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BORDER SEARCH OF FILM, DISKS GETS APPROVAL NEW YORK — Developing photographic film and reading computer disks is within the scope of a routine border search, a Southern District judge has ruled. In a decision that is apparently the first of its kind in the country, Judge Lewis Kaplan rejected a motion to suppress statements made and evidence seized from a convicted pedophile stopped at a Texas airport. He said that U.S. Customs agents had a “reasonable basis for suspecting that the camera, film and computer diskettes contained pornographic images.” The case involved defendant Stefan Irving, who was employed as a chief physician for the Middletown, N.Y., school district when he pleaded guilty in 1982 to first-degree sexual assault for abusing young boys. In May 1998, he was under investigation as one of several individuals who traveled to Mexico to have sex with children. Alerted that Irving had visited an orphanage in Mexico, Customs agents stopped him and went through his baggage upon his return to Dallas-Fort Worth Airport on May 27, 1998. The search yielded a disposable camera and two computer diskettes. The camera contained photos of a guesthouse in Mexico that Judge Kaplan said “now figures prominently in the government’s case,” and photos of Irving with boys and another suspect in the investigation. The diskettes, the judge said, contained images of child erotica. — The New York Law Journal VERDICT SET ASIDE OVER LAWYER’S CONDUCT NEW YORK — A Bronx, N.Y., judge has set aside a $16 million jury verdict for what he called “reprehensible” conduct by one of New York’s top medical malpractice attorneys, who challenged the judge in numerous heated exchanges. Supreme Court Justice Stanley Green said the attorney, Thomas Moore of Kramer, Dillof, Livingston & Moore, “created a hostile climate that obscured the issues, rendered the trial unfair and was degrading to the institution of the court.” Writing in Smith v. Sophia AU, M.D., 22183/99, an 11-page opinion dated late last month, Justice Green cited numerous instances of combativeness found in trial transcripts, which reveal Moore and the judge squabbling over the judge’s instructions, his rulings on objections and how to question witnesses properly. Moore said Tuesday that he was “upset” by the ruling and already had filed a notice of appeal. Though some remarks cited in the judge’s opinion were inflammatory, Moore said, they did not justify reversing a verdict from a two-week trial that ended without sanctions, a motion for a mistrial or a curative instruction to the jury. After the trial, the jury sustained three of five malpractice claims against two of three doctors at Montefiore Medical Center who treated Kevin Smith, a former law-firm clerk who claimed the doctors failed to diagnose medical problems that eventually led to a stroke. Justice Green wrote that he tried to finish the trial “without declaring a mistrial or holding [Moore] in contempt of court.” But “upon reflection” and consideration of a motion to set aside the verdict in part based on Moore’s conduct, the judge said, “It is apparent that plaintiff’s counsel’s conduct was reprehensible.” — The New York Law Journal

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