judge Guy to the assigned case as if the order was erroneous, the case was not removed, and Judge Guy was assigned to the Surrogate's Court case.

(3) Judge Robert Mulvey, the Chief Administrative Judge of the 6th Judicial District, in one of the cases that I had in front of him, could not read submissions of my opponent who admitted that my client was incapacitated and incompetent (in a coma) and submitted to the court a court order of incapacitate from another state.  Under such circumstances, by statute, jurisdiction of the court, Judge Mulvey abated, and my authority to represent the incompetent  but Judge Mulvey made a decision that I did not provide to the court enough evidence of incapacitation of "my client" and made a decision against a person in a coma whom I could not, as a matter of law, represent, and told Judge Mulvey on record that I am not representing him, because he is adjudged incapacitated and his legal representative was not substituted.

Judge Mulvey was so upset by a lawsuit against him on behalf of my husband (and by my prior lawsuit against him on behalf of my husband, myself and another client) that Judge Mulvey could not even read correctly documents submitted to him by my opponent regarding incapacitation of my former client whom I could not continue to represent, as a matter of law, CPLR 1015, after his incapacitation occurred.

(4) I cannot say enough about selective blindness of Judges Elizabeth Garry, Molly Fitzgerald, Carl F. Becker (after a documented ex parte communication with my client's opponent's counsel), Kevin Dowd (after a documented ex parte communication with my client's opponent' counsel), Ferris Lebous (after a documented ex parte communication with my client's opponent' counsel) and of judges of the Appellate Division 3rd Department who affirmed decisions of judges Garry, Fitzgerald, Becker and Dowd, allowing the case Mokay v. Mokay to proceed - only because it led to the premature disbarment of my husband (without a hearing) and because they wanted to have that disbarment to continue.

Those elaborate 8-year efforts may be screwed at this time.

On April 7, 2015 Judge Dowd held an ex parte, secret bench trial where Judge Dowd,  subpoenaed by me as a trial witness, 

1. presided (which he had no right to do due to his disqualification because he was a subpoenaed trial witness), 
2. quashed subpoenas of my witnesses, 
3. disregarded my doctor-ordered medical leave, 
4. declared that I waived my client's right to a jury trial by not appearing at a scheduled trial when Judge Dowd knew my non-appearance was due to a documented medical disability, 
5. declared subpoena against himself and his secretary and law clerk "nullities", 
6. dismissed the jury;
7. conducted a non-jury trial himself;
8. had the court personnel mislead members of the public who wanted to observe the trial to prevent them from observing it, 
9. used the Facebook-friend-of-judge's-law-clerk stenographer,
10. admitted "documentary exhibits" (based on "non-jury trial minutes" that I obtained from the court clerk) at a sped of 19 seconds per exhibit

and may have done much more, based on documentary evidence of his ex parte communication in the Mokay case.

Judge Dowd engaged in ex parte communication with my opponents once, and I have documentary proof of that.

Thus, nothing would prevent him from doing that again.

So, the whole trial is not only illegal 

• because it was ex parte, 
• because it was tainted by secrecy, 
• because it was tainted by the judge subpoenaed as a witness presiding over the case (Judge Dowd, by the way, never moved to quash subpoenas against himself or his secretary and law clerk), but also 
• because there was no assurance that what the record created by the friend-of-the-law-clerk stenographer has any integrity to it, or that Judge Dowd is not engaging, as we speak, before he made the judgment on the case, in further ex parte communications with the Mokay plaintiffs and/or their counsel, as Judge Dowd and/or his office appeared to have done before - from documents I have on file.

All that mountain of work done by Judge Dowd and by Richared Harlem - with what incentive for Judge Dowd in mind, I do not know, maybe just out of hatred to me and my husband who sued him and exposed his incompetence in a pro se federal lawsuit - may become undone by the perjury of Daniel Mokay who, a month after the Mokay trial concluded, stated under oath that the essence of the case was misconduct of Daniel Mokay's father, the decedent.

On May 6, 2015 Daniel Mokay claimed under oath the following:

Since Richard Harlem and his father, retired judge Robert Harlem undertook to represent the decedent (his Estate) in February of 2006, Richard Harlem and Robert Harlem could not undertake to represent children of the decedent advancing a claim that their father committed misconduct and took what he was obliged to give to them, and ALL of Richard Harlem's legal fees, no matter what the number is, must be forfeited as a matter of law because of that irreconcilable conflict of interest, now confirmed, after the trial, as a new evidence, by Richard Harlem's client in the Mokay action Daniel Mokay.

Now let's see if judges will claim they do not know how to read the confession of Daniel Mokay or do not comprehend its meaning or implications for the Mokay case.