ALEX SMITH

Alex Smith

Alex Smith graduated from Middletown High School in 1969.  He received a BA in political science from Ohio University in 1973.  He received a JD from Albany Law School in 1977, after spending two years of writing for the Albany Law Review; two of his articles were published.

Alex was licensed to practice law in New York in 1978.  He has since become a member of the bars of the United States Supreme Court, the United States Second Circuit Court of Appeals, and the United States District Courts for the Southern and Northern Districts of New York.

For the past 30 years, Alex has engaged in trial and appellate practice in the Federal and State courts, concentrating in the  fields of civil rights, criminal, municipal and land use law.  Alex is currently the part-time Assistant Corporation Counsel for the City of Middletown; he has been the Assistant or Corporation Counsel for Middletown since 1993.  From 1996 to 2000, he was the part-time Attorney for the Town of Greenville.

MAJOR CASE LIST

Civil Rights Cases – Plaintiff

  • Graziano v Pataki, 689 F.3d 110 (2nd Cir. 2012) (U.S. Second Circuit, over a dissent, holds that an alleged New York blanket policy denying parole to a class of A-1 violent felons with life sentences does not constitute egregious official misconduct sufficient to invoke the protection of substantive due process)
  • Donhauser v Goord, 181 Fed.Appx. 11 (2nd Cir. 2006) (U.S. Second Circuit remands for trial prisoner’s challenge that denial of good time credits for refusal to provide sexual history required for participation in sexual offender treatment program violated his Fifth Amendment right against self-incrimination; settled before trial)
  • Cohn v New Paltz School District, 363 F.Supp.2d 421 (NDNY 2005), affd 204 Fed.Appx 56 (2nd Cir. 2006) (U.S. Second Circuit affirmed Northern District ruling that a New York school district is not an arm of the State for Eleventh Amendment immunity purposes)
  • Theodore v Delaware Valley School District, 836 A.2d 76 (Pa. 2003) (Pennsylvania Supreme Court holds that random, suspicion-less drug testing of high school students without a showing of special need violates Pennsylvania Constitution, rejecting the reasoning of the recent U.S. Supreme Court ruling that special need showing not required by the Fourth Amendment)
  • Lazarus v County of Sullivan, 269 F.Supp.2d 419 (SDNY 2003) (employee as prevailing party in ADA action against county and its agency was entitled to award of attorney fees, even though employee did not obtain in consent decree the precise relief that she sought in the complaint)
  • Younes v Cornwall School District, 01 Civ. 3971 (CLB) (SDNY 2002) (federal district court ruling that Cornwall school district’s zero tolerance policy on threatening speech violated First Amendment; case then settled)
  • Willis v Artuz, 301 F.3d 65 (2nd Cir. 2002) (U.S. Second Circuit holds that warrantless search of prisoner’s cell, conducted by police investigating an uncharged crime, did not violate Fourth Amendment)
  • Polera v Newburgh School District, 288 F.3d 478 (2nd Cir. 2002) (U.S. Second Circuit holds that visually impaired student’s claim for damages did not render inapplicable the IDEA administrative exhaustion requirement)
  • DeStefano v Miller, 247 F.3d 397 (2nd Cir. 2001) (U.S. Second Circuit holds that Establishment Clause violated if non-profit agency funded by New York State engages in Alcoholics Anonymous Twelve Step indoctrination)
  • Warner v Orange County Department of Probation, 173 F.3d 120 (2nd Cir. 1999) (U.S. Second Circuit holding that an Orange County policy requiring a probationer to work the Twelve Steps of Alcoholics Anonymous violates the Establishment Clause of the First Amendment)
  • Schlagler v Phillips, 166 F.3d 439 (2nd Cir. 1999) (U.S. Second Circuit reversed District Court holding that New York’s harassment statute was unconstitutional in holding that federal court should abstain in First Amendment challenge unless state prosecution was shown to be based upon bad faith animus)
  • Myers v County of Orange, 157 F.3d 66 (2nd Cir. 1998) (U.S. Second Circuit upheld jury verdict of $575,000 against Orange County and Port Jervis for enforcing a no-cross-complaint policy)
  • Kercado v Mills, 98 CV 570 (LEK) (1998 settlement in Northern District federal district court requiring New York State to certify pole vaulting as official girl’s high school athletic event)
  • Griffin v Coughlin, 88 NY2d 674 (1996)  (New York Court of Appeals holding that New York State policy of requiring prisoners to work the Twelve Steps of Alcoholics Anonymous violates the Establishment Clause)
  • Doe v Phillips, 81 F.3d 1204 (2nd Cir. 1996) (U.S. Second Circuit holding that Orange County prosecutor not entitled to absolute or qualified immunity for requiring criminal defendant to swear to her innocence on a bible in a church as a condition of dropping charges against that defendant)
  • Cullen v Fliegner, 18 F.3d 96 (2nd Cir. 1994) (U.S. Second Circuit holding that federal district court properly prohibited New York disciplinary action from proceeding against teacher in Tuxedo School District on First Amendment grounds)

Civil Rights Cases – Defendant

  • Edelhertz Revocable Living Trust v City of Middletown, 714 F.3d 349 (2nd Cir. 2013) (U.S. Second Circuit holds that owners of multiple dwellings do not have a procedural due process right to individual notice of proposed amortization zoning ordinance)
  • Edelhertz v City of Middletown, 12 Civ. 1800 (VB) (SDNY 2013) (U.S. District Court holds that Middletown’s ordinance requiring absentee landlords to designate a property manager residing in or within 10 miles of the City of Middletown does not violate the Privileges and Immunities or the Equal Protection Clause)
  • United States v City of Middletown, 281 F.3d 333 (2nd Cir. 2002) (U.S. Second Circuit holds that trial required in fair housing claims against Middletown, reversing 97 Civ. 8808 (CLB) (U.S. District Court in 2000 summary judgment motion dismissed Justice Dept. action against Middletown for alleged violations of Fair Housing and Americans With Disabilities Acts; settled during trial)
  • Chase v Aube, 01 Civ. 1763 (LMS) (SDNY 2002) (federal judge determined after bench trial that Middletown police officers did not violate civil rights of disabled drug dealer during arrest)
  • Catanzaro v City of Middletown, 188 F.3d 56 (2nd Cir. 1999) (U.S. Second Circuit holding that owner of demolished buildings did not state federal civil rights or fair housing claims that warranted a jury trial against Middletown)
  • Hanson v City of Middletown, 98 Civ. 626 (MDF) (class certification denied in federal district court in 1999 to landlord alleging that Middletown multi-family dwelling enforcement project violated due process rights and Fair Housing Act; complaint withdrawn)
  • Carbone v City of Middletown, 97 Civ. 3372 (MDF) (federal jury determined in 1999 trial that Middletown did not violate civil rights of junkyard owner by enforcement of various municipal ordinances)
  • Venturini v Eldred School District, 96 Civ. 7414 (BDP) (settlement during 1999 federal trial of civil rights and Title IX claims by students against teacher and school district)
  • Cortez v Rogowski, 94 Civ. 4815 (MDF) (federal migrant labor class action, settled after non jury trial in 1997)

Federal Habeas Corpus Cases – Petitioner

  • Henry v Ricks, 578 F.3d 134 (2nd Cir. 2009) (U.S. Second Circuit holding in a case of “first impression” that the Due Process Clause does not require the new interpretation of the depraved indifference murder statute by New York courts to be applied retroactively on federal collateral review)
  • Gibbons v Savage, 555 F.3d 112 (2nd Cir. 2009) (U.S. Second Circuit holding that although trial court violated petitioner’s right to a public trial by closing the courtroom for one afternoon of jury selection, the closure was not substantial enough to reverse the conviction)
  • Jones v Keane, 329 F.3d 290 (2nd Cir. 2003), reversing 02 Civ. 1804 (CLB) (SDNY 2002) (federal district court grants habeas petition on ground that New York state courts have so confused the elements of depraved indifference murder with those of reckless manslaughter that conviction of murder deprived petitioner of due process and equal protection; reversed by Second Circuit on exhaustion principles)
  • Grotto v Herbert, 316 F.3d 198 (2nd Cir. 2003), reversing 203 F.Supp.2d 142 (NDNY 2002) (federal district court grants habeas petition on ground that state trial court violated petitioner’s right to present a defense when it refused to grant a continuance to allow the introduction of exculpatory evidence)
  • Cox v Miller, 296 F.3d 89 (2nd Cir. 2002) (U.S. Second Circuit holding that habeas petitioner did not establish common law privilege warranting suppression of statements made to fellow members of Alcoholics Anonymous), reversing 154 F.Supp.2d 787 (SDNY 2001) (U.S. District Court ruling that statements made to fellow members of Alcoholics Anonymous are protected by New York’s priest/penitent statutory privilege and therefore use of such statements as probable cause to arrest violates the Establishment Clause; Court ordered release of Westchester County petitioner who had allegedly murdered two prominent doctors in his childhood home while in a dissociative state brought on by alcohol and an automobile accident and motivated by parricidal impulses, when the only evidence other than the statements were fingerprints and palmprints obtained during the illegal arrest and matched at the scene)
  • Boria v Keane, 99 F.3d 492 (2nd Cir. 1996) (U.S. Second Circuit holding that state prison sentence reduced to time served where trial lawyer failed to advise criminal client of advisability of accepting proffered plea bargain); Boria v Keane, 90 F.3d 36 (2nd Cir. 1996) (Antiterrorism and Effective Death Penalty Act not retroactive in noncapital case) Boria v Keane was described as the most important criminal law case in the past decade by an article in the Boston College Law Review in July 1998, 39 B.C.L.Rev. 841
  • Winkler v Keane, 7 F.3d 304 (2nd Cir. 1993) (U.S. Second Circuit clarifying impact of contingency fee agreements in criminal cases upon Sixth Amendment right to effective assistance of counsel)
  • Brown v Doe, 2 F.3d 1236, (2nd Cir. 1993) (U.S. Second Circuit affirming state criminal conviction arising out of Brink’s robbery-murder incident in Rockland County in 1981, in which Second Circuit panel noted at 2 F.3d at 1241 that “[a] number of these issues are substantial, and they are presented to us with forceful and skilled advocacy.”)

Personal Injury Cases – Plaintiff

  • Johnson v Verona Oil, 36 AD3d 991 ( 3rd Dept. 2007) (New York Third Department precludes summary judgment in favor of permanently paralyzed teenager against deli on Dram Shop theory after intoxicated boyfriend drove car off road; settled post-appeal)
  • Roberts v Worth Construction, 21 AD3d 1074 (2nd Dept. 2005) (New York Second Department precludes summary judgment in favor of permanently disabled subcontractor against general contractor for workplace violations of Labor Law; settled post-appeal)
  • Doe v Armour Pharmaceutical Company, Inc., 96 Civ. 7524 (BDP) (SDNY 1996) (federal multi-district litigation involving claim that HIV infection by blood transfusion resulted from negligence in 1970’s regarding protection of blood plasma product by fractionating makers and distributors; settled pre-trial in 2000)
  • Ward v Danek, 96 Civ. 7824 (CLB) (SDNY 1996) (federal multi-district claim that defective pedicle screws for implantation in back surgery were manufactured and distributed nationwide; settled pre-trial in 1999)
  • Fields v United States, 96 Civ. 3071 (JSR) (SDNY 1996) (personal injury action against Navy for leg injuries suffered during airshow; settled pretrial)
  • R.B. (Anonymous) v County of Orange, 220 AD2d 401 (2nd Dept. 1995) (7-year litigation involving sexual abuse of infants at county-certified day care center remanded for new trial after reversal of immunity decision by trial court; new trial in June, 1997 results in 2.4 million dollar verdict; settled after verdict)
  • Lovell v United States, 94 Civ. 2840 (CLB) (SDNY 1994) (personal injury action against West Point for knee injury resulting from misconstructed stairways at Tate Arena; settled pretrial)
  • Flynn v Niagara University, 198 AD2d 262 (2nd Dept. 1993) (university held liable for failure to properly control unruly gathering on campus)

Criminal Cases – Defendant

Trial

  • People v Payne, Orange County Indict. #03-850 (caretakers convicted of manslaughter in starvation death of elderly retarded man)
  • People v Roberts, Orange County Indict. #03-797 (mother acquitted of manslaughter in starvation death of baby, convicted of criminally negligent homicide)
  • People v Daniels, Orange County Indict. # 01-783 (trial court denies suppression of body of victim on theory of implied consent to search bedroom)
  • People v Watson, Orange County Indict. #00-409 (murder indictment involving owner of Lake Anne Country Club reduced by plea to assault charge and determinate sentence of 9 years)
  • People v Payton, Orange County Indict. #95-359 (dismissal of manslaughter indictment in alleged baby-shaking death)
  • People v Bates, Orange County Indict. #91-473 (rape conviction involving furloughed state prisoner)
  • People v Killeen, Orange County Indict. #90-26 (conviction of 14-year old in murder of taxicab driver)
  • People v Serrano, Orange County Indict. #87-112) (acquittal in kidnapping trial)

Trial and Appeal

  • People v Hansen, 203 AD2d 588 (2nd Dept. 1994) (New York Second Department upheld conviction of ex-Marine in first degree assault in Middletown which left victim a quadriplegic)
  • People v Vogt, 172 AD2d 864 (2nd Dept. 1991) (New York Second Department upheld dismissal of rape and sexual abuse indictment)
  • People v Brown, 136 AD2d 1 (2nd Dept. 1988) (New York Second Department upheld convictions in Brinks robbery-murder trials from Rockland County)

Appeal

  • People v Bussey, 19 NY3d 231 (2012) (New York Court of Appeals extends the Suarez-Feingold prohibition of charging depraved indifference murder when a single victim is shot or stabbed to death to a situation where a single victim is beaten to death; the Court also held for the first time that the merger doctrine applies to Kidnapping in the First Degree)
  • People v Travis, 67 AD3d 1034 (2nd Dept. 2009) (New York Second Department upheld sentence of 15 years to life for a DWI conviction, rejecting substantive and procedural challenges to New York’s persistent felon statute)
  • People v Rhodes, 49 AD3d 668 (2nd Dept. 2008) (New York Second Department upheld conviction in murder of Highland Falls elementary student despite finding that police should have given Miranda warnings before taking statements from defendant in custody)
  • People v Peinado, 266 AD2d 242 (2nd Dept. 1999) (New York Second Department upheld conviction in murder of Maybrook Little Leaguer over argument that state police gathered evidence tainted by an illegal confession)
  • People v Bryant, 92 NY2d 216 (1998) (New York Court of Appeals upheld convictions in state bank robbery and interstate shootout over argument that New York Double Jeopardy Clause prohibited retrial after conviction on similar federal charges)
  • People v Pate, 182 AD2d 717 (2nd Dept. 1992) (New York Second Department upheld Westchester County murder conviction in circumstantial evidence case)
  • People v Stackhouse, 160 AD2d 822 (2nd Dept. 1990) (New York Second Department upheld Orange County manslaughter conviction in case involving repeated confessions)
  • People v Williams, 149 AD2d 549 (2nd Dept. 1989) (New York Second Department upheld Orange County conviction in so-called “Good Samaritan” murder case despite proffer of newly discovered evidence)

Municipal – Article 78 and Declaratory Judgments – Defendant

  • Enlarged School District of the City of Middletown v City of Middletown, 96 AD3d 840 (2nd Dept. 2012) (New York Second Department reverses trial court ruling on ripeness grounds, leaving open the question whether a municipality can charge a developer an impact fee for offsite improvements to municipal infrastructure made necessary by that development)
  • Adult Home at Erie Station v Assessor, City of Middletown, 10 NY3d 205 (2008) (New York Court of Appeals held that adult home facility and separate residential dwellings should be fully tax exempt despite the rental at near market rates to a substantial number of tenants)
  • Vite v Town of Greenville, 282 AD2d 611 (2nd Dept. 2001) (New York Appellate Division upholds Greenville ZBA denial of nonconforming use certificate and area variance to owner of proposed multi-family dwelling)
  • Boffa v City of Middletown, Orange County Index #99-4509 (New York Supreme Court upheld Middletown Planning Board decision denying special use permit to multi-family dwelling that had history of substantial criminal activity on premises)
  • Sweeney v Town of Greenville, Orange County Index #98-90 (New York Supreme Court upheld Greenville in challenge to implementation of its town budget by former member of town board)
  • Tilmont v City of Middletown, 238 AD2d 598 (2nd Dept. 1997) (New York Second Department upheld Middletown ZBA determination that boardinghouse did not deserve non-conforming use certificate)
  • Dolan v City of Middletown, Orange County Index #97-2260 (complaint dismissed after holding by New York Supreme Court that Middletown did not unfairly discriminate against owner of multi-family dwelling)
  • 8C’s Construction v City of Middletown, Orange County Index #97-723 (New York Supreme Court upheld Middletown ZBA’s decision upholding denial of building permit to developer)
  • PACER v City of Middletown, 217 AD2d 47 (3rd Dept. 1995) (New York Third Department determined that Middletown Planning Board could not deny special use permit on basis of tax exempt status)
  • Schrade v City of Middletown, Sullivan County RJI #95-52-13441 (New York Supreme Court upheld Middletown ZBA interpretation of city boardinghouse ordinance)

Municipal – Article 78 and Declaratory Judgments – Plaintiff

  • DeStefano v Emergency Housing, 281 AD2d 449 (2nd Dept. 2001) (New York Appellate Division — with a dissenting opinion — upholds dismissal of complaint alleging that homeless shelter operating as public nuisance and in violation of city zoning ordinance)
  • City of Middletown v Yuen, Orange County Index #97-5756 (Middletown granted injunction by New York Supreme Court against opening of stripclub in violation of moratorium and zoning codes)

Environmental – Plaintiff

  • Feldman v Menorah Congregation, Index # 1873-04 (Sullivan Cty 2013) (Sullivan County Supreme Court awarded one-half million dollars to 3 property owners for wrongful diversion of water, nuisance and trespass by a neighboring bungalow colony during construction of a parking lot)
  • Basha Kill Area Association v Planning Board of the Town of Mamakating, 46 AD3d 1309 (3rd Dept. 2007) (New York Third Department holds that town planning board did not violate the State Environmental Quality Review Act and Article 16 of the Town Law by issuing SEQRA, and conditional final site plan and special use permit approvals to a manufacturing plant that will produce 30 tons of mushrooms per day, occupy over 825,000 square feet of floor space, rise 80 feet high, and consume about 425,000 gallons of water per day without obtaining a water conservation plan, a wetland disturbance permit application, a stormwater pollution prevention plan, a potable water system design, a sanitary wastewater system design, a process wastewater system design, detailed elevation and floor plan drawings, an odor mitigation plan, a noise mitigation plan, a visual impact mitigation plan, and a road safety improvement design)
  • Basha Kill Area Association v Town of Mamakating, 302 AD2d 662 (3rd Dept. 2003) (environmental group’s challenge to town comprehensive master plan and new zoning law dismissed on ground that all property owners who had been granted variances or special use permits under new zoning law should have been joined as necessary parties)

Environmental – Defendant

  • Miamisburg Development v City of Middletown, 02 Civ. 3043 (MDF) (federal CERCLA action against city for coal ash dumping settled before trial)

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Alex Smith, Esq. is a lawyer in Middletown, New York who can assist you with a range of legal needs. There are various points in all of our lives where we might need legal assistance. Alex Smith’s law firm can work with you to help you seek justice.

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