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CASES & COURTS Power to Order Blood Drawn From Driver Moved to Pa. Affirmed In a case of first impression, a Fourth Department panel has ruled that a Chautauqua County Sheriff's deputy had the legal authority to direct the withdrawal of blood from a driver in a single-vehicle motorcycle accident even after the driver was transferred to a hospital in Pennsylvania. "Under New York's implied consent law, any person who operates a motor vehicle within the state is deemed to have consented to a chemical blood alcohol test conducted 'at the direction of a police officer?having reasonable grounds to believe' such person to have been operating a motor vehicle" while under the influence of alcohol or drugs, Justice Erin M. Peradotto wrote for the 5-0 panel. United States v. Rodriguez U.S. COURT OF APPEALS, SECOND CIRCUIT Criminal Practice Hostage Taking Act Does Not Apply to Fifteen-Minute Detention White-Collar Crime Tuesday, December 1, 2009 By Robert G. Morvillo and Robert J. Anello Robert G. Morvillo and Robert J. Anello, partners at Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, write: The current U.S. Supreme Court docket includes a number of important cases that should be monitored closely by white collar practitioners. The Court is exploring the boundaries of the federal honest services law for the first time; re-examining the Confrontation Clause and its application to evidence sought from non-testifying forensic experts; and reviewing the ineffective assistance of counsel standard under the Sixth Amendment in the context of what attorneys must advise their clients about the collateral consequences of a guilty plea. Medical Malpractice Tuesday, December 1, 2009 By Thomas A. Moore and Matthew Gaier Thomas A. Moore, senior partner of Kramer, Dillof, Livingston & Moore, and Matthew Gaier, a partner with the firm, write that the potential ramifications of the Court of Appeals' decision in Fasso v. Doerr were far more onerous than the opinion recognized. By maintaining the right to recover should they not consent to settlements, health insurers were given considerable opportunity to thwart the will of the parties to settle unless they received the amount they demanded. The Legislature has now remedied these problems in the recently-passed Governor's Program Bill #95. 11 Reasons Why Privacy Benefits the Bottom Line Tuesday, December 1, 2009 By David Bender David Bender, a solo practitioner, writes: In dire economic times such as these, companies are scouring their internal functionalities seeking ways to run "leaner and meaner." Because the influence of privacy on profit is not immediately apparent, managers searching for excisable fat will doubtless be attracted to the privacy function, concluding that it makes no contribution to the bottom line. But although many view privacy solely as a legal concept, it often provides important commercial benefits. In the Wake of the 'Roberts' Decision, What Next? Tuesday, December 1, 2009 By David S. Hershey-Webb and William J. Gribben David S. Hershey-Webb and William J. Gribben, partners at Himmelstein, McConnell, Gribben, Donoghue and Joseph, write that a number of issues remain unresolved by the Court of Appeals' decision in Roberts v. Tishman Speyer Properties, LP, et al., including the issue of retroactivity, the regulatory status of apartments that were deregulated by landlords prior to receipt of J-51 benefits, the regulatory status of "market" apartments in buildings where the J-51 benefits have expired and the measurement of damages. Zoning Boards May Weigh Deceitful Conduct, Panel Rules Wednesday, November 25, 2009 By Anthony S. Guardino Anthony S. Guardino, a partner with Farrell Fritz, discusses a recent Second Department decision where the court had occasion to consider, given the amendments to the Town and Village Laws passed 20 years ago to bring a measure of statewide consistency to the variance application and review process, whether ongoing and deceitful representations by a variance applicant during earlier interaction with a planning board, and with a zoning board itself, permitted the denial of requested area variances on that ground alone. Corporate Securities Thursday, November 19, 2009 By John C. Coffee Jr. John C. Coffee Jr., the Adolf A. Berle professor of law at Columbia University Law School and director of its center on corporate governance, writes: "The Supreme Court has granted certiorari in, and will soon resolve, three related cases, all involving the scope of 'honest services' fraud under 18 U.S.C. §1346. By itself, this is unusual, because the Court usually takes only a single case and remands related cases for reconsideration in light of its decision. Also unusual is the fact that the Court is reconsidering the scope of mail and wire fraud, as §1346 was passed by Congress as a direct rebuff to the Supreme Court following the Court's last attempt (two decades ago) to trim the ineffably broad scope of the mail and wire fraud statutes." Corporate Governance Monday, November 30, 2009 In this Special Section from the New York Law Journal: "Failure of Oversight Claims Bar Still High," "Perspective: Pushing Back on Pressure for Independent Board Chairs" and "Say on Pay: Less May Be More." Also, in the highlighted article from this section, Focus Renewed on Risk Management Martin Nussbaum, a partner at Dechert, writes: "Every well publicized financial scandal and crisis brings with it a new focus, applied with the benefit of hindsight. The steep losses of shareholder value and, indeed, the failure of major corporations that have been hallmarks of the recent financial crisis have caused renewed focus on risk management, and the role of boards and key committees overseeing the risks that their businesses take."
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