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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 13, 2009
THE PEOPLE OF THE STATE OF NEW YORK,RESPONDENT,v.WILLIE JAMES, JR.,DEFENDANT-APPELLANT.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered June 14, 2005.
The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15 [3]). Defendant failed to preserve for our review his contention that the plea was not voluntarily entered (see People v Jennings, 8 AD3d 1067, 1068, lv denied 3 NY3d 676).
"Although defendant's initial factual allocution may have negated an essential element of the crime, this case does not fall within the exception to the preservation rule because [Supreme Court] conducted the requisite further inquiry and defendant did not thereafter raise any further objections or move to withdraw his plea or to vacate the judgment of conviction" (id.; see People v Lopez, 71 NY2d 662, 666; People v Petersen, 60 AD3d 1365). The bargained-for sentence is not unduly harsh or severe.
Patricia L. Morgan Clerk of the Court
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BRIEF-Moody's says assigns Aa2 to $850m NYC GO bonds, Fiscal 2017 Series B
* Moody's assigns Aa2 to $850m NYC GO bonds, Fiscal 2017 Series B; Outlook stable Source text: (http://bit.ly/2gKbRjg)
BERLIN, March 18 Germany will save at least 15 billion euros over the coming decade thanks to its "safe haven" status among investors fleeing the euro zone debt crisis, which has driven down Berlin's borrowing costs, a leading German institute said on Monday.
Germany's rock-bottom interest rates, which are helping the government to cut its own debt and achieve a balanced budget, stand in sharp contrast to euro zone peers such as Greece and Portugal which remain locked outside global financial markets.
The findings of the independent Kiel Institute for the Economy (IfW) coincide with an upward tick in borrowing costs for struggling euro zone states, after a relatively subdued few months, due to inconclusive elections in Italy.
A controversial bailout for Cyprus over the weekend that includes a levy on that country's bank deposits has also rattled investors, increasing the allure of German debt and adding to upward pressure on that of euro zone periphery states.
In 2013 alone the "safe haven effect" will net savings for the federal government of around two billion euros, according to IfW expert Jens Boysen-Hogrefe.
Investors have flocked into German debt especially from 2011, the IfW study showed, pushing yields below rates set by the European Central Bank.
The study could increase calls from Germany's euro zone peers to do more to boost its domestic demand. Chancellor Angela Merkel's government has encouraged employers to grant higher wage increases but resisted pressure to cut taxes or boost spending, saying its priority must be to cut the country's debt.
Last week, the government announced net new borrowing would sink to 6.4 billion euros in 2014, its lowest level in four decades, and that its structural deficit would be eliminated.
It also said Germany would take on no new debt in 2015 and would have a budget surplus of 5 billion euros in 2016.
Surging tax revenues - the result of strong growth and low unemployment in Europe's largest economy - have also contributed to Germany's healthy budgetary situation.
* Moody's assigns Aa2 to $850m NYC GO bonds, Fiscal 2017 Series B; Outlook stable Source text: (http://bit.ly/2gKbRjg)
BOSTON, Dec 2 Donald Trump's U.S. presidential election win gave a huge boost to some prominent hedge fund portfolios, helping them post double-digit gains in November, several investors said.
CHICAGO, Dec 2 U.S. coal producer Peabody Energy Corp said it would seek court approval to repay a $500 million term loan ahead of schedule because it has enough cash to operate in bankruptcy thanks to a rise in coal prices.

subset: commoncrawl


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K D Hall Images Photographer
Chasity Rayne SauroModel Female Virginia Beach, Virginia, US
My Website: Fan and IMDb PageMy MM URL: http://www.modelmayhem.com/csauro
Mayhem # 2984677
About MeMy name is Chasity Sauro and I am a happy go lucky female who enjoys her work as a model/cosplay model. If there is any questions that you like to know or you like to have a commission or photo shoot you can easily email me on this website or on one of these places:
*~ www.facebook.com/momcosplayer
*~ twitter.com/csauro20s
*~ www.youtube.com/user/misatominaanime99
*~ www.cosplay.com/member/84079/about/
*~ cosplaymom.deviantart.com/
Have you worked with Chasity Rayne Sauro? Add Credits for Chasity Rayne Sauro! >>
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"Chasity was a delight to work with free spirited and uninhibited she came to the shoot with a can do attitude and was willing to work in new genres to expand her experience and portfolio. She brought a delightful Gothic outfit and when snowflakes began to fall during the shoot... she continued on and we were still able to get enough images to complete the task. I will work with her again." more less
See Sample Worked together 1 times; Most recent: January 2016
K D Hall Images Photographer
Mahone Images Photographer
DareDevil Photo Photographer
Terence Photographer
ubermono Photographer
Curt Photographer
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text: 000 FXUS65 KVEF 051142 CCA AFDVEF Area Forecast Discussion National Weather Service Las Vegas NV 342 AM PST Mon Dec 5 2016 .SYNOPSIS...Northwest upper-level flow and a ridge of high pressure in the eastern Pacific will keep the area dry and slightly warmer than average early this week. A cold front will move through the area Tuesday night and Wednesday leading to breezy conditions in the Colorado River Valley Wednesday and the coldest temperatures of the season so far across the region Thursday morning. && .SHORT TERM...through Wednesday night. The forecast area will be under a dry northwest flow aloft through the short term. However, there will be some high cloud cover passing through at times. A shortwave trough passing by to our north late Tuesday and Tuesday night will drive a cold front down across the region Tuesday night into Wednesday. Gusty west to southwest winds are likely ahead of the front across portions of San Bernardino and Mohave Counties Tuesday afternoon with areas of breezy north winds developing behind the front Tuesday night and Wednesday. The strongest north winds will be down the Colorado River Valley Wednesday. It appears that the latest model guidance has backed off somewhat on the strength of the winds associated with this front and also the degree of cooling. Significant cooling is still expected Wednesday with highs 5 to 10 degrees cooler than today and Tuesday. Low temperatures Wednesday night may still be the coolest of the season so far but at this point look to remain above levels requiring issuance of a hard freeze warning for the deserts. .LONG TERM...Thursday through Sunday. Not much change to the long term forecast this morning. Models are in good agreement that the prevailing flow will become increasingly zonal in the wake of the mid-week system. However, the details of the fast-moving shortwaves embedded in the 100kt+ jet just north of our area are still quite muddled. In general, periods of fast-moving high clouds and temperatures climbing back to above normal are expected through the long term period. The embedded shortwaves do appear to have a decent moisture tap associated with them. However, with the speed of the flow expect the precipitation chances to be mainly limited to near the Sierra crest, with only a very slight chance of spillover into the southern Great Basin. An extended period of gusty winds are likely in the Sierra late this week into the weekend. && .AVIATION...For McCarran...Light, diurnally-driven winds and VFR conditions are expected through Tuesday morning. Periods of high clouds will move across the area from northwest to southeast through tonight. For the rest of southern Nevada...northwest Arizona...and southeast California...Light, diurnally-driven winds and VFR conditions are expected across the area through Tuesday morning. Periods of high clouds will move from northwest to southeast across the region through tonight. && .SPOTTER INFORMATION STATEMENT...Spotter activation will not be needed. && $$ Short Term...Harrison Long Term...Wolcott For more forecast information...see us on our webpage: http://weather.gov/lasvegas or follow us on Facebook and Twitter


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ERIC Number: ED163717
Record Type: RIE
Publication Date: 1977-May-31
Pages: 54
Abstractor: N/A
Reference Count: 0
Development and Implementation of a Post-Master's Level Internship Training Program to Prepare Therapeutic Recreation Consultant Personnel. Final Report.
Goldstein, Judith E.
The final report details activities, goals, and objectives of a 3-year federally funded project to develop a post-master's internship training program for therapeutic recreation consultants. Described are the development of a training module package, job development activities, intern training programs, and Project Advisory Committee activities. Activities of six interns are summarized. A final section presents observations, conclusions (regarding consultation, the training prototype, interns, and job development), and recommendations (concerning the consultant role and professional preparation and consultation competencies). (CL)
Descriptors: Consultants, Handicapped Children, Higher Education, Internship Programs, Job Development, Recreation, Training
Publication Type: Reports - Research
Education Level: N/A
Audience: N/A
Language: English
Sponsor: Bureau of Education for the Handicapped (DHEW/OE), Washington, DC.
Authoring Institution: National Recreation and Park Association, Arlington, VA.
Identifiers: Final Reports; Therapeutic Recreation
Note: Reproduced from best copy available


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4 Child Care Jobs Found
part time sitter
Posted by Hilary M. on 12/8/2016
- Start date:
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- 21 miles away (Hurley, MS)
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I need someone to watch my 1 year from 8-4 Tuesday, Wednesday, and Thursday. I also need the same person to pick my 4 year old up from preschool at 11 and watch them until 4. Preferably in your home. I would like references but they are not required.
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My schedule never stays the same I need someone who can be flexible enough to work with my schedule
Baby sitter for twin 6 year olds at the...
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Windows 10 L2TP VPN Setup Howto Screencast
Automated Setup
Compatible with Windows XP, Vista, 7, 8 and 10
Manual Setup
Step 1
Click Start button in the bottom left corner of the screen (the one with Windows logo). Go to "Settings".
Step 2
Go to "Network & Internet".
Step 3
Select "VPN" in the menu on the left.
Step 4
Click "Add a VPN connection"
Step 5
For the "VPN Provider" select "Windows (built-in)" Connection name can be any as you like for example StrongVPN. "Server name or address" is your server address, you can find it in the Customer Area. It is not vpn-XXX.reliablehosting.com, that is just an example. For "VPN type" select "Layer 2 Tunneling Protocol with IPsec (L2TP/IPsec)".
Step 6
Scroll the window if needed and fill the "Username" and "Password" fields. For manual setup username is not your email and the password is not your password for Customer Area. You can find these credentials in the Customer Area, same place where the server address is located. Check "Remember my sign-in info" and click Save button.
Step 7
Click "Change adapter options".
Step 8
In the connections list find the StrongVPN connection, the description should be "WAN Miniport (L2TP)". Right click on it and select "Properties".
Step 9
Click "Security" tab, then Advanced settings button.
Step 10
In the appeared window select "Use preshared key for authentication". The key can be found in the Customer Area. Then click OK and OK again. Close the "Network Connections" window.
Step 11
After that go back to Network & Internet Settings window, you will see the VPN connection. Click on it.
Step 12
Click the Connect button.
Step 13
After a while it will connect and show you "Connected" status.
Step 14
You can also check the VPN status in the Network applet (the icon in your system tray at the bottom right).
Next time just Connect/Disconnect button
Step 15
To be sure if you are successfully connected please visit strongvpn.com in your web browser and check your "IP address" at the top of the page
Helpful Pages
- General Troubleshooting - If you have been able to connect but now are experiencing poor performance or connection issues.
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Houses for Rent in 29580, SC
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India Adhesives Market Forecast and Opportunities, 2020
|TechSci Research
|英文 101 Pages
商品交期: 最快1-2個工作天內
|印度的黏劑市場市場預測以及今後的商務機會 India Adhesives Market Forecast and Opportunities, 2020
|出版日期: 2015年08月25日
|內容資訊: 英文 101 Pages
※ 本網頁內容可能與最新版本有所差異。詳細情況請與我們聯繫。
Adhesives are categorized on the basis of polymer type as polyurethane, acrylic, epoxy, vinyl and rubber based adhesives. Packaging, construction and automotive sectors are the largest consumers of adhesives in India. Increasing disposable income, rising GDP, changing lifestyles and rapid urbanization are driving the packaging, construction and automotive sectors in India, thereby propelling demand for adhesives in India. On the basis of formulation technology, water based adhesives is the leading category in the country's adhesives market. Water based adhesives are widely used in various end user industries such as construction, textile, label and packaging due to their environment friendly nature and absence of VOC emissions.
According to TechSci Research report, "India Adhesives Market Forecast & Opportunities, 2020", adhesives market in India is projected to cross 379 thousand metric tons by 2020, on account of growing packaging and flexible packaging, rapid urbanization, increasing infrastructure and rising automobile vehicle production in the country. Western states of India dominated the sales of adhesives in 2014 and it is forecast to continue through 2020, due to higher concentration of infrastructure and real estate projects, road and metro railways, automobile and furniture manufacturing units in the region. Few of the leading companies operating in adhesives market in India include Pidilite, Henkel, Sika, Bostik and Metlok.
"India Adhesives Market Forecast & Opportunities, 2020" report elaborates following aspects related to adhesives market in India:


text:
Matthew Grubtill is a suspect in a fire that occurred Saturday morning at St. Joseph's Catholic Church in Broken Bow. Firefighters were called there at 8:45 a.m. after someone noticed smoke and called 911.
Grubtill is charged with arson and criminal mischief. He's being held in the Custer County Jail.
The State Fire Marshal's Office made the arson determination.
Authorities are investigating another possible suspect in the fire.


text:
Contact Us 1 day ago
2002 Mercedes-Benz G-Class G500 - 72708880
2002 Mercedes-Benz G-Class G500This 2002 Mercedes-Benz G-Class is offered to you for sale by Gurley Leep Motor Werks. In their original incarnation, SUVs were chiefly owned by folks who valued utility above sport. Not anymore! The Mercedes-Benz G-Class redefines the SUV and makes the perfect all around family companion. Exceptional in every sense of the word, this incredibly low mileage vehicle is
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South Bend, IN
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Mercedes Benz G500 G Wagon - $39 (Denver)
Nice Mercedes G wagen for sale. New 22" wheels, tires, rear breaks. New 2016 headlights, tail lights, and grill. 116k miles. Recently got it serviced. Runs strong. Clean title. $39,900 oboNo trades. Only Call if seriously interested. Thanks 72O-5O3-5O32G55 g550 gwagon gwagen
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Rocky Mountains, CO
$11,600.00 2 weeks ago
$11,600, 2003 Mercedes-benz Gl-class G500
The car is in great shape does not have any mechanical problem what you see is what you get .clean and in greatshape both the interior and the exterior.the great g class has DVD player remote key . Geyser Lane,10598 google map | yahoo map
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Hudson Valley, NY
$29,991.00 3 weeks ago
Used 2004 Mercedes-Benz G500
You dont find a pre-owned Mercedes Benz G Class SUV very often - but here it is! This is a 2004 Mercedes-Benz G Class 4 door SUV with the 5.0 V8 engine. With 127,187 miles, its hardly been broken in! It has a sunroof, wood accents, large cargo space and family friendly! Great price too! Come see it today at Noel Daniels Motor Company 611 W Government St in Brandon, MS right next to Penns. noeldani
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Jackson, MS
$39,501.00 1 month ago
Used 2003 Mercedes-Benz G500
SUNROOF/MOONROOF, HEATED LEATHER SEATS, Steering Wheel Controls, Power Locks, Multi-zone Climate Control, Power Windows, Keyless Entry, Cruise Control, and Trailer Hitch. G500 Base 4MATIC , 4D Sport Utility, 5.0L V8 SMPI SOHC, 5-Speed Automatic with Overdrive, 4MATIC , Silver, and Leather. Free oil changes for a year or 15k miles.This handsome-looking 2003 Mercedes-Benz G-Class is the rare family
1 month ago
Boone, NC
$34,900.00 1 month ago
Used 2002 Mercedes-Benz G500
Midnight Blue metallic over Silver leatherThe paint is 7/10, there are scratches in the clear coat here and there from off road use, but the truck still very much looks the part of a baller when its given a wash. I will get the car freshly detailed and have paint correction done when we agree to termsThe interior is 9/10, everything is in good condition. Has grey weather tech matts, that are start
1 month ago
Panama City, FL
$48,562.00 1 month ago
Used 2007 Mercedes-Benz G500
New Price! Navigation System, Heated Seats, Power Sunroof/Moonroof, Rear Entertainment System, Grill Guard, 10 Speakers, Head restraints memory, Security system. This 2007 Mercedes-Benz G500 AWD offered at Spike Dykes Ford, Lamesa is Reagor Dykes (RD) Certified, meaning they have gone through a rigorous used vehicle inspection to ensure only the highest quality purchase possible!Obsidian Black Met
1 month ago
Lubbock, TX
Contact Us 1 month ago
2002 Mercedes-Benz G-Class G500 - 70225571
2002 Mercedes-Benz G-Class G500Four Wheel Drive, Traction Control, Stability Control, Locking/Limited Slip Differential, Tires - Front Performance, Tires - Rear Performance, Aluminum Wheels, Power Steering, 4-Wheel Disc Brakes, Abs, Brake Assist, Running Boards/Side Steps, Automatic Headlights, Fog Lamps, Daytime Running Lights, Heated Mirrors, Power Mirror(S), Power Folding Mirrors, Privacy Glass
1 month ago
Allentown, PA
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$39,900.00 1 month ago
Used 2002 Mercedes-Benz G500
This 2002 Mercedes-Benz G500 is equipped with the following options: automatic transmission, power seats, power windows, power door locks, leather interior, am/fm cd player, alloy wheels, dual air bags, air conditioning, cruise control, keyless entry, sunroof, navigation and much more!! DONT WAIT, CALL TODAY!! This is a North Carolina vehicle! Impex Auto Sales is the Triads LARGEST independent Pre
1 month ago
Danville, VA
$34,900.00 1 month ago
Used 2004 Mercedes-Benz G500
4X4!! NAVIGATION!! REVERSE CAMERA!! SUNROOF!! HEATED BUCKET SEATS!! WOODGRAIN!! WINDOW TINT!! FACTORY CHROME RUNNING BOARDS!! TOWING PACKAGE!! NEW 20 AMG WHEELS!! NEW DUNLOP TIRES!! PLEASE DO NOT HESITATE TO CALL KEN, JB OR KYLE DIRECT WITH ANY FURTHER QUESTIONS OR TO MAKE ARRANGEMENTS FOR PURCHASE AT 601-602-4500. For more information visit our website at www.paceautosales.com or call 601.602.450
1 month ago
Hattiesburg, MS
$39,500.00 1 month ago
Used 2004 Mercedes-Benz G500
A/C ice cold. All scheduled maintenance. Always garaged. Custom wheels. Satellite radio. Title in hand. Upgraded sound system. Very clean interior.
1 month ago
Fort Myers, FL
$59,977.00 1 month ago
Used 2008 Mercedes-Benz G500
Leather Seats,Sun/Moon Roof,Navigation System,Four Wheel Drive,STANDARD PAINTThis vehicle is Guaranteed to be RECALL FREE. This 2008 Mercedes-Benz G-Class 5.0L is proudly offered by Mercedes-Benz of North Orlando This beautiful Obsidian Black Metallic Mercedes-Benz G-Class 5.0L qualifies for the CARFAX BuyBack Guarantee. Just say Show me the CARFAX and Mercedes-Benz of North Orlando will provide t
1 month ago
Central Florida, FL
$48,990.00 1 month ago
Used 2007 Mercedes-Benz G500
Coming soon/Pre sale viewing:Only 58,100 Miles, G500, Hard to find in this condition! So clean, you cant even tell its used. Stability and traction control grant you permission to zigzag. Home of the Low Price Guarantee and #1 customer service promise.Buying used shouldnt mean having to buy somebody elses old ashtray-on-wheels. To some, that simple desire makes the pleasingly fresh, never-smoked-i
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SHANGHAI — PepsiCo, Inc. has announced it will invest another $2.5 billion in China during the next three years. This is in addition to the $1 billion investment the company announced in 2008.
"I am delighted to announce that over the next three years we expect to invest $2.5 billion in our food and beverage businesses in China," said Indra Nooyi, chairman and chief executive officer. "This investment reflects very clearly our great confidence in China and our long-term commitment to this very important growing market. We look forward to continuing to evolve our business in China and offer Chinese consumers a full portfolio of foods and beverages ranging from soft drinks and juices to oatmeal and savory snacks."
The company has plans to open 10 to 12 new plants in China to manufacture soft drinks, non-carbonated beverages and snacks. The company also will install additional production lines at existing facilities. The investment will be used to improve research and development operations, expand agricultural development and brand-building initiatives. There are also plans to broaden the portfolio of Chinese-designed and developed products.
1Major financial challenges seen at CSM Bakery
2Snyder's-Lance to sell Diamond of California
3General Mills announces new global organizational structure
4Creativity clicking in cereal category
5Labeling 'healthy' snacks
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3Nestle announces 'groundbreaking' discovery in sugar reduction
4Flowers settles Jamestown distributor lawsuit
5Former Cargill accounting manager admits to fraud
1Nature's Bakery to sponsor Danica Patrick during 2016 NASCAR season
2President-elect Trump nixes T.P.P.
3E.P.A. announces more robust R.F.S. for 2017
4Subway menu to feature multigrain flatbread
5Nestle announces 'groundbreaking' discovery in sugar reduction
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Historic jet arrives after long haul
A retired F-111 fighter bomber has arrived at South Australia's Aviation Museum in Port Adelaide after a three-day road trip from Queensland.
The jet is one of six decommissioned F-111s that will go on public display around Australia after the Federal Government announced plans to loan out the aircraft last year.
Nine RAAF engineers have been flown to Adelaide to reassemble the jet which is expected to take several days.
The F-111 was mainly used for reconnaissance missions before it was replaced by the F/A-18F Super Hornet and retired in 2010.
With its swing-wing design, the jet was one of the nation's most recognisable military aircraft.
Once on display, stairs will be assembled to enable visitors to sit in the cockpit.
The jet has a controversial history.
Upon entering service in 1973, major problems were identified with the aircraft's fuel tanks.
A health study revealed significantly higher rates of cancer among ground crews involved in replacing fuel tank sealant on the aircraft.
A compensation scheme was set up in 2005 and extended in 2009 after a parliamentary inquiry.
Topics: air-force, defence-forces, history, sa, port-adelaide-5015, adelaide-5000
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French cosmetics giant L'Oreal's $843 million bid to acquire Magic Holdings International was approved by China's commerce ministry. L'Oreal expects to complete the acquisition in the second quarter of 2014.
Last week, L'Oreal announced it will no longer sell the Garnier brand in China, citing slower sales. Industry analysts believed the downfall of Garnier was due to weak positioning.
The Magic acquisition gives L'Oreal an instant top-selling facial mask brand in China. With Magic's 288 distributors in 32 provinces and regions in China, the acquisition will also give L'Oreal a greater distribution reach for its own brands in China.
Beauty and personal-care product sales was projected to grow by 8 percent to $34 billion in 2013, according to Euromonitor. This sector accounts for more than 25 percent of luxury sales in China and has great potential.
"China is still a 1.3 billion population market and personal care is growing," Norman Chan of Calibre Asset Management Ltd told Bloomberg. "The faster growing markets are the low- to mid-end, which the domestic companies would have a better foothold in than L'Oreal," said Chan.
Facial masks are one of the fastest-growing areas in China's beauty market, with "very promising development prospects," L'Oreal said.
Magic, which sells the MG-branded beauty products such as facial masks with snail essence, has 26.4 percent share of the facial mask market in China in 2012 according to AC Nielsen data.
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The Guide to 'The Hitchhiker's Guide to the Galaxy'
The Hitchhiker's Guide to the Galaxy
Learn all about Vogons, Deep Thought, and Pan Galactic Gargle Blasters in the guide to 'The Hitchhiker's Guide to the Galaxy.'
Arthur Dent's house is about to be bulldozed, he discovers that his best friend is an alien, and to top things off, Planet Earth is about to be demolished to make way for a hyperspace bypass. Arthur's only chance for survival: hitch a ride on a passing spacecraft. Arthur sets out on a journey in which he finds that nothing is as it seems. He discovers that a towel is just about the most useful thing in the universe, finds the meaning of life, and learns that everything he needs to know in the Hitchhiker's Guide to the Galaxy.
Coming to theaters on April 29th starring Warwick Davis, Alan Rickman, and Mos Def.
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openSUSE Tumbleweed Users Get Git 2.11, Xfce 4.12.3, FFmpeg 3.2.1 & Mesa 13.0.2
openSUSE's Douglas DeMaio reports on the latest Open Source and GNU/Linux technologies that landed in the repositories of the openSUSE Tumbleweed rolling operating system.
What Is A VPN Connection? Why To Use VPN?
We all have heard about VPN sometime. Most of us normal users of internet use it. To bypass the region based restrictions of services like Netflix or Youtube ( Yes, youtube has geo- restrictions too). In fact, VPN is actually mostly used for this purpose only.
The Libreboot C201 from Minifree is really really really ridiculously open source
Open source laptops – ones not running any commercial software whatsoever – have been the holy grail for free software fans for years. Now, with the introduction of libreboot, a truly open source boot firmware, the dream is close to fruition. The $730 laptop is a bog standard piece of hardware but it contains only open source software. The OS, Debian, is completely open source and to avoid closed software the company has added an Atheros Wi-Fi dongle with open source drivers rather than use the built-in Wi-Fi chip.


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817 Second Street, Ocean City, This vacation rental property sleeps 7 with 3 bedrooms and 2 baths. This first floor condo is just a block from the famous Ocean City boardwalk and beaches. It has a shady front porch with ample seating, and a rear → Read More
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November 8, 2007
ANNSELM MORPURGO, M.A., PLAINTIFF,v.THE INCORPORATED VILLAGE OF SAG HARBOR, AND GREGORY N. FERRARIS AS APPOINTED MAYOR, EDWARD DEYERMOND AS RETIRING ELECTED MAYOR, AND J. DOE #1 THROUGH #N OF THE ELECTED BOARD OF TRUSTEES, SAG HARBOR VILLAGE POLICE, AND THOMAS FABIANO AS POLICE CHIEF, POLICE OFFICER PATRICK MILAZZO, AND SAG HARBOR VILLAGE BUILDINGS DEPARTMENT, AND TIMOTHY PLATT AS FIRE MARSHAL/CODE ENFORCER, AND BUILDING INSPECTOR ALBERT DANIELS AS MATERIAL WITNESS, SUFFOLK COUNTY WATER AUTHORITY, AND PAUL GREENWOOD AS ASSISTANT SUPERINTENDENT, CALECA & TOWNER, P.C., ANDREW T. TOWER, ESQ., JOHN JERMAIN MEMORIAL LIBRARY, GREGORY N. FERRARIS AS PRESIDENT OF THE BOARD OF TRUSTEES, AND J. DOE #1 THROUGH #N OF THE APPOINTED OR ELECTED BOARD OF TRUSTEES, JOHN JERMAIN FUTURE FUND, GAIL SLEVIN AND GREGORY N. FERRARIS, CPA, LLC, AS CONTACTS, AND J. DOE #1 THROUGH #N AS SUBSCRIBERS, GREGORY N. FERRARIS, THOMAS FABIANO, PATRICK MILAZZO, TIMOTHY PLATT, PAUL GREENWOOD, CHRISTINE STANLEY A/K/A HELGA MORPURGO, ANDREW T. TOWNER, ESQ., MICHAEL A. WOLOHOJIAN, PETER DARROW, AND OTHER PERSONS J. DOE #1 THROUGH #N AS OTHER CONSPIRING INDIVIDUALS UPON DISCOVERY, DEFENDANTS.
The Court is in receipt of Magistrate Judge A. Kathleen Tomlinson's Report and Recommendation for Plaintiff's order to show cause for a preliminary injunction and temporary restraining order against Defendants, dated October 11, 2007 ("Report and Recommendation"). Presently pending before the Court is Plaintiff's objections, filed with the Court on October 17, 2007, to Magistrate Judge Tomlinson's recommendation that the Court deny Plaintiff's motion for a preliminary injunction and temporary restraining order and abstain from exercising jurisdiction over this action. Defendants had ten days in which to respond to Plaintiff's objections. The time to respond has passed and none of the Defendants filed a response.
The Report and Recommendation sets forth the facts and procedural background of this case in a thorough manner, and therefore, the Court will not recite them. Additional facts, which are important to this Court's determination, are as follows.
On October 12, 2007, the day after the Report and Recommendation was issued, the partition auction was held. The winning bid for the premises at issue here was $1,460,000.00.
(Pl.'s Obj. to R&R ¶ 2.) Based upon representations made by Plaintiff, it is believed that the closing is scheduled for November 12, 2007.
I. Standard of Review
"When evaluating the report and recommendation of a magistrate judge, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous." Walker v. Vaughan, 216 F. Supp. 2d 290, 291 (S.D.N.Y. 2002) (citation omitted). A party may serve and file specific, written objections to a magistrate's report and recommendation within ten days of receiving the recommended disposition. See FED. R. CIV. P. 72(b). Upon receiving any timely objections to the magistrate's recommendation, the district "court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. §636(b)(1)(C); see also Fed. R. Civ. P. 72(b). A party that objects to a report and recommendation must point out the specific portions of the report and recommendation to which they object. See Barratt v. Joie, No. 96-CV-324, 2002 U.S. Dist. LEXIS 3453, at *2 (S.D.N.Y. March 4, 2002) (citations omitted).
When a party raises an objection to a magistrate judge's report, the Court must conduct a de novo review of any contested sections of the report. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). However, "[w]hen a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Barratt, 2002 U.S. Dist. LEXIS 3453, at *2 (citations omitted).
Plaintiff's objections are mainly general in nature and challenge the recommendation made by Magistrate Judge Tomlinson -- to deny the request for a preliminary injunction and temporary restraining order. Although Plaintiff reiterates the arguments she made to Magistrate Judge Tomlinson in support of her request for a preliminary injunction and temporary restraining order and offers additional statements of how she perceives the facts, the Court is able to decipher only three specific objections to the Report and Recommendation. The Court, therefore, reviews the majority of the Report and Recommendation for clear error.
As best the Court can tell, Plaintiff's specific objections to the Report and Recommendation are that (1) it was issued nearly six weeks after the preliminary injunction hearing and on the eve of the partition auction, (2) Magistrate Judge Tomlinson narrowly construed Plaintiff's claims and arguments and (3) the "Factual Background" section of the Report and Recommendation placed undue weight on Defendant Andrew Towner's Affirmation in Opposition in explaining that Plaintiff came to this Court to seek relief she could not obtain in state court. The remainder of Plaintiff's objections simply restate arguments made to and considered by Magistrate Judge Tomlinson or deal with issues not relevant to the underlying request. The specific objections are to be reviewed de novo. Under the de novo standard, the Court must make an independent determination of the specified issues, giving no deference to any previous resolution. See Nomura Sec. Int'l, Inc. v. E*Trade Sec., Inc., 280 F. Supp. 2d 184, 198 (S.D.N.Y. 2003). The Court is not limited to consideration of evidence presented to the magistrate judge, but may review the entirety of the record. See Fed. R. Civ. P. 72(b). Before addressing Plaintiff's specific objections, however, the Court first analyzes whether it should abstain from exercising jurisdiction.
II. Younger Abstention
Before the Court can consider the pending preliminary injunction motion, the Court must first determine whether it should exercise jurisdiction over the underlying action. As noted by Magistrate Judge Tomlinson, Plaintiff's request for emergency relief brings to light the fact that many of the allegations raised by Plaintiff in the instant action are already the subject of litigation in the Supreme Court of the State of New York, County of Suffolk, Index No. 05554-03 (the "State Action"). Based on the following reasons, the Court finds it is required to abstain from exercising jurisdiction over this action.
A. Initial Determination Of Younger's Applicability
Under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 (1971), federal courts generally are required to abstain from "taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings." Diamond "D" Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002). Although abstention is not routinely exercised, it is required when three circumstances are present. See Hindu Temple Soc'y of North America v. Supreme Court of the State of New York, 335 F. Supp. 2d 369, 372 (E.D.N.Y. 2004) ("Abstention from the exercise of jurisdiction is an exception, rather than the rule.".
Younger abstention is mandatory when: (1) there is pending state proceeding, (2) that implicates an important state interest, and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal constitutional claims.
Spargo v. N.Y. State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003); see also Diamond "D" Constr. Corp., 282 F.3d at 198. While Younger abstention originally was "born in the context of state criminal proceedings," Diamond "D" Constr. Corp., 282 F.3d at 198, it has equal application to certain civil proceedings. See Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed. 2d 482 (1975) (finding Younger abstention required in deference to a pending state nuisance action); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11, 107 S.Ct. 1519, 95 L.Ed. 2d 1 (1987) (noting that the doctrine of abstention also applies to certain civil proceedings).
The first Younger requirement - an ongoing state proceeding -- is satisfied. It is undisputed that Plaintiff and Defendant Helga Morpurgo, as well as other persons and entities not party to the federal action, are parties to the State Action, which is more fully described in the Report and Recommendation. An August 7, 2007 interlocutory order in the State Action granted federal Defendant, and state plaintiff, Helga Morpurgo's motion for summary judgment seeking partition. As noted in the Report and Recommendation, "the state court retained jurisdiction over certain aspects of the case, including, inter alia, the rightful distribution of 25% of the net proceeds of the sale of the Property." (R&R at 30.) Furthermore, 'regardless of when . . . [a state court's] judgment becomes final, . . . a necessary concomitant of Younger is that a party . . . must exhaust his state appellate remedies before seeking redress in the District Court, unless he can bring himself within one of the exceptions specified in Younger' . . . .
Kirschner, 225 F.3d at 234 (quoting Huffman, 420 U.S. at 608) (alterations in original). Accordingly, even if the judgment in the State Action were final, the federal Plaintiff is required to exhaust her state judicial remedies prior to bringing an action in federal court.
At the preliminary injunction hearing before Magistrate Judge Tomlinson, Plaintiff testified that she filed notices of appeal with respect to each and every order issued in the State Action. (Preliminary Injunction Hr'g Tr. 10, Aug. 31, 2007.) Because the state court denied her request to proceed in forma pauperis, however, she could not afford to pursue any of those appeals. (Id. at 11.) As a result, the appellate division allowed Plaintiff to withdraw the appeals without prejudice. (Id.) Furthermore, Plaintiff, in her own words, effectively seeks to have this Court sit as an appellate court and review the orders issued in the State Action. (Id. ("Because the pauperis application was accepted by the federal court and I believe that the appeals, all the orders interlocutory appeals can probably be reconstituted here at the appellate division level of the Court as well . . . .").) As the Supreme Court explained, however, "[w]e do not believe that a State's judicial system would be fairly accorded the opportunity to resolve federal issues arising it its courts if a federal district court were permitted to substitute itself for the State's appellate courts." Huffman, 420 U.S. at 609. The Court finds, therefore, that there is an ongoing state proceeding.
The second Younger requirement -- important state interest -- is also satisfied. This Court agrees with Magistrate Judge Tomlinson that the state court has an important interest in adjudicating "the real property rights of common tenants in, inter alia, partition actions." (R&R at 26-27.) Additionally, the state statute pertaining to partitions of real property further establishes an important state interest. (Id. at 27; see also N.Y. Real Prop. Act & Proceedings Law § 901(1).) Moreover, at this point, after spending approximately four years litigating in state court, "the state's interest has broadened to include a strong interest in enforcing its judicial orders and judgments." Hindu Temple Soc'y, 335 F. Supp. 2d at 373; see also Pennzoil, 481 U.S. at 12-13 (recognizing a state interest in "administering certain aspects of [its] judicial system"); Davidson, 956 F. Supp. at 269-70 ("it is beyond debate that New York State has an important interest in the accurate and bias-free functioning of its judicial system").
Finally, the Court finds the last Younger factor -- adequate opportunity to raise claims in state court -- has also been met. It is well-settled that Section 1983 claims may be raised in state-court proceedings. See Maine v. Thiboutout, 448 U.S. 1, 10-11, 100 S.Ct. 2502, 65 L.Ed. 2d 555 (1980) ("§ 1983 actions may be brought in state courts"); Davidson v. Garry, 956 F. Supp. 265, 269 n.3 (E.D.N.Y. 1996). Furthermore, Plaintiff explained to Magistrate Judge Tomlinson that she attempted to bring cross-claims and counter-claims relating to her Section 1983 allegations in the State Action, but they were dismissed on a technicality and there was some mix-up with the filing fees. (PI Hr'g Tr. 14-16.) When Magistrate Judge Tomlinson further questioned Plaintiff about her failure to bring the Section 1983 claims, which are alleged in the federal Complaint, in the State Action, Plaintiff explained that she did not attempt to raise the latest violation of her "civil rights," very simply because it is time to bring it to the federal level, it is a federal question, and obviously I cannot afford to litigate this thing except on a pro se pauperis basis, and I've been denied this in the state court so often before that it is time to have to choose the federal court which is my right to do and therefore I came here. (Id. at 16-17.) Plaintiff cannot simply choose to now raise her claims in federal court because she is dissatisfied with the results in the State Action or mistrustful of the state courts. Principles of comity and underlying Younger specifically dictate against a federal court exercising jurisdiction under these circumstances.
The spirit animating Younger is that the state courts can be trusted to follow the mandates of the federal constitution. See Spargo, 351 F.3d at 75 ("Giving states 'the first opportunity . . . to correct their own mistakes' when there is an ongoing state proceeding serves the vital purpose of 'reaffirming the competence of the state courts,' and acknowledging the dignity of states as co-equal sovereigns in our federal system.") (quoting Diamond "D" Constr., 282 F.3d at 200). Indeed, a challenge to the state court's effectuation of its judgments is precisely what the plaintiff should raise on appeal through the state court --- not in a parallel, contemporaneous attack in federal court.
Hindu Temple Soc'y, 335 F. Supp. 2d at 374 (alteration in original). Additionally, as noted in the Report and Recommendation, "[a] review of the October 15, 2004 and August 7, 2007 Orders in the State Action show that Plaintiff had an opportunity to raise certain issues." (R&R at 29.) Namely, Plaintiff's allegations of constitutional violations. The fact that the state court has denied Plaintiff's request to proceed in forma pauperis, did not preclude her from raising her claims of civil rights violations in the State Action. Accordingly, the Court finds that Plaintiff had an "'opportunity to raise and have timely decided by a competent state tribunal' the constitutional claims at issues in [this] federal suit." Hindu Temple Soc'y, 335 F. Supp. 2d at 374 (quoting Spargo, 351 F.3d at 77) (additional internal quotations and citations omitted).
B. Exceptions To Younger Abstention
Having determined that the Younger doctrine applies, this Court is required to abstain from exercising jurisdiction over this action based on concerns for comity, unless there is a showing of "bad faith, harassment or any other unusual circumstance that would call for equitable relief." Younger, 401 U.S. at 54. The concern for comity and deference to the state dissipates when the state proceeding is brought with "malevolent intent" or "no legitimate purpose." Double "D" Constr. Corp., 282 F.3d at 200. A plaintiff who seeks to avoid Younger abstention based on one of the exceptions bears the burden of showing that the exception applies.
See Kirschner v. Klemons, 225 F.3d 227, 235-36 (2d Cir. 2000).
1. "Bad Faith" Exception
To invoke the "bad faith" exception, "the federal plaintiff must show that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other illegitimate motive." Diamond "D" Constr. Corp., 282 F.3d at 199. Under this exception, it is not enough for the federal plaintiff to show that the state proceedings were conducted in an inappropriate manner; rather, the federal plaintiff must demonstrate that the state proceeding was commenced for an illegitimate purpose. See id. at 200. While Plaintiff makes some conclusory allegations regarding how the State Action has been handled, there is no evidence or suggestion that the State Action was initiated in bad faith, to harass or for any other illegitimate motive.
2. "Extraordinary Circumstances" Exception
The "extraordinary circumstances" exception has been described as an exception in which the circumstances "render the state court incapable of fairly and fully adjudicating the federal issues before it" and create "an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation." Kugler v. Helfant, 421 U.S. 117, 124-25, 95 S.Ct. 1524, 44 L.Ed. 2d 15 (1975). The Second Circuit has further refined this exception into a two-pronged inquiry: "(1) that there be no state remedy available to meaningfully, timely, and adequately remedy the alleged constitutional violation; and (2) that a finding be made that the litigant will suffer 'great and immediate' harm if the federal court does not intervene." Double "D" Constr. Corp., 282 F.3d at 201 (quoting Trainer v. Hernandez, 431 U.S. 434, 441-42 & n.7, 97 S.Ct. 1911, 52 L.Ed. 2d 486 (1977)). Having previously determined that there does exist an available and adequate state remedy to address the alleged constitutional violations, the Court finds that there are no extraordinary circumstances warranting the Court to exercise jurisdiction despite the applicability of Younger.
Consequently, the Court finds that it is required to abstain from taking jurisdiction over this action. Accordingly, the Court ADOPTS Magistrate Judge Tomlinson's finding and analysis set forth in the Report and Recommendation with respect to Younger abstention. As a result, the Court does not reach the merits of Plaintiff's request for a preliminary injunction and temporary restraining order or the remainder of the Report and Recommendation.
Magistrate Judge Tomlinson, in her thorough and well-reasoned opinion, recommended that the Court deny, in its entirety, Plaintiff's motion for a preliminary injunction and temporary restraining order and that the Court abstain from exercising its jurisdiction pursuant to Younger. Having conducted a de novo review of the Younger abstention doctrine, the Court agrees with Judge Tomlinson's conclusion, and finds that this Court is required to abstain from exercising jurisdiction over this action. For the reasons set forth above, the Court hereby ADOPTS that portion of the Report and Recommendation concerning Younger abstention. As a result, the Court does not reach the merits of Plaintiff's request for a preliminary injunction or the remainder of the Report and Recommendation. The Clerk of the Court is directed to mark this matter CLOSED and to terminate all pending motions.
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December 27, 1962
TRANS-UNITED INDUSTRIES, INC., Plaintiff,
RENARD LINOLEUM AND RUG COMPANY, Defendant
Before us, inter alia, is defendant's motion for transfer of this action to the United States District Court for the Eastern Division of the Eastern District of Missouri, under 28 U.S.C. § 1404(a):
'For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.'
After careful review and consideration of the supporting and opposing affidavits and the arguments of counsel, we are persuaded that a balancing of conveniences and a due regard for the interest of justice require the grant of defendant's motion.
Plaintiff is a Pennsylvania corporation, and has its principal place of business in Philadelphia. Defendant is a Missouri corporation, with its principal place of business in St. Louis. The action is to recover $ 174,375.76 alleged to be due for goods sold and delivered by plaintiff to defendant within two years preceding the filing of the complaint. It appears that during that two-year period, defendant purchased from plaintiff goods the purchase price of which ran to 'several million dollars'. The trial of this case will require defendant's production of numerous documents which are located in defendant's principal offices in St. Louis, or in its branch offices which radiate out of St. Louis. More importantly, defendant will be required to produce key executives and personnel from its main and branch offices. Trial in Philadelphia would necessarily result in prolonged absences of these witnesses from their regular duties, with consequent disruption to defendant's business. On the other hand, trial in St. Louis would not inflict the same degree of hardship on plaintiff. See, United States v. General Motors Corporation, 183 F.Supp. 858 (S.D.N.Y.1960); Belman v. Bethlehem Steel Company, 186 F.Supp. 246 (E.D.Pa.1960).
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Students create print advertisements that persuade viewers to visit African-American history museums by detailing their artistic, cultural, and historical benefits.
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African Americans in World War II: Staging a Double V Campaign in the Classroom
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Art to Zoo: Life in the Promised Land: African-American Migrants in Northern Cities, 1916-1940
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Civil Rights Biography: Dr. Martin Luther King, Jr.
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African Americans in Revolutionary Times
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Martin Luther King, Jr. and Nonviolent Resistance
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Dance of the Times: African-American Expression of Jazz
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The First African American Regiment
Young historians examine a memorial sculpture of the first African American regiment in the Civil War, and then compare how the experiences of the regiment are portrayed in letters and poetry, as well as in the motion picture, Glory.
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What Members Say
- Kathryn M., Teacher
- Genoa, OH


text:
I am not an expert on genetics, but it makes sense that non-Africans who survived the killing of Albinos had an evolutionary adaption in their very DNA to be distrustful of Africans.
If the "out of Africa" theory is true, then this makes complete sense.
I don't personally agree with this "out of africa" theory, but it is definitely true that Jewish Talmudic Racial Supremacists want to wipe from the face of the universe White Europeans.
Anyway, here is a video of the plight of African Albinos.
By the way, I do not care if Europeans evolved from Africans, current research is showing that Europeans did NOT evolve from Africans, I'm just presenting a theory as to why the White European race is at guard when it comes to Africans or Indians, or Chinese :) No, you didn't escape.
I also note that Albino Africans look nothing like Europeans, but that is the topic of another discussion.:)


text:
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decided: May 15, 1980.
BERTHA RIDDICK, INDIVIDUALLY AND ON BEHALF OF LULU RIDDICK, AN INFANT, AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,v.JOSEPH D'ELIA, COMMISSIONER OF THE NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, AND BARBARA BLUM, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, DEFENDANTS, BARBARA BLUM, DEFENDANT-APPELLANT
Appeal from a judgment of the United States District Court for the Eastern District of New York, Sifton, J., (1) permanently enjoining the defendants from requiring OASDI benefits paid to Eugene Riddick on behalf of his daughter, Constance Riddick, an OASDI beneficiary, to be considered as available income to reduce the AFDC benefit payable to Bertha Riddick on behalf of Constance's infant child Lulu, and (2) reimbursing the plaintiff, Bertha Riddick, for all reductions made from her AFDC grant for Lulu as a result of the inclusion of a portion of the OASDI benefits paid to Constance. Affirmed .
Before Lumbard and Mansfield, Circuit Judges, and Bartels, District Judge.*fn*
Appellee Bertha Riddick brought this action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief from the New York State practice of attributing a portion of a mother's federal Old Age, Survivors' and Disability Insurance ("OASDI") benefits as income to her minor daughter for the purpose of reducing the child's need for Aid to Families with Dependent Children ("AFDC") benefits. Riddick alleged that the state policy violated due process and conflicted with federal law governing OASDI. Jurisdiction was predicated upon 28 U.S.C. § 1343(3) and (4).
Both Joseph D'Elia, as Commissioner of the Nassau County Department of Social Services, and Barbara Blum, in her capacity as Commissioner of the New York State Department of Social Services, were named defendants in the action below. The District Court granted appellee's motion for summary judgment, permanently enjoining the state's practice, and Barbara Blum has appealed.
The appeal presents two questions: (1) whether appellee's constitutional claim is sufficiently substantial to support the exercise of federal jurisdiction under 28 U.S.C. § 1343(3); and, if so, (2) whether the state's treatment of a portion of the OASDI benefits paid to a mother's representative payee as available income for purposes of calculating her minor child's entitlement to AFDC benefits, conflicts with the Social Security Act, 42 U.S.C. §§ 401 et seq. and regulations promulgated thereunder.
AFDC is a federal-state benefit program designed to provide financial assistance to needy dependent children and their parents or relatives who live with or care for them. 42 U.S.C. §§ 601 et seq.; 45 CFR §§ 233.10 et seq. Under federal law, each state participating in the AFDC program "shall, in determining need, take into consideration any other income . . . of any child or relative claiming aid to families with dependent children." 42 U.S.C. § 602(a)(7). An applicant's eligibility and the amount of assistance granted are based on a comparison of a public assistance standard of need, 18 NYCRR §§ 352.1 et seq., with the income and resources "actually available (to the applicant) for current use on a regular basis." 45 CFR § 233.90(a)(1).
The facts are not in dispute. Bertha Riddick and her husband, Eugene, reside in Hempstead, New York with their 37 year-old, mentally-disabled daughter, Constance, and with Constance's 7 year-old daughter, Lulu. Bertha has received a monthly AFDC grant on Lulu's behalf since June 1, 1977. Constance is entitled to federal OASDI payments because of her disabling mental illness, but her father, Eugene, is the representative payee for the OASDI payments pursuant to 20 CFR §§ 404.1601 et seq. These regulations require Eugene to expend Constance's payments "for the purposes determined by him to be in (her) best interest." 20 CFR § 404.1603. A willful conversion of such monies to a use other than "for the use and benefit" of Constance would expose Eugene to criminal liability under 42 U.S.C. § 408(e). He is authorized, however, to apply some of the OASDI benefits to the support of Constance's legally dependent child if Constance's "maintenance needs . . . are being reasonably met." 20 CFR § 404.1607.
Until April 1978, the monthly AFDC grant for Lulu was in the amount of $212.30, but in that month Bertha received notice from defendant D'Elia that, effective April 24, 1978, the payment would be reduced to $143.90. The appellant recomputed Lulu's grant because the Department of Social Services had discovered that Constance was the beneficiary of a monthly OASDI payment of $189.10.*fn1 According to the state public assistance standard of need set out in 18 NYCRR §§ 352.1 et seq.,*fn2 Constance only required $166.50 for herself, so the balance, $22.60, was deemed available to Lulu, whose AFDC grant was reduced accordingly.*fn3
On April 19, 1978, Bertha requested a fair hearing to review the AFDC reduction. At the hearing, on May 23, 1978, Bertha's and Eugene's uncontradicted testimony indicated that all of the OASDI money for Constance was being used for Constance's needs, and there was no surplus available for Lulu. While Constance spent something over a dollar a day on personal expenses, mostly cigarettes, Bertha testified that she dipped into her own funds to help buy Constance's clothes. Defendant offered no evidence that Constance did not need for herself all of her OASDI grant, but instead took the position, as the hearing officer summarized it, of "relying on the public assistance budget, and they (the Department of Social Services) don't go into actual needs." The determination to reduce Lulu's AFDC grant was affirmed by Barbara Blum, Commissioner of New York State Department of Social Services, on June 27, 1978 and the reduction took effect on July 1, 1978, This action was commenced on July 31.*fn4
The District Court held it had jurisdiction under 28 U.S.C. § 1343(3) because the appellee's claim raised a question under the Due Process Clause of the Fourteenth Amendment, and then proceeded to adjudicate the pendent statutory claim in favor of appellee, on the ground that the state practice was invalid under the Supremacy Clause, thus avoiding the constitutional issue on the merits.
It is axiomatic that under 28 U.S.C. § 1343(3), federal jurisdiction in this case must be based upon a noninsubstantial claim of deprivation of a "right . . . secured by the Constitution of the United States." It is equally undisputed that such a claim may not be predicated upon a mere conflict between state and federal statutes. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979). As the District Court analyzed the state practice, Lulu's AFDC payments were being reduced as a result of an irrebuttable presumption that Eugene would use no more of the OASDI funds he received for Constance than necessary to meet New York's public assistance standard of need as set forth in 18 NYCRR §§ 352.1 et seq., and that he would make the surplus above such standard available to Lulu.
With this background in mind we must first decide whether the application of this presumption in appellee's case raises a constitutional question sufficiently substantial to support federal jurisdiction under 28 U.S.C. § 1343(3). Our answer depends upon the criteria set out in Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974), where the Supreme Court said:
" "Constitutional insubstantiality' for this purpose has been equated with such concepts as "essentially fictitious,' (cit. omit.); "obviously frivolous,' (cit. omit.); and "obviously without merit,' (cit. omit.). The limiting words "wholly' and "obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; . . . only if " "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." " " (cit. omit.).
Id. at 537-38, 94 S. Ct. at 1379.
Viewing such prior decisions, in a number of cases the Supreme Court has struck down on constitutional grounds legislation embodying conclusive presumptions not justified by the facts or by general experience. United States Department of Agriculture v. Murry, 413 U.S. 508, 93 S. Ct. 2832, 37 L. Ed. 2d 767 (1973) (conclusive presumption that certain food stamp applicants are not needy); Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973) (conclusive presumption of non-residency of university students who applied from out-of-state); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1971) (conclusive presumption that unwed father is unfit for custody of child); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974) (conclusive presumption that school teacher is unfit to teach after fourth month of pregnancy). The Seventh Circuit found that substantial constitutional allegations were made in plaintiffs' attack on Indiana medicaid regulations which conclusively presumed the income of one spouse to be available to the other. Brown v. Stanton, 617 F.2d 1224, 1226 n.1 (7th Cir. 1980). In Gagne v. Maher, 594 F.2d 336, 341 (2d Cir. 1979), 448 U.S. 122, 100 S. Ct. 2570, 65 L. Ed. 2d 653, this court recently held that a due process claim alleging that certain aspects of Connecticut's AFDC program embodied impermissible irrebuttable presumptions did raise a substantial constitutional question within the meaning of Hagans v. Lavine, supra. See also Caldwell v. Blum, 621 F.2d 491 at 494 (2d Cir. 1980).*fn5
On the other hand, as Judge Mansfield points out in his dissent, the Supreme Court has upheld against constitutional attack welfare classifications, standards of need and presumptions, provided they have a rational basis, Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970); Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1975); Califano v. Jobst, 434 U.S. 47, 98 S. Ct. 95, 54 L. Ed. 2d 228 (1977); Califano v. Aznavorian, 439 U.S. 170, 99 S. Ct. 471, 58 L. Ed. 2d 435 (1978), recognizing that there is no constitutional entitlement to any particular level of welfare benefits. Lavine v. Milne, 424 U.S. 577, 96 S. Ct. 1010, 47 L. Ed. 2d 249 (1976), and that individualized hearings are not always feasible, Califano v. Jobst, supra; Mathews v. Lucas, 427 U.S. 495, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976); Weinberger v. Salfi, supra.
From the above authorities, it would not be surprising if the appellee's constitutional argument failed on the merits. But we cannot look at the fate of a claim on the merits to decide the threshold question of jurisdiction. Hagans teaches that a constitutional claim cannot be deemed too insubstantial to support federal jurisdiction unless it is virtually certain from prior Supreme Court cases arising out of a substantially similar context that the claim has no hope of success. We applied the Hagans test in Holley v. Lavine, 529 F.2d 1294 (2d Cir. 1976), reversing the dismissal of a complaint alleging that provisions of New York State's AFDC program discriminated against illegal aliens in violation of the Equal Protection Clause. There we said:
The Supreme Court has apparently never dealt with the equal protection rights of illegal aliens in this context . . . We do not characterize plaintiff's constitutional arguments as persuasive; we hold merely that the district judge could not dismiss them out of hand.
Id. at 1295-96.
Judge Mansfield argues that the constitutional claim is insubstantial because it is patently rational for the legislature to balance household income against presumed expenses to determine whether a child of that household is eligible for aid. He suggests that it is no problem for a state to presume that the income of a natural parent, whether or not he actually supports the children, will be deemed to be available to the children, citing King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968) and Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970). To these principles we agree without, however, agreeing to Judge Mansfield's conclusion. King and Lewis do imply that the mother's income may be deemed available to her child because the parent is under a duty to support the child. But it does not follow that Eugene, the representative payee for the parent Constance, who must apply the OASDI payments for Constance's needs, is under any legal duty to support Constance's child Lulu. The use of Constance's income by the representative payee for her "best interest," 20 CFR § 404.1603, does not require this conclusion. Neither of the above authorities apply an irrebuttable presumption fixing the needs of an OASDI beneficiary at public assistance levels. Because of the legally enforceable fiduciary obligation of the representative payee, the presumption of available income for Lulu is not so patently rational and constitutional as to require dismissal at the threshold. Consequently, these authorities do not foreclose appellee's constitutional challenge.
We, therefore, turn to the pendent statutory claim challenging the state practice as contrary to federal law and regulations governing OASDI. Appellant contends that the state policy is mandated by federal law and regulations requiring it to consider the income of a mother living with her minor child as available to the minor child for the purpose of computing entitlement to and level of AFDC benefits. 42 U.S.C. § 602(a)(7); 45 CFR § 233.20(a)(3)(vi).*fn6 In support of her claim she points out that the federal statute directing states to consider applicants' income in setting the level of AFDC benefits explicitly excludes Supplementary Security Income ("SSI") but not OASDI benefits from such consideration. 42 U.S.C. § 602(a)(24).
In its opinion, the District Court relied principally on 20 CFR § 404.1603, which provides that the representative payee shall "apply the payments certified by him on behalf of a beneficiary only for the use and benefit of such beneficiary in the manner and for the purposes determined by him to be in the beneficiary's best interest." (Emphasis supplied.) As earlier indicated, the failure to use the payments for this purpose can expose the representative payee to criminal liability for conversion. 42 U.S.C. § 408(e). The allocation by the Department of Social Services of a portion of Constance's OASDI benefits to Lulu effectuated an irrebuttable presumption that Eugene would expend that portion for Lulu in spite of the fact that Eugene was obligated to use all of such income for Constance if her "best interest" so required.
In a similar context this court upheld the representative payee's broad discretion to expend OASDI benefits in the beneficiary's interest in the face of a Connecticut policy of imputing such benefits to other family members for purposes of calculating their entitlement to AFDC. Johnson v. Harder, 512 F.2d 1188 (2d Cir.), cert. denied, 423 U.S. 876, 96 S. Ct. 149, 46 L. Ed. 2d 109 (1975). Appellant's argument that federal law explicitly provides for disregard of SSI but not of OASDI income in setting the level of AFDC grants carries little weight, in view of 20 CFR § 404.1607, which authorizes, but does not require the representative payee to use part of the OASDI benefits for the support of a legally dependent child "(i)f current maintenance needs of a beneficiary are being reasonably met." In view of such a conflict with federal law, the state policy must give way under the Supremacy Clause.
LUMBARD, Circuit Judge (concurring):
I concur in affirming the judgment of the district court.
First, the district court had jurisdiction. Appellee's constitutional claim was "substantial" under Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974), because previous decisions do not foreclose the claim that the New York practice complained of is not rationally related to a legitimate state interest, and because that policy, whose effect is to take from Lulu Riddick an amount that, in fact, she may not receive from Eugene Riddick, is not "so patently rational as to require no meaningful consideration." Id. at 541, 94 S. Ct. at 1381. Thus, the claim was of sufficient substance to justify the district court in taking jurisdiction, even though a further and fuller consideration would probably reveal that the claim has no merit, as the state statute does have a rational relation to a reasonable and economic operation of the state's welfare system.
Second, the district court was therefore required to determine the claim that the state practice conflicted with the federal statute and its regulations. I agree with Judge Bartels that the district court was correct in holding that a conflict existed and that the state must be enjoined from reducing the allowance for Constance Riddick.
MANSFIELD, Circuit Judge (dissenting):
I respectfully dissent for the reason that the constitutional claim asserted by plaintiffs is so patently insubstantial as to deprive federal courts of subject matter jurisdiction. See Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974).
We have pendent jurisdiction over plaintiffs' statutory claim only if plaintiffs' constitutional claim raises substantial questions under 28 U.S.C. § 1343(3). Under Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974), a constitutional claim is insufficiently substantial to confer federal court jurisdiction if the result is "immediately obvious from the decided cases" or if the challenged law is so "patently rational as to require no meaningful consideration." Id. at 538-41, 94 S. Ct. at 1380-81. In my view, it is "patently rational" to presume, as did the State here, that a portion of the income of a parent will be available for the use and benefit of that parent's minor child.
As the majority indicates, AFDC is a federal-state cooperative program designed to provide financial assistance to needy dependent children and their parents or relatives who live with or care for them. A state participating in the AFDC program will typically determine a public assistance standard of need, which is the level of income the state believes is necessary to maintain a hypothetical family unit, and pay to each recipient an amount equal to that standard of need less the amount of other income and resources available to him or her. Rosado v. Wyman, 397 U.S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970). Indeed, federal law requires that each state shall, "in determining need (of an eligible child), take into consideration any other income and resources of (the) child or relative claiming aid . . . ." 42 U.S.C. § 602(a)(7). Accordingly, the State of New York calculated the state standard of need for both mother and daughter, Constance and Lulu, and "deemed" the difference between the mother's needs and income to be available to Lulu for the purpose of determining Lulu's level of AFDC benefits. The only distinguishing feature between this case and the typical AFDC case is that the mother receives her income, OASDI benefits, indirectly through her father Eugene, a representative payee.
Judge Sifton below found that the State had conclusively presumed (1) that Eugene, the representative payee for Constance's income, will not use more of Constance's income for her benefit than that necessary to meet the standard of need set by the State, and (2) that any surplus income over and above that standard of need will be used to meet Lulu's needs. Relying on such cases as Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973) (barring presumption of nonresidency of out-of-state applicants for admission to university); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1971) (upsetting conclusive presumption that unwed father is unfit to have custody of child); and Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971) (holding that automatic suspension of license of driver involved in accident denied due process), Judge Sifton concluded that these two "irrebuttable presumptions" raised sufficiently serious questions to support federal court jurisdiction under § 1343(3).
I disagree. As we recently noted in Clayborne v. Califano, 603 F.2d 372, 380 (2d Cir. 1979), the Supreme Court, in a line of cases beginning with Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1974), has all but ruled the irrebuttable presumption analysis inapplicable to social welfare cases.*fn1 In Weinberger v. Salfi the Court stated "There is thus no basis for our requiring individualized determinations when Congress can rationally conclude not only that generalized rules are appropriate to its purposes and concerns, but also that the difficulties of individual determinations outweigh the marginal increments in the precise effectuation of congressional concern which they might be expected to produce." Id. at 785, 95 S. Ct. at 2476. Given that the Supreme Court has repeatedly recognized that the constitutionality of a social welfare classification depends not on whether it constitutes an irrebuttable presumption but whether it has a "rational basis," e. g., Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L. Ed. 2d 491 (1970), the district court erred when it simply assumed that the mere use of a conclusive presumption raises substantial constitutional questions.
The presumption challenged here, that of "deeming" income of a parent to be available to a child, is clearly rationally related to a legitimate state interest. I begin with the firmly established proposition that because there is no constitutional obligation to provide minimum levels of support, Lavine v. Milne, 424 U.S. 577, 584 n. 9, 96 S. Ct. 1010, 1015, 47 L. Ed. 2d 249 (1976), the states and the federal government are free to determine levels of need for welfare applicants, regardless of actual need, and may even award a level of benefits amounting to less than the state presumed standard of need. Jefferson v. Hackney, 406 U.S. 535, 92 S. Ct. 1724, 32 L. Ed. 2d 285 (1972); King v. Smith, 392 U.S. 309, 318, 88 S. Ct. 2128, 2133, 20 L. Ed. 2d 1118 (1968); Dandridge v. Williams, supra; Rosado v. Wyman, supra. A legislature may, in short, conclusively presume that an applicant has needs of a certain amount without granting to the applicant an individual hearing as to those actual needs.
That is all that the State has done here. The State is legitimately concerned about the possibility of parents shielding income from their children in order to render them eligible for AFDC aid. It also desires to use limited welfare funds to assist those truly in need. Therefore it has simply balanced household income against a presumed standard of need to determine the child's eligibility and need for AFDC aid. Nothing could be more rational. Not only is it reasonable for a State to presume that parents, who are legally obligated to support their minor children, will in fact use their income to support their children, but it would be highly inefficient, prohibitively expensive, and unduly burdensome for the State to be required to determine individually on a case-by-case basis whether parents actually made their income available to their children. Quite simply, the procedure of presuming needs and "deeming" income to be available is necessary to the efficient operation of, and is relied upon by, all social welfare programs, including Supplemental Security Income (SSI) and Medicaid, see 42 U.S.C. §§ 1382(a)(2), (b)(2), 1382c(f)(1). To contend, as the majority does here, that it raises substantial constitutional questions is a proposition that has been thoroughly rejected by the Supreme Court.
Indeed, the Supreme Court, in a long line of cases, has implicitly upheld the constitutionality of "deeming." In King v. Smith, 392 U.S. 309, 329, 88 S. Ct. 2128, 2139, 20 L. Ed. 2d 1118 (1968), the Court made clear that a state may under § 602(a)(7) deem the income of a natural father to be available to his child, regardless of whether or not he actually supports the child. And in Lewis v. Martin, 397 U.S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970), the Court upheld the propriety of deeming the income of a man married to the child's natural mother to be available to the child, stating:
"We only add that HEW might reasonably conclude that only he who is near as a real or adoptive father would be has that consensual relation to the family which makes it reliably certain that his income is actually available for support of the children in the household. HEW may, in other words, reasonably conclude that an obligation to support under state law must be of "general applicability' to make that obligation in reality a solid assumption on which estimates of funds actually available to children on a regular basis may be calculated." (At 558-59, 90 S. Ct. at 1285).
Judge Bartels, though not disputing the principles announced in King and Lewis, apparently contends that the mother's receipt of her income indirectly through a representative payee in this case presents more serious constitutional questions than those raised in King and Lewis. But that fact, whatever its significance for the statutory issue presented in this case, has no constitutional significance. The duty of the representative payee to use Constance's income in her "best interests," 20 C.F.R. § 404.1603, neither relieves Constance of her statutory duty to support her child, N.Y. Social Services Law § 101, nor makes any less rational the State's presumption that Constance's income will in fact be used to support her daughter.
In upholding the constitutionality of various legislative presumptions, many of which are far more susceptible to a constitutional challenge than the presumption challenged here, the Supreme Court has repeatedly emphasized not only the power of a legislature to act on the basis of reasonable general factual inferences but also the necessity of avoiding individual case-by-case determinations. See Califano v. Aznavorian, 439 U.S. 170, 99 S. Ct. 471, 58 L. Ed. 2d 435 (1978) (upholding denial of benefits based on a residency presumption); Califano v. Jobst, 434 U.S. 47, 53, 98 S. Ct. 95, 99, 54 L. Ed. 2d 228 (1978) (upholding the presumption that a dependent child's need terminates upon marriage);*fn2 Mathews v. Lucas, 427 U.S. 495, 509, 96 S. Ct. 2755, 2764, 49 L. Ed. 2d 651 (1976) (upholding the presumption that legitimate children, and some illegitimate children, were dependent on a deceased wage earner);*fn3 Weinberger v. Salfi, 422 U.S. 749, 95 S. Ct. 2457, 45 L. Ed. 2d 522 (1974) (upholding the denial of benefits to the widow and survivors who had a relationship of less than nine months prior to the wage earner's death). See also Norman v. St. Clair, 610 F.2d 1228, 1242-43 (5th Cir. 1980) (upholding the constitutionality of deeming income from one spouse to be available to another for the purpose of determining Medicaid eligibility); Kollett v. Harris, 619 F.2d 134 (1st Cir. 1980) (upholding the constitutionality of deeming income of a stepparent to be available to his stepchild for the purposes of determining the child's SSI benefits even though the stepparent was not legally obligated to support the stepchild).*fn4
Plaintiffs' claim is foreclosed by these prior Supreme Court decisions. There comes a point where a constitutional claim has so little hope of success that it must be considered too insubstantial to establish federal court jurisdiction. This is such a case.
Finally, it should be noted that requiring plaintiffs to litigate their statutory claim in state court is not an empty promise. The New York courts have been a sympathetic forum for claims of this sort. Snowberger v. Toia, 60 A.D.2d 783, 400 N.Y.S.2d 648, aff'd, 46 N.Y.2d 803, 413 N.Y.S.2d 922, 386 N.E.2d 833 (1978).
Accordingly, I would dismiss the case for lack of subject matter jurisdiction.
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