Attorney-At-Law

Three Executive Park Drive 

 Bedford, NH 03110

603-634-4300 (voice)   603-626-3647 (fax)

ASchulman@getmanstacey.com

Briefs & Motions

Graham v. EML Builders Inc.,

Rockingham County Superior Court, 07-E-594 (2008)

This is a motion to dismiss filed on behalf of the developer and declarant of a condominium complex.  The primary question presented is whether the the plaintiff, who owns a single unit in the condominium has standing to bring the case.

Issues:  Condominium Law; Civil Procedure; Standing

State of New Hampshire v. Michael Brown,

Rockingham County Superior Court, 06-CR-3344 and 3355 (2008)

This is a motion for a new trial filed on behalf of a man convicted of attempted murder by strangulation.  The motion argues that his trial lawyer was Constitutionally ineffective because he failed to pursue a defense of voluntary renunciation, failed to request lesser included offense instructions, and allowed inadmissible and prejudicial evidence to be presented at trial.

Issues:  Criminal Law and Procedure; Evidence.

Derry Senior Center LLC. v. Town of Derry,

New Hampshire Supreme Court 2007-0569 (2008)

This brief was filed in an appeal from a planning board's denial of site plan approval for an over-55 residential community.  The issue presented is whether a planning board may find that a community septic system is unsafe if (a) the system was permitted by DES, (b) the town has no land use regulation that specifically addresses septic system design or set back requirements, and (c) there is no site specific expert evidence in the record.

Issues:  Zoning and Planning; Municipal Law.

Clark and Lavey Benefits Solutions Inc. v. Education Development Center Inc.

New Hampshire Supreme Court, 2007-0423 (2008)

This brief was filed on behalf of an independent insurance brokerage business that specializes in selling group health, life and disability plans to employers.  At trial our client prevailed on a claim that one of its corporate customers unlawfully redirected commissions to a new broker. At the same time, the customer won a small set-off based on the manner in which some commissions were calculated.  Both parties appealed and the Supreme Court affirmed. (Supreme Court decision here.)

Issues:  Civil Procedure; Fiduciary Duty, Consumer Protection.

State of New Hampshire v. John Doe,

New Hampshire Supreme Court 2006-0086 (2006)

 This brief was filed following the defendant's conviction for forcible rape.  The issue presented is the admissibility of the complainant's prior and allegedly false accusations against others. 

Issues:  Criminal Law And Procedure; Evidence.

John Doe v. Jane Doe,

New Hampshire Supreme Court, 2006

This brief was filed in a divorce case.  The trial court ordered an unequal division of marital assets based on the fact that one spouse was likely to receive substantial assets under a family trust.  We argued, among other things, that the trust assets could not be taken into account for any purpose due to a valid prenuptial agreement.

Issues:  Property Distribution In Divorce Cases; Prenuptial Agreements; Evidence.

State Of New Hampshire v. John Doe

Rockingham County Superior Court,

02-S-0552 to 0555 (2005)

This motion for post-conviction relief was filed on behalf of an inmate at the New Hampshire State Prison who is serving a 20 to 40 year sentence for Aggravated Felonious Sexual Assault.  We asked the court find that the sentence was illegal and, of greater importance, that the conviction must be set aside due to the ineffective assistance of trial counsel. 

Issues:  Criminal Procedure; Criminal Law; Ineffective Assistance of Counsel; Evidence.

The Club At Meadowbrook, LLC.  v. Town Of Salem,

Hillsborough County Superior Court, Southern District, 04-E-0459 (2005)

This motion was filed on behalf of a real estate development company that constructed a senior housing condominium in Salem, New Hampshire.  After the project was approved by the Planning Board, but before it was completed, the Town adopted a sewer and water assessment ordinance which cost the developer approximately $1,000,000 in new user fees.  We challenged the Town's authority to enact such an ordinance.

-Motion For Summary Judgment

-Objection To Town's Motion For

  Summary Judgment

Issues:  Municipal Law; Water and Sewer Assessment; Planning and Zoning; Equal Protection and Constitutional Law.

State of New Hampshire v. McGill, New Hampshire Supreme Court, 04-0442 (2005)

This brief was filed on behalf of a criminal defendant who was convicted of first degree assault.  He testified that he acted in self-defense.  The issues  presented were (a) whether the defendant had a right to impeach the alleged victim with a prior conviction for assault and battery and (b) whether the defendant should have been allowed to cross-examine the alleged victim regarding the fact that he was "off his medication" at the time of the fight.

Issues:  Criminal Procedure; Evidence.

Yekimoff v. Seastrand, U.S. Court of Appeals for the First Circuit, 04-1459 (2004)

This brief was filed on behalf of a county prosecutor and county department of corrections. The plaintiff was a former criminal defendant and detainee.  He raised multiple challenges to his arrest, prosecution and conditions of confinement.  Ruling in our clients’ favor, the U.S. District Court dismissed all of the plaintiff’s claims.  The Court of Appeals affirmed by order.

Issues:  Civil Rights;  Prosecutorial Immunity;   Witness Immunity;   Municipal Liability;  Criminal Procedure;  Jail Conditions;  Fourth Amendment Search and Seizure;  Federal Civil Procedure.

Martins v. 1400 Motors of Nashua, Inc., Hillsborough County Superior Court,  04-C-358 (2004)

This motion to dismiss was filed in a case where the plaintiff alleged defamation, invasion of privacy and infliction of emotional distress arising from the publication of offensive material in a used car advertisement.  The trial court granted the motion in part but allowed most of plaintiff’s claims to proceed.  Links:  Superior Court order.

Issues:  Defamation;  “False Light” Invasion of Privacy;  Intrusion Upon Seclusion;  Worker’s Compensation Exclusivity;  First Amendment Constraints On State Common Law Torts.

White v. Coplan, 339 F.3d 18 (1st Cir. 2005)

We filed this amicus brief filed on behalf of the New Hampshire Association of Criminal Defense Lawyers in support of a petition for a writ of habeas corpus brought by a state prisoner.  Largely adopting our reasoning, the U.S. Court of Appeals for the First Circuit held that the petitioner, who was serving a 30 to 90 year sentence, was entitled to a new trial because he was denied his Sixth Amendment right to confront his accuser.

Issues:  Criminal Procedure;  Sixth Amendment Right Of Confrontation;  Admissibility Of Sexual Assault Complainant’s Prior False Accusations.

Hull v. Municipality of San Juan, 356 F.3d 98 (1st Cir. 2004)

This brief was filed on behalf of a civil tort plaintiff who lost a case in the U.S. District Court for the District of Puerto Rico.  The trial court held that by failing to disclose his prior medical condition the plaintiff committed a fraud on the court and, therefore, the complaint was dismissed.   We were not trial counsel and we were not involved in this case until after the notice of appeal was filed.  We were unsuccessful in our attempt to have the case reversed for a jury trial on the merits.  (Brief available only in WordPerfect).   Link:  Court of Appeals opinion.

Issues:  Fraud On The Court;  Federal Civil Procedure.

Giniewicz v. Red Roof Inns, Inc., Hillsborough County Superior Court, 04-C-124 (2004)

This motion for summary judgment was filed on behalf of a hotel management company that was sued by a guest for malicious prosecution and violation of the New Hampshire Consumer Protection Act.  Our motion was granted.

Issues:  Malicious Prosecution;  Innkeeper’s Duties;  Consumer Protection

State of New Hampshire v. John Doe, Hillsborough County Superior Court, 04-C-281 (2004)

These motions were filed in a criminal case for “unlawful use of a computer service.”  Our client was charged with two felonies for allegedly soliciting sexual contact during a series of instant messaging conversations with a police officer who was posing as a fourteen year old girl.  After extensive motions practice, the case was resolved by a misdemeanor plea to a non-reportable offense.  One motion is a First Amendment based constitutional challenge to the crime of “unlawful use of a computer service.”  Another is a multifaceted challenge to a companion indictment for attempted endangerment of a child.  The third motion sought to suppress the transcripts of the instant messaging sessions under New Hampshire’s Wiretap Act.

-Motion To Dismiss (unlawful use of a computer)

-Motion To Dismiss (attempted endangerment)

-Motion To Suppress

Issues:  First Amendment Overbreadth Doctrine;  Criminal Solicitation;  Criminal Attempt;  Statutory Construction;  Wiretap Act;  Criminal Practice and Procedure.

Remsburg v. Docusearch, 816 A.2d  1001, 149 N.H. 148 (N.H. 2003)

This brief raised several questions of first impression that were certified by the U.S. District Court for the District of New Hampshire.   We represented an internet based investigation agency that provided a young woman’s social security number and work address to an individual who later killed her.  The questions presented included whether this conduct violated (a) the New Hampshire Consumer Protection Act; (b) the victim’s right to privacy or (c) the more general common law duty of care.  The Court answered these questions in this opinion.

Issues:  Privacy;  Intrusion Upon Seclusion;  Commercial Appropriation;  Negligence;  Consumer Protection.

Ellsworth v. Warden, 333 F.3d 1 (1st Cir. 2003) (en banc) (sealed brief)

This brief was filed in support of a state prisoner’s application for a federal writ of habeas corpus.  Our client had been convicted of molesting an eleven year old boy and sentenced to a thirty-six year prison term.  The New Hampshire Supreme Court affirmed his conviction.  We argued that our client was denied his federal right to confront his accuser and present exculpatory evidence at trial because the state court excluded proof of the complainant’s prior false accusations and prior sexual victimization.  A three judge panel of the United States Court of Appeals for the First Circuit agreed and, in this opinion, ordered the issuance of a conditional writ of habeas corpus.  However, the full Court of Appeals later reheard the case en banc and issued a much narrower opinion which rejected most of our claims but remanded the case to the District Court.

Issues:  Scope Of Federal Habeas Corpus Review; Criminal Procedure; Sixth Amendment Right Of Confrontation; Right To Discovery Of Exculpatory Evidence; Compulsory Process And Right To Present Witnesses; . 

 Second Generation Properties v. Pelham, 313 F.3d  620 (1st Cir. 2002)

This brief was filed in support of a landowner’s application to construct a wireless communications tower.  The town land use authorities twice denied a permit under the local zoning ordinances.  We claimed that the Federal Telecommunications Act required the issuance of a permit.  The Court of Appeals disagreed in this opinion.

Issues:  Federal Telecommunications Act of 1996; Land Use and Zoning;

 State v. Foss, 804 A.2d 462, 148 N.H. 209, (N.H. 2002)

This brief challenged the sufficiency of the evidence of in a prosecution for aggravated felonious sexual assault.  The question presented was whether the State needed to prove actual coercion when the actor was a correctional office and the victim an inmate.  The New Hampshire Supreme Court agreed that actual coercion was an element of the offense and reversed our client’s conviction.  Link:  N.H. Supreme Court Opinion.

Issues:  Aggravated Felonious Sexual Assault; Criminal Practice And Procedure      

 This website supplements the biographical and professional information which is at the Getman, Stacey website, www.GetmanStacey.com .  This web site is for information only. This site does not provide legal advice and your use of this site does not establish an attorney/client relationship. The material herein may be regarded as advertising under appropriate judicial rules.