NorthCarolinaLaw

https://edelsteinpayne.com/criminal-defense Sexual Abuse is, Among Other Things, a Personal Injury Originally Posted by Sean Cecil Nov 27, 2017 The news lately is full of women coming forward to explain that they have been the victim of sexual abuse. Largely involving prominent men in positions of power enabling them to intimidate, coerce, or cover up their actions, these high profile stories have emerged in a variety of contexts often involving entertainment and politics. Some effort has been made, at least in social media, to clarify that these stories are common involving less prominent men as well. They happen in employment. They happen at schools. They happen at churches. At sporting events. And, as detailed in a Buzzfeed investigative report, strip mall massage parlors.  If you have been the victim of a sexual assault, whether in the workplace or elsewhere, you have rights. A sexual (or any other) assault is a form of personal injury, and basical...

https://edelsteinpayne.com/criminal-defense NC Court of Appeals Confirms No Duty to Retreat Prior to Self-Defense Originally Posted by Sean Cecil Jun 07, 2017 (0 Comments) North Carolina law does not require retreat before use of self-defense. "Perfect" self-defense is a defense against criminal charges; "imperfect" may be used as a mitigating factor in sentencing. Perfect self-defense requires all four of the following elements: (1) It appeared to defendant and he believed it to be necessary to use force to save himself from harm;  (2) Defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; (3) Defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) Defendant did not use excessive force.  Imperfect sel...

https://edelsteinpayne.com/criminal-defense Obtaining Property by False Pretenses (Originally Posted by Sean Cecil May 09, 2017 : 2 Comments In North Carolina, Obtaining Property by False Pretenses is a felony. If the property obtained has a dollar value of less than $100,000.00, the crime is a relatively low Class 'H' felony. To obtain a conviction for "OPFP" the government must prove, beyond a reasonable doubt, that a defendant is guilty of all the following elements: 1. made a representation about a past or existing fact or a future event 2. that was false and 3. was calculated and intended to deceive, AND 4. the representation did actually deceive another person (this includes associations, governments, corporations, etc) AND 5. the defendant thereby obtained,  or attempted to obtain,  money, goods, property, services... or any other thing of value from that person.  Most of these cases are low-level felonies. Examples I have seen often...

https://edelsteinpayne.com/criminal-defense NC Court of Appeals re-affirms Protection of Privacy in a Home's "Curtilage" and Suppresses Marijuana Originally Posted by Sean Cecil | Apr 19, 2017 The Constitution had a pretty good day at the North Carolina Court of Appeals yesterday. Out of ten criminal decisions issued, four convictions were reversed; two for insufficient evidence, one for a jury instruction that was not supported by evidence during the trial, and one for an unlawful search. Notably, two of the cases involved the issue of "constructive possession", commonly used by the government to get around the pesky little issue of charging someone with a crime when they didn't  actually  possess contraband but were found near it. Actual and constructive possession were defined neatly in  State v. Billinger  (context of illegal possession of a firearm):   A person has actual possession of a firearm if it is on his person, he is aware of its...

https://edelsteinpayne.com/employment-law Home Healthcare Workers are Entitled to Overtime Pay Originally Posted by Sean Cecil Jul 06, 2016 (0 Comments) Long the subject of a terribly unfair rule that exempted them from such standard employment rights as overtime and minimum wage, home healthcare workers are among the worst treated of American workers. Home Healthcare workers hired through a third-party staffing agency have been exempted from those rules since 1974! The Obama administration attempted to remedy this injustice in 2013, and the result has been tied up in courts until last week, when the United States Supreme Court ruled that they would not hear further appeal (the administration's rulemaking prevailed in the court of appeals) effectively ratifying the rule. Home healthcare workers, including, nurses, certified nursing assistants, physical therapists, and others who provide services to the elderly and infirm to help keep them out of nursing homes, provid...

https://edelsteinpayne.com/personal-injury A City's Duty to Maintain Streets and Sidewalks in North Carolina Originally Posted by Sean Cecil Jul 01, 2016 (0 Comments) Yesterday I read an  article   about a recent appellate decision in Washington State, confirming the City of Port Orchard's liability for a bike accident allegedly caused by defective maintenance of a city street. I am licensed in Washington (currently inactive) spent the formative years of my legal career, and keep up with interesting legal developments there. The article, which described the city's liability as previously unresolved, piqued my curiosity regarding such issues here in North Carolina. I am pleased to report that it appears cities in North Carolina also can be liable for injuries that result from negligent maintenance of city roads and sidewalks. (It should be noted, however, that roads and sidewalks maintained by the state Dept. of Transportation are likely protected by state sover...

https://edelsteinpayne.com/employment-law Forsythe County Superior Court Judge Orders City of Kernersville to Produce Personnel Documents for our Client Originally Posted by Sean Cecil May 19, 2016  (0 Comments) On Monday, firm partner Travis Payne argued a mandamus petition in Forsythe County on behalf of our client, a Kernersville firefighter, who was fired and then denied access to unredacted copies of documents used to support his firing. Citing an important 2013 court case,  Wind vs. City of Gastonia  (for which he drafted an  amicus curiae  brief), Attorney Payne successfully argued that records related to our client's discipline is not subject to the disclosure exemptions for employment records. Although the final order is pending, the City has indicated an inclination to appeal the ruling. The City will also be required to provide the client with a new grievance hearing.   A writ of mandamus is a court order to a public offici...

New Overtime Rules Published! Posted by  Sean Cecil  |  May 19, 2016  |  0 Comments More pay for more work. It's a simple premise that may have been taken for granted at some point, but in the past couple decades has been somewhat eroded by past administrations' failure to update the overtime rules under the Fair Labor Standards Act (FLSA). Under FLSA, employers can deem some salaried workers exempt from overtime if they fulfill certain duties and are paid at least a certain amount. Up until now, that amount has been $455/week, roughly $23,000.00 a year, not a living wage in many American cities. However, the rule has changed, and as of December 1, 2016, employers must pay their salaried workers $913/week to lawfully exempt them from overtime (The overtime rate of pay is 1.5 times their regular rate of pay for each hour worked over 40 in a week).  According to the Department of Labor's May 18, 2016 press release, key provisions of the fina...