In The News

County Court judge dismisses identity theft charges against two Brooklyn men

September 11, 2007

The Journal News

A County Court judge yesterday dismissed felony identity theft counts against two Brooklyn men because they were not tried within six months of being indicted by a grand jury.

The District Attorney’s Office said it would appeal Judge Victor Alfieri’s decision to the Appellate Division of the state Supreme Court. Alfieri’s 29-page ruling ended the prosecution of Thomas Cabot, 37, and Lamont Reddish, 25. Both men were arrested by Clarkstown police Aug. 31, 2006, at the Target store at the Palisades Center in West Nyack.

Both men were indicted Feb. 27 on two counts of first-degree identity theft, second-degree identity theft, and two counts of second-degree criminal possession of a forged instrument. The indictment came just within the six-month window allowed by law.

On a request to review the grand jury charges by defense lawyer Keith Braunfotel of Braunfotel and Frendel, Alfieri dismissed two identify theft charges out of the five felony counts on May 7.
The judge contended then that the prosecution provided insufficient evidence to support the two charges. Alfieri wrote that the prosecution could ask a grand jury to reconsider the two counts he just dismissed.

The prosecution asked for two weeks to decide but told Alfieri that they were ready for trial on the three remaining felony counts against Cabot and Reddish. The prosecution declined to re-present the two dismissed charges before the grand jury.

Braunfotel filed another motion to dismiss the remaining three felony charges, arguing the six months had elapsed between the indictment and the legal time for trial. The prosecution opposed the request, setting up a hearing before Alfieri. Alfieri went over the court record, including motions for adjournments in Clarkstown Justice Court and in County Court, according to his decision.

Alfieri, a former Clarkstown justice, wrote that he found Justice Court records lacking in documents on adjournments and other issues. Alfieri concluded that the two weeks sought by the prosecution to reconsider going before the grand jury extended the delay to 195 days – surpassing the six-month period for trial under state speedy trial law.

Alfieri wrote that if the prosecutors on May 7 stated they wanted to proceed to trial with the remaining three counts, he would have adjourned the case for trial. Alfieri’s ruling did note that the prosecution on May 7 announced its “readiness for trial” on the remaining counts.

Chief Assistant Prosecutor Louis Valvo yesterday disagreed with Alfieri’s rationale for his decision.
“When we answer ready for trial, we’re ready for trial,” Valvo said. “According to case law, once you enter ready for trial, the time limit stops. We disagree with the judge’s conclusions and we plan to ask for appellate review on several issues.”

Braunfotel said yesterday that he was happy for his client. Cabot had a record of 55 arrests and four felony convictions, so he faced up to seven years in state prison, Braunfotel said.

Braunfotel noted Alfieri wrote his decision was “case of first impression” essentially meaning the judge was breaking legal ground in his interpretation of the law.

“This is a case where the District Attorney’s Office delayed to a point where my clients were unfairly prejudiced,” Braunfotel said.

Zebrowski supports Assigned Counsel Plan

November 24, 2006

Rockland Review

Assemblyman Ken Zebrowski (D-New City) has announced his support for the Assigned Counsel Plan administered through the Rockland County Bar Association and his issuance of a proclamation to the Chairman of the Assigned Counsel Plan, Keith Braunfotel. Zebrowski noted the hundreds of thousands of dollars saved by the Assigned Counsel Plan over its years of operation.

Zebrowski stated, Not only is this method far cheaper than adding personnel to the County payroll with benefits, regular raises and immeasurable additional costs, but more importantly, the Assigned Counsel Plan provides indigent litigants with skilled practitioners and years of hands-on expertise with the lowest possible cost. Zebrowski added, The Proclamation to Keith Braunfotel was authorized long prior to the current dispute over the County Executive’s proposed change in the manner by which representation is provided. The proclamation recognizes Keith Braunfotel’s skill in administering this very effective plan for my constituents. It also notes the improvement and enhancement of the Plan accomplished under Keith Braunfotel’s leadership.

DWI Guilty Plea Draws Probation, Fines

December 10, 2005

The Journal News

Woman’s car struck man, 64, whose arm had to be reattached

NEW CITY – A Stony Point woman who was drunk when her vehicle hit a man crossing Railroad Avenue in Haverstraw before she drove off, was sentenced yesterday to probation and fines in County Court.

Nancy Delgado, 38, of 8 Jackson Ave., was sentenced on her guilty pleas to leaving the scene of an accident with personal injuries, a felony, and driving while intoxicated, a misdemeanor. She faced a state prison sentence of one to four years from County Judge Kenneth Resnik. Resnik sentenced Delgado to five years’ probation on the felony count and three years’ probation for driving drunk. He fined her a total of $3,500.

Kenneth Kirk, 64, was crossing Railroad Avenue on May 17 when he was hit by a white 1991 Subaru driven by Delgado, who had been drinking a local bar before getting into her car. Kirk, a sanitation worker for Frank J. Capasso & Sons, had just picked up lunch at a deli and was walking to his garbage truck. Kirk was airlifted to Westchester Medical Center in Valhalla. He at first was in a coma from multiple head and body injuries. His left arm was severed and then reattached. He has undergone surgeries and is undergoing rehabilitation.

The prosecution recommended that Resnik sentence Delgado to state prison, Chief Assistant District Attorney Louis Valvo said. He said Kirk suffered serious injuries that are debilitating. “He still has disabilities and has issues walking,” Valvo said. “He has recovered to some degree, but has lasting injuries.”

About a half-hour after the hit-and-run, Stony Point police stopped Delgado’s Subaru, which had front-end damage and a broken windshield, about 2 miles away on Beach Road. Haverstraw police said at the time that Delgado failed a field sobriety test.

Her lawyer, Keith Braunfotel, said yesterday that Delgado took full responsibility for her actions and was remorseful for injuring Kirk. He said this was her first experience with criminal court and her blood-alcohol level was 0.29. “She is extremely remorseful and she was apologetic immediately,” Braunfotel said. “She was prepared to do anything to make reparations to the family.”

Police To Keep Ranks In Merger

October 3, 2005

The Journal News

Haverstraw town, village departments reach tentative deal

Haverstraw town and village are close to reaching a modified police merger agreement that would allow most village police officers to keep their ranks when they join the town’s force in 2006. Town Attorney William Stein said Thursday that the agreement was still tentative, but that the heart of the deal would be to hire village sergeants and detectives at their present rank.

Originally, the merger agreement said village police sergeants and detectives would be hired by the town as first-rank patrol officers once the force disbanded at the end of this year. Knowing the village officers would be upset with losing their rank and salary, the village made an agreement with the Haverstraw village Patrolmen’s Benevolent Association to pay salary differences until the officers moved up in rank, or for up to four years.

The Haverstraw village PBA filed a civil service lawsuit against the town, and state Supreme Court Acting Justice William Nelson ruled in October 2003 that the state’s Civil Service Commission should be notified of the merger and that a police advisory board be created to consider issues of staffing and rank.

The ruling was a victory for village officers, who wanted to protect their jobs, said PBA attorney Keith Braunfotel in New City. Stein said the modified agreement should resolve major issues regarding the merger. “It makes everybody pretty much happy,” he said. “They’ll keep their ranks.”

But Braunfotel said he was disappointed because two officers, Administrative Sgt. Peter Murphy and Detective Sgt. Frank Alessio, would become plain sergeants. The modified agreement would “really demote two senior officers, ” Braunfotel said. John Slade, village PBA president, said he understood that there were financial restraints, “but it’s very unfortunate that those two positions are going to be eliminated.”

Stein said the matter regarding the detective sergeant was still under negotiation, but the village had already agreed to pay the salary difference if he became a plain sergeant. The village has also agreed to pay the difference in salary for seven sergeants. The town would pay them a first-rank patrol officer’s salary, and the village would fill the gap, which is about 15 percent additional, for up to four years. Stein also said the village would reimburse the salary difference for one of the three village detectives, but that the two others’ salaries would be fully covered by the town. Detectives make about 7.5 percent more than first-rank patrol officers.

Mayor Francis “Bud” Wassmer said he estimated that the village would pay the town about $100,000 a year to make up the salary differences, although he couldn’t be sure because the village would also partly cover any overtime. “This is better all the way around,” Wassmer said of the modified agreement, “because they can go up there with their rank and they have their seniority.”

Since village voters overwhelmingly approved the abolition of their Police Department at a referendum in June, the mayor was confident that residents would support the modified agreement. “It costs us the same because we’ve already agreed to pay the differential for four years,” he said. Stein said the town and village would finalize the agreement after Village Attorney J. Nelson Hood comes back from vacation in mid-October.

Rape Acquittal

April 6, 2005

The Journal News

Rape acquittal: Raymundo Berrios, 46, of 127 Bethune Blvd., Spring Valley, was found not guilty yesterday of first-degree attempted rape, a felony, and third-degree assault, a misdemeanor. He was arrested by Spring Valley police Aug. 14 and indicted by a county grand jury Sept. 8. He was accused of attempting to forcibly rape a woman and intentionally injure her. The jury heard the case yesterday and reached a verdict in the afternoon, the district attorney said. Raymundo Berrios was represented by Keith I. Braunfotel of New City, not guilty.

Officers’ Ranks May Transfer

February 12, 2005

The Journal News

Appeals panel sides with village PBA in Haverstraw merger

A state Supreme Court ruling that could allow Haverstraw village police officers to keep their ranks when they join the town’s force in 2006 has been upheld by a state appeals panel.

Haverstraw village in 2002 was threatening to abolish its police force unless Haverstraw town agreed to a consolidation. Under state law, the town would have been required to assume policing of the village without benefit of planning if the village force were abolished precipitously. The village force, like other police departments, has struggled with mandated salary increases and soaring health and retirement costs. Unlike other municipalities, however, the village and its working-class residents felt the pinch more because of their limited revenues.

A consolidation agreement was reached in March 2003, and the town agreed to pay the village $5.2 million during the next three years to assist with the cost of operating its police force.

The Haverstraw village Patrolmen’s Benevolent Association filed a lawsuit in August 2003 against the town because its seven sergeants and four detectives wouldn’t be hired at their present ranks when the force disbanded Dec. 31, 2005. State Supreme Court acting Justice William Nelson ruled in October 2003 that the state’s Civil Service Commission should be notified of the merger between the town and the village police departments. He also ruled that a police advisory board be created to consider issues of staffing and ranking.

An eight-member board, consisting of the town and village police chiefs, town supervisor, village mayor, a state-appointed official and three other police chiefs, would make recommendations to the state commission about the rank that current employees would be assigned in the town police force.

Town Supervisor Howard Phillips disagreed with Nelson’s ruling that the merger was a consolidation, saying the village was abolishing its force. He said that meant the village was turning over its power to make administrative decisions to the Town Board. But during public discussions of the merger as early as 2002, Town Board members themselves described it as a consolidation.

In its Feb. 7 ruling, the state Appellate Division stated that a consolidation was what was being contemplated. It also ordered the creation of a police advisory board in accordance with state Civil Service Commission law.

The village’s Patrolmen’s Benevolent Association was represented by Keith Braunfotel of New City. He said it was unfortunate the lawsuit had to be filed and said the Town Board should have included the village PBA in its discussions with the village board.

“Through no fault of their own, village officers would suffer the effects not only economically, but also the anguish of being stripped of an accomplishment in obtaining rank,” Braunfotel said yesterday.

The Haverstraw Town Board was represented by Ronald Longo of the Keane and Beane law firm in White Plains. He said yesterday that he could not comment because he had not discussed the ruling with the board. Town Hall was closed for Lincoln’s Birthday.

Spring Valley-based attorney Raymond Kruse represented the Haverstraw town PBA. He said the union’s members would discuss the new ruling and any possible appeal when they convened Feb. 17. Kruse said the town officers’ contract had expired and they were in negotiations with the town. He also said an advisory board only advised and its recommendations were not binding.

2 Men Acquitted Of Attempting To Burglarize House

October 16, 2004

The Journal News

A County Court jury found two Rockland men not guilty yesterday of attempting to burglarize a Spring Valley house in April. The jurors acquitted Dennis Young and Jason Jennings of second-degree attempted burglary, a felony, after a two-week trial before Judge Kenneth Resnik.

A grand jury indicted Jennings, 24, of 133 Camp Hill Road, Pomona, and Young, 29, of 15 Gesner Drive, Spring Valley, on April 16. They were accused of using force to try to enter the house on Herrick Avenue. The trial began Oct. 4 after jury selection and opening statements by prosecutor Gary Lee Heavner and the defense lawyer, Keith Braunfotel.

The main prosecution evidence was an eyewitness who testified that he saw the men try to break into the house and then called the police, said Braunfotel, who represented Young during the trial. “This case has reassured me that the system works and innocent men have been set free ,” Braunfotel said.

Braunfotel said his client faced up to 15 years in prison if found guilty because of a previous conviction. District Attorney Michael Bongiorno said Heavner prosecuted Jennings and Young based on the evidence provided. “While we are disappointed with the verdict, we accept the decision of the jury,” Bongiorno said.

Town To Appeal Ruling On Police Jobs

November 27, 2003

The Journal News

Village officers keep rank as departments merge, judge says

Haverstraw town officials plan to appeal a state Supreme Court judge’s decision that would allow village police officers to keep their ranks when they join the town’s force in 2006. Acting Justice William Nelson ruled last month that the state’s civil service commission should be notified of the merger between the town and the village police departments and that a police advisory board be created to consider issues of staffing and ranking, officials said.

An eight-member board, consisting of the town and village police chiefs, the town supervisor, the village mayor, a state-appointed official and three other police chiefs, would make recommendations to the state commission about the rank that current employees would be assigned in the town police force, officials said.

The Haverstraw village Patrolmen’s Benevolent Association filed a lawsuit against the town in August because its seven sergeants and four detectives weren’t going to be hired at their present rank when the force disbanded on Dec. 31, 2005.

The town Police Department, which has 44 full-time officers and four part-timers, would absorb the village’s 23 full-time officers and three part-timers Jan. 1, 2006.

Village PBA president Ed Devoe referred calls to PBA attorney Keith Braunfotel of New City.

“They felt it wasn’t fair,” Braunfotel said. “We filed a lawsuit to force the town of Haverstraw to report the merger to the state’s civil service to review the procedures of the merger and to help the sergeants and detectives remain in their current positions. “The village decided to disband its Police Department in March, after years of struggling with increased salary, health and retirement costs. The town agreed to pay the village about $5.2 million during the next three years to cover the cost of operating its force.

Town Attorney William Stein said that since the village was disbanding and getting out of the “policing business,” the town should have the ability to appoint officers as it sees fit.

“The town should be in the position to have full control of who will serve in the various ranks in the department,” Stein said. “One key part of the agreement is that the town has agreed to hire all of the village’s police officers. None are losing their job. “The town will appeal the decision in the next two weeks, Stein said. Knowing village officers would be upset that they would be losing their rank and salary once a merger was complete, Mayor Francis “Bud” Wassmer said, the village board negotiated an agreement with the town to pay the officers the difference until they moved up in rank. They also would be put on a preferential list when officers were selected for a promotion, he said. But Wassmer said he understood why the PBA sued the town. “If I was a police sergeant, I would want to keep my rank too,” Wassmer said. “It’s not just because of the pay, but the prestige. You’re given a leadership role and you’re also eligible to move on to the next rank.”

Town Supervisor Howard Phillips disagreed with Nelson’s ruling that the merger between the police departments was a consolidation of both forces, saying that the village was abolishing its department. Therefore, he said, the village was turning over its power to make administrative decisions to the Town Board. “It’s only logical that we be able to select the officers who are most qualified for vacancies or newly created positions,” Phillips said. “That’s not to say that they (village officers) won’t be chosen for them.”

Braunfotel said the court decision was a huge victory for village officers and a step toward protecting the jobs of those village sergeants and detectives who were wrongfully being stripped of their rank.

“It’s not about money, it’s about position,” Braunfotel said. “We didn’t sue for money or damages, we just want our jobs.”

Rise In Court Fees Overdue

July 13, 2003

The Journal News

Increase will help pay lawyers assigned to represent poor state rates were among lowest in U.S.

The costs of filing lawsuits and appeals are among the state fees increasing tomorrow, partially to finance paying lawyers more to represent poor people accused of crimes and involved in Family Court cases. The new fees include raising the cost of filing lawsuits from $185 to $210, while the cost of appealing cases will jump from $50 to $65. The state also added first-time costs for filing motions and lawsuit settlements. Those revenues, along with anticipated millions of dollars in other higher court-related fees, are earmarked for improving court facilities and paying for higher reimbursement rates for private lawyers who agree to represent poor people, officials said. Gov. George Pataki proposed the higher court fees and rates for lawyers in his proposed 2003-2004 budget, which the state Assembly and Senate approved. In most cases, the higher court costs will be borne by litigants or the lawyers who work on contingency fees in civil cases, attorneys said yesterday.

Lawyers have long advocated an increase in fees for representing poor people under the state’s 18b Assigned Counsel Plan. Since 1985, those lawyers have been paid $25 an hour for appearing in court and $40 per hour for work outside court. Those are among the lowest rates in the country. Starting in January, the state would pay assigned counsel $60 per hour for misdemeanor defenses and $75 per hour for felony cases. Law guardians who appear in Family Court on behalf of children will be paid $75 per hour. “There is absolutely no question that the raise in 18b Assigned Counsel rates was needed,” said James Mellion, president of the Rockland Bar Association. “Our 18b reimbursement rates in this state are a disgrace,” Mellion said. “Nearly every state in the country had higher rates. Lawyers lost money representing clients, and the state was losing lawyers willing to work for indigent clients. “Amy Paterson, executive director of the Westchester County Bar Association, said she hoped the higher court fees would pay for law-related issues in the state.

“The raising of the 18b rates is long overdue,” she said. “We would like to see the rates higher, but this is at least going in the right direction after all these years. “The reimbursement rate was so low that some lawyers declined to represent poor people, officials said. Lawyers who practice in New York City partially boycotted Family Court last year, forcing a judge to increase their rate in individual cases. Private attorneys in Rockland charge fees that can reach $7,500 to $10,000 for a felony charge, depending on the severity of the alleged crime. The costs of defense can include paying for court transcripts, researching legal issues, and hiring investigators and expert witnesses. The Rockland Public Defender’s Office remains the first line of defense for poor people. But the office often cannot represent co-defendants or if there are other legal conflicts in a criminal case. In several hundred felony and misdemeanor cases yearly, private lawyers are drafted under the assigned counsel plan. Rockland has not experienced problems getting lawyers to accept assigned counsel cases, Bar Association officials have said. When nearly two dozen people were charged recently with felony drug crimes, most of the defendants were represented during their arraignments by lawyers under the assigned counsel program.

“Attorneys in Rockland have always risen to the challenge, despite the low rates of compensation,” said Keith Braunfotel, who has chaired the Rockland Bar Association’s assigned counsel program for nearly three years. Braunfotel said lawyers were pleased by the state increase but believed assigned counsel lawyers should be paid the same $100-an-hour rate as those who work in federal courts. “We’re still requesting parity with them,” he said. “But we are at least rising up the ranks among states across the nation.” The higher fees only affect people who are involved in the court system, lawyers said. Braunfotel said most lawyers involved in civil cases work on a contingency basis, meaning they are paid out of settlements or jury verdicts. He also said lawyers also are paying $400 for a license, up from $300.

“The increase in court fees is not really costing the average taxpayer any money,” he said. “Law firms pay out the money when they litigate a case. The client eventually pays. So do the lawyers if they don’t win. “Mellion said the increased court fees were not that dramatic, but did illustrate the rising costs of civil litigation, such as filing a lawsuit. “There are folks out there who have legitimate claims and who might have been wronged,” Mellion said. “But they frankly don’t have access to make their claims in court because of the high costs of litigation. “State legislators said they accepted the fee increases because of the higher payments for the defense lawyers and the need for revenues. The state created a $64 million Indigent Legal Services Fund to pay for the higher legal costs. The fund will receive money from a variety of new and higher fees, including $35 surcharges for traffic scofflaws and license reinstatement, as well as the $350 registration fee for lawyers, who saw their payments to the state rise by $50.

“Generally, raising fees is never a good thing,” Assemblyman Ryan Karben, D-New Hempstead, said. “The governor proposed these increases for a good reason. Lawyers were leaving the assigned counsel program. The alternative is only providing legal representation for the rich, and that is not an acceptable alternative. “Poor people can be exempted from paying some of the increased court fees for appeals under changes added by the Assembly, said Jeremy Tomasulo, a spokesman for Assemblyman Alexander Gromack, D-Congers. “Most of those court fees have not been raised for 10 years,” Tomasulo said. “While a vast majority of the revenues will go to the state’s general fund, some of the money will directed toward the assigned counsel plan. “State Sen. Thomas Morahan, of New City, said the state fees will finance higher rates for legal assistance and provide more money for the state. “I defy anyone to separate the fees as revenues for one program over another,” Morahan said. “The fees were increased to offset the overall costs of the assigned counsel rates and raise money. It was time for an adjustment. “The concept of state-appointed defense attorneys became the nation’s law in 1963, when the U.S. Supreme Court ruled the Constitution provides that all people accused of crimes must be represented by a lawyer in court, even if states pay the costs of a lawyer.

The case, Gideon vs. Wainwright, was brought after Clarence Earl Gideon of Florida could not afford a lawyer and was not represented in court when convicted of breaking into a pool hall. The Supreme Court previously allowed the states to decide when a poor person needed a lawyer. Gideon denied the charge and was acquitted at trial when represented by a lawyer. In granting Gideon a new trial and a lawyer, Supreme Court Justice Hugo Black wrote, “Any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. … Lawyers in criminal courts are necessities, not luxuries … The right of one charged with crime to counsel may not be deemed fundamental in some countries. But it is in ours.”

Forgery Acquittal

February 23, 2001

The Journal News

Forgery acquittal: Llewellyn George, 32, whose last known address was in Yonkers, was found not guilty Wednesday in County Court of second-degree forgery, a felony, and second-degree criminal possession of a forged instrument and petty larceny, both misdemeanors. George was indicted July 14 by a county grand jury. He was accused of trying to buy a $300 gift certificate at The Gap in the Palisades Center mall using a forged American Express card on Dec. 6, 1999. On Feb. 7, after three days of deliberation, a jury was declared deadlocked by Judge William Kelly. On Wednesday, a second jury found George, who was represented by Keith I. Braunfotel of New City, not guilty.

Practice Areas