Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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REPRODUCED ON RECYCLED PAPER
TABLE OF CONTENTS
TABLE OF CONTENTS...............................................................................................................................- 1 -
TABLE OF AUTHORITIES...........................................................................................................................- 3 -
Cases.......................................................................................................................................................- 3 -
Statutes...................................................................................................................................................- 5 -
Other Authorities....................................................................................................................................- 6 -
PRELIMINARY STATEMENT...............................................................................................................- 8 -
COUNTERSTATEMENT OF QUESTIONS PRESENTED....................................................................- 9 -
COUNTERSTATEMENT OF THE NATURE OF THE CASE...........................................................- 10 -
FACTS...................................................................................................................................................- 11 -
A. The Court Below Found That There Was “Probable Cause” for the Ex
Parte Search Warrants That Pauperized the Posners By Seizing All of
Their Money................................................................................................................................- 13 -
B. Comprehensive Applications Made and Hearings Held Before the Court
Below Authorizing Payments from Seized Funds for Reasonable
Attorneys’ Fees, Experts’ Fees and Living Expenses.....................................- 15 -
C. Prior to Trial, NYPD Refused to Comply with Court Orders to
Release Seized Funds to Pay for Attorneys’ Fees and Expenses.............- 19 -
D. Following a Full Hearing on the Merits, The Court Below Rendered
a Memorandum Decision and Order Directing The NYPD Comply with All
Orders for Payments from Seized Funds...................................................................- 22 -
ARGUMENTS:.......................................................................................................................................- 26 -
I. THE COURT BELOW HAD BOTH STATUTORY AUTHORITY OVER THE DISPOSITION
OF ASSETS SEIZED BY SEARCH WARRANTS UNDER THE COURT’S CUSTODY [C.P.L.
§ 690.55] AND EQUITABLE AUTHORITY TO ISSUE AND ENFORCE ITS OWN ORDERS..-
26 -
II. UNDER NEW YORK LAW, A BROADER SIXTH AMENDMENT RIGHT TO COUNSEL OF
CHOICE AND FOR LIVING EXPENSES FROM SEIZED ASSETS IS RECOGNIZED THAN
UNDER THE FEDERAL STATUTES.................................................................................................- 31 -
III. THE COURT BELOW DID NOT ABUSE ITS DISCRETION IN ISSUING ORDERS TO
RELEASE FUNDS FOR REASONABLE ATTORNEYS’ FEES, EXPERTS’ FEES AND LIVING
EXPENSES...........................................................................................................................................- 39 -
2
IV. NYPD’s Commencement of a Forfeiture Action Under NYC Admin Code §
14-140 Does Not Divest the Court Below of Its Exclusive Jurisdiction
Over the Seized Monies..........................................................................................................- 45 -
SANCTIONS:.......................................................................................................................................- 50 -
THIS COURT SHOULD IMPOSE SERIOUS SANCTIONS UPON NYPD, BY VACATING THE
CONVICTION AND SENTENCE AND DISMISSING WITH PREJUDICE THE INDICTMENT - 50
-
A. NYPD Acted in “Bad Faith” By Circumventing Procedural Safeguards
of New York State Forfeiture Statutes and Interfering With the
Posners’ Constitutional Right to Counsel of Choice and a Proper
Criminal Defense [NYS Const., Article 1, §6]...................................................- 52 -
B. This Court is Empowered to Impose Serious Sanctions Upon NYPD,
Including Vacating the Conviction and Sentence and Dismissal With
Prejudice of the Indictment [C.P.L. §§ 210.20[1][h] and 210.40(1)] - 56
-
CONCLUSION:....................................................................................................................................- 62 -
THIS COURT SHOULD AFFIRM THE DECISION AND ORDER OF THE COURT BELOW AND
SERIOUSLY SANCTION NYPD........................................................................................................- 62 -
PRINTING SPECIFICATIONS STATEMENT.................................................................................- 63 -
3
TABLE OF AUTHORITIES
Cases
4
Morgenthau v. Allocca, N.Y.L.J., Sept. 25, 1995, at 29, col. 1 (Sup.
Ct., N.Y. Co. 1995)..............................................................................................................- 37 -
Morgenthau v. Citisource, Inc., 68 N.Y.2d 211 (1986)....................................- 36 -
Morgenthau v. Clifford, 157 Misc. 2d 331, 597 N.Y.S.2d 843 (Sup. Ct.
N.Y. Co. 1992), appeal withdrawn, 198 A.D.2d 923, 603 N.Y.S.2d 937
(1st Dep’t 1993).......................................................................................................................- 42 -
Morgenthau v. Efargan, Slip Op. November 2, 2005, Sup Ct, NY County,
Index No. 401214/05..............................................................................................................- 39 -
Morgenthau v. Figliola, 4 Misc. 3d 1025(A), 798 N.Y.S.2d 346 (Sup. Ct.
New York County June 2, 2004)............................................................................- 41 -, - 45 -
Moss v. Spitzer, 19 A.D.3d 599, 600 (2d Dep’t 2005)......................................- 26 -
Pena v. Municipal Court, 96 Cal.App.3d 77 (Ct. of Appeals, 5th Dist.,
Cal. 1979)...................................................................................................................................- 56 -
People v. Arroyave (49 NY2d 264 [1980]...........................................................- 32 -, - 33 -
People v. Bing, 76 NY2d 331 [1990]..............................................................................- 32 -
People v. Burton, 6 N.Y.3d 584, 815 N.Y.S.2d 7(2006)....................................- 15 -
People v. Davis, 75 NY2d 517 [1990]............................................................................- 32 -
People v. Falynn Rodriguez, Index No. 2008NY053105 (Crim. Ct., N.Y.
Co. 2010).....................................................................................................................................- 57 -
People v. Fysekis, 164 Misc.2d 627 (Crim. Ct, Bronx Co. 1995)...............- 31 -
People v. Goggins, 34 NY2d 163 [1974].......................................................................- 59 -
People v. Hobson, 39 NY2d 479 [1976].........................................................................- 32 -
People v. Komosa, 47 Misc.2d 634 (Cty. Ct., Cty. Kingston, NY 1965) - 56 -
People v. Louis Posner, Index No. 2010NY022267 (Crim. Ct., NY Co.
March 23, 2010).......................................................................................................................- 22 -
People v. Marin, 86 A.D.2d 40, 448 N.Y.S.2d 748 (2d Dep’t 1982)............- 9 -
People v. Martinez, 151 Misc.2d 641 (Sup Ct, NY County, 1991).- 31 -, - 42 -, -
58 -
People v. McIntosh, 199 A.D.2d 540, 606 N.Y.S.2d 248 (2d Dep’t 1993) - 9 -
People v. Pantino, 106 A.D.2d 412, 482 N.Y.S.2d 334 (2nd Dep’t 1984) - 57 -
People v. Purley, 297 A.D.2d 499, 747 N.Y.S.2d 10 (2002)............................- 9 -
People v. Salzone, 98 Misc.2d 131 (Crim. Ct., Kings County 1978).......- 31 -
People v. Settles, 46 NY2d 154 (1978).......................................................................- 32 -
People v. Springer, 122 A.D.2d 87, 504 N.Y.S.2d 232 (2d Dep’t 1986) - 57 -
People v. Tineo, 64 NY2d 531 (1985)............................................................................- 33 -
Pinter v. City of New York, 710 F.Supp.2d 408(SDNY Sept. 13, 2010)...- 58 -
Property Clerk of New York City Police Dept. v. Ferris, 77 N.Y.2d 428,
568 N.Y.S.2d 577 (1991)....................................................................................................- 48 -
Property Clerk, New York City Police Dept. v. Batista, 111 A.D.2d 135,
489 N.Y.S.2d 739 (1st Dep't 1985)...................................................................- 48 -, - 49 -
Property Clerk, New York City Police Dept. v. BMW Financial...................- 48 -
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Property Clerk, New York City Police Dept. v. Conca, 148 A.D.2d 301,
538 N.Y.S.2d 268 (1st Dept. 1989).............................................................................- 48 -
Property Clerk, New York City Police Dept. v. Corbett, 116 Misc.2d
1097, 457 N.Y.S. 175 (Sup. Ct., N.Y. Co., Spec. Term 1982)..................- 48 -
Property Clerk, New York City Police Dept. v. Deans Overseas Shippers,
Inc., 275 AD2d 204 (1st Dep’t. 2000)........................................................................- 49 -
Property Clerk, New York City Police Dept. v. Ferris, 77 NY2d 428
(1991)............................................................................................................................................- 49 -
Property Clerk, New York City Police Dept. v. Ford, 30 Misc.3d 301,
914 N.Y.S.2d 594 (Sup. Ct., NY Co., Nov. 24, 2010).....................................- 30 -
Property Clerk, New York City Police Dept. v. Hurd, 130 Misc.2d 358,
496 N.Y.S.2d 197 (Sup. Ct. N.Y. Co. 1985)..........................................................- 52 -
Property Clerk, New York City Police Dept. v. Hurlston, 104 AD2d 312
(1st Dep’t 1984).............................................................................................................- 48 -, - 49 -
Property Clerk, New York City Police Dept. v. Jennings, 11 Misc.3d
1088(A), 819 N.Y.S.2d 851 (Sup. Ct., N.Y. Co. 2006)..................................- 48 -
Property Clerk, New York City Police Dept. v. Lanzetta, 157 AD2d 600
(1st Dep’t 1990).......................................................................................................................- 49 -
Property Clerk, New York City Police Dept. v. Louis and Betty Posner,
(Sup. Ct., NY County), Index No. 400536/10.......................................................- 20 -
Rampersad v. New York City Dep’t of Educ., 30 AD3d 218 (1st Dep’t
2006)...............................................................................................................................................- 57 -
Rojas v. City of New York, 27 AD3d 323 (1st Dep’t 2006).............................- 57 -
Roviaro v United States, 353 US 53 [1957]..............................................................- 59 -
State v. Crawley, 789 N.W.2d 899 (Minn. Ct. Appeals Sept. 28, 2010) - 56 -
Stephen Chang v. Hot Lap Dance Club, a/k/a Premium Events, LLC, Index
No. 103868-2008 (Sup. Ct., N.Y. Co., March 14, 2008)................................- 12 -
U.S. v. $490,920 in U.S. Currency, 911 F.Supp. 720 (SDNY 1996)............- 28 -
U.S. v. $876,915.00 U.S. Currency, More or Less, 874 F.2d 104 (2d Cir.
1989)...............................................................................................................................................- 34 -
U.S. v. Parcel of Land, Bldgs., Appurtenances and Improvements, Known
as 92 Buena Vista Ave., Rumson, New Jersey, 507 U.S. 111, 113 S. Ct.
1126 (1993)................................................................................................................................- 14 -
U.S. v. Stein, 541 F.3d 130 (2d Cir. 2009)...........................................................- 59 -
United States v. $31,990 in U.S. Currency, 982 F.2d 851, 856 (2d Cir.
1993)...............................................................................................................................................- 34 -
Von Hofe v. U.S., 492 F.3d 175 (2d Cir. 2007)....................................................- 14 -
Statutes
18 U.S.C. § 981...........................................................................................................................- 34 -
6
18 U.S.C. § 982...........................................................................................................................- 34 -
21 U.S.C. § 848...........................................................................................................................- 33 -
21 U.S.C. § 853...........................................................................................................................- 34 -
21 U.S.C. § 881...........................................................................................................................- 34 -
C.P.L. § 10.10(7)........................................................................................................................- 8 -
C.P.L. § 180.80...........................................................................................................................- 13 -
C.P.L. § 210.20...................................................................................- 10 -, - 11 -, - 59 -, - 60 -, - 61 -
C.P.L. § 210.40...................................................................................- 10 -, - 11 -, - 59 -, - 60 -, - 61 -
C.P.L. § 220.50(6)....................................................................................................................- 47 -
C.P.L. § 690.05...........................................................................................................................- 28 -
C.P.L. § 690.10...........................................................................................................................- 14 -
C.P.L. § 690.55...........................................................................- 9 -, - 10 -, - 23 -, - 26 -, - 27 -, - 29 -
C.P.L.R. § 1311[4]....................................................................................................................- 38 -
C.P.L.R. § 1312[4]........................................................- 19 -, - 36 -, - 37 -, - 38 -, - 41 -, - 43 -, - 47 -
C.P.L.R. § 1316...........................................................................................................................- 36 -
C.P.L.R. § 1317...........................................................................................................................- 36 -
C.P.L.R. § 1349...........................................................................................................................- 47 -
C.P.L.R. § 5701(a)......................................................................................................................- 9 -
C.P.L.R. Article 13-A...........................................................- 16 -, - 18 -, - 23 -, - 36 -, - 37 -, - 47 -
Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185............- 35 -
CPL § 710.60..................................................................................................................................- 13 -
CPLR § 5518....................................................................................................................................- 50 -
New York Lawyer’s Code of Professional Responsibility, DR 2-110(A)...- 53 -
NYC Admin. Code § 435-4.0[e]............................................................................................- 52 -
NYC Admin. Code, § 14-140.....................................................................- 10 -, - 20 -, - 23 -, - 46 -
NYS Const., Article 1, § 6.........................................................- 10 -, - 11 -, - 27 -, - 32 -, - 42 -
P.L. § 175.30......................................................................................................................- 22 -, - 56 -
P.L. § 230.25(1).........................................................................................................................- 21 -
P.L. § 240.50(3)...............................................................................................................- 22 -, - 55 -
PL § 480.30....................................................................................................................................- 38 -
U.S.C.A. Const. Amend. 6............................................................................................- 11 -, - 32 -
U.S.C.A. Const. Amend. 8......................................................................................................- 14 -
Other Authorities
7
M. Scholl, Judge Clarifies Rules to Tap Frozen Funds, 6/29/2006 NYLJ,
1 (col. 3) - 40 -
New York Criminal and Civil Forfeitures, by Steven L. Kessler,
LexisNexis, 2007 Edition, pp. 4-184 – 4-185, @ Footnote 11 - 40 -
CAL NO._________ Submitted by:
Jonathan S. Gould,
Esq.
-against-
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jgould@nyc.rr.com
PRELIMINARY STATEMENT
Supreme Court, Criminal Part, New York County (Obus, J.), dated
3
Upon information and belief, Third-Party Respondents are
submitting to this Court a Supplemental Appendix which shall
include search warrants and supporting affirmation and affidavits;
inventory and affidavits of property taken pursuant to search
warrants; transcripts of proceedings dated August 20, 2009,
October 1, 2009, and October 29, 2009; Court Orders, dated
February 4, 2011 and March 17, 2011; Motion of Michael Kessler to
Lift Stay and for Expedited Appeal; and various correspondence
amongst the Court below, counsel for the defendants, the ADA, and
the forensic accountant.
9
jurisdiction does not act as a criminal court when
acting solely in the exercise of its civil
jurisdiction, and an order of determination made by
[the Court below] in its civil capacity is not an order
or determination of a criminal court even though it may
terminate or otherwise control or affect a criminal
action or proceeding.
A judgment issued by a criminal court and addressed to an
248 (2d Dep’t 1993); People v. Marin, 86 A.D.2d 40, 448 N.Y.S.2d
N.Y.S.2d 10 (2002).
690.55]?
10
3. Did the Court below not abuse its discretion in issuing
§ 14-140?
210.40(1)]?
seized by search warrant for the payment of fees and expenses The
11
A29].
The NYPD, with the support of the DA, requests that this
Court overrule the Court below and find that any monies seized by
search warrant may not be used for the payment of attorneys’ fees
FACTS
12
On the late evening of July 17, 2008, the NYPD arrested
Louis Posner at the Hot Lap Dance Club (the “HLD Club”) on West
accounts. The NYPD and DA seized all of the monies owned directly
accounts for both Louis Posner and Betty Posner, and currency
4
Prior to the arrests and seizures on July 17, 2008, neither Louis Posner,
age 52, nor his wife Betty Posner, age 56, had ever been arrested or charged
or convicted of a crime. There had never been any prior arrests or
convictions of any employees or customers at the HLD Club. There were never
any prior civil suits against the HLD Club, except for one suit by a customer
alleging personal injuries sustained during the course of a lap dance. Stephen
Chang v. Hot Lap Dance Club, a/k/a Premium Events, LLC, Index No. 103868-2008
(Sup. Ct., N.Y. Co., March 14, 2008).
13
held in safe deposit boxes at banks in which the Posners had
accounts.5 [A25]
A. The Court Below Found That There Was “Probable Cause” for the
Ex Parte Search Warrants That Pauperized the Posners By Seizing
All of Their Money
post any bail money, Louis Posner was sent to the Manhattan
14
of the seizures of all of their monies, the Posners were
all of the monies from the Posners and their controlled entities.
cause.”8 9
7
See Application of Harnishfeger, 158 Misc.2d 299 (Sup. Ct., Monroe Co. 1993
(The police through the mechanism of search warrants seeking seizure of
automobiles involved in narcotics trafficking, are actually seeking forfeiture
of these automobiles. However, the statute relied upon by the police, C.P.L. §
690.10, does not authorize such forfeiture.) B.T. Productions, Inc. v. Barr,
44 N.Y.2d 226, 405 N.Y.S.2d 9 (1978)
8
See, Von Hofe v. U.S., 492 F.3d 175 (2d Cir. 2007)(Forfeiture of claimant-
wife's one-half interest in family residence under Civil Asset Forfeiture
Reform Act (CAFRA), based on wife's alleged knowledge of husband's growing of
marijuana in residence was excessive, in violation of the Excessive Fines
Clause; even if jury found that wife was not an “innocent owner” within
meaning of CAFRA, wife bore minimal blame for criminal activity that occurred
at residence, absent evidence indicating any involvement in criminal activity
beyond knowledge. U.S.C.A. Const. Amend. 8); U.S. v. Parcel of Land, Bldgs.,
Appurtenances and Improvements, Known as 92 Buena Vista Ave., Rumson, New
Jersey, 507 U.S. 111, 113 S. Ct. 1126 (1993) (Protection afforded “innocent
owners” under forfeiture provision of the Comprehensive Drug Abuse Prevention
and Control Act of 1970 is not limited to bona fide purchasers, but may extend
to property acquired by gift that was purchased with proceeds of illegal drug
transactions.)
9
The City of New York commenced a civil action for a preliminary and
permanent injunction against Three Amigos SJL, Inc., d/b/a Cheetahs
15
The Court below never conducted an evidentiary suppression
Nevertheless, on June 19, 2009, the Court below ruled that there
A60].
Gentlemen’s Club ("Cheetahs"), at 250 West 43rd Street, New York City, as a
result of arrests of employees at the Cheetahs on July 11, 2009 and Nov. 12,
2009 for illegal activity including prostitution. On March 26, 2010, the City
of New York and Cheetah reached an agreement whereby Cheetah was enjoined from
violating Article 220 of the Penal Law (controlled substances offenses),
Article 221 of the Penal Law (offenses involving marijuana), Article 230 of
the Penal Law (prostitution offenses), Section 7-703 of the NYC Administrative
Code (public nuisance), and the NYS Alcoholic Beverage Control Law, and had to
pay a fine of $7,500.00, and Cheetah continues to operate as an adult
entertainment club. See, City of New York v. Three Amigos SJL, Inc., Index No.
400763-2010 (Sup. Ct., N.Y. Co. Mar. 28, 2011). Upon information and belief,
the NYPD did not seize monies held by the owner of Cheetah or the owner's
wife; or commence a forfeiture proceeding against the owner of Cheetah or the
owner's wife; or arrest the owner’s wife late at night in her apartment and
demand a high bail knowing that all of her money was seized.
10
See People v. Burton, 6 N.Y.3d 584, 815 N.Y.S.2d 7(2006)(Court of Appeals
vacated plea for trial court’s failure to grant hearing on motion to suppress
evidence.)
11
In other pre-trial motions, Louis Posner’s counsel argued that: (i)there was
a potential conflict of interest and ethical violation because several of the
People’s witnesses before the Grand Jury who were granted complete immunity
were represented by the same celebrity attorney who was allegedly also a
member of the HLD Club[A36]; (ii)the NYPD may have withheld Brady material
containing exculpatory evidence, as “there appear to be no tape recorded
conversations between the undercover [NYPD Vice] police officers and defendant
Louis Posner’s employees.”[A57]; and, (iii) the DA gave an unfair presentation
before the Grand Jury in order to avoid exculpatory evidence, notwithstanding
that “several employees called to testify did state that they were personally
unaware of prostitution at the club, that the majority of dancers were not
involved in such activity, or as noted, that defendant sometimes admonished
employees not to engage in such activity.”[A35]. The Court below denied all
of the Posners’ pre-trial omnibus motions.
16
B. Comprehensive Applications Made and Hearings Held
Before the Court Below Authorizing Payments from Seized
Funds for Reasonable Attorneys’ Fees, Experts’ Fees and
Living Expenses
DA, the DA voluntarily agreed to pay the counsel fees for the Posners.
On December 4, 2008, the Court issued orders, with the consent of the
DA, directing the DA to release funds seized and held in the DA’s
escrow account for legal fees for the Posners’ counsel.(A26, A74).
hearing before the Court below, on August 20, 2009, the retainer for
Fogelnest and Bondy were approved, upon a finding that the proposed
fee structure and hourly rates were reasonable (A26, A124). (TR
retention was also approved by the Court below on August 20, 2009
(A26, A124). (TR 8/20/2009, pp. 14-15). At the hearing before the
Court below on August 20, 2009, the DA advised the Court below that
17
proceeding in this case. (TR 8/20/2009, p. 6).
Bachner advised the Court below that he had been forced to file
(BR13-14).
vitae were reviewed and the Court below held that it would
“authorize the payment for the expert.” (A26, A124) (TR 10/1/2009
@ p. 7).(A26).
18
2009. (A26).
argued that:
19
I have some additional documents to present to the
Court if I may. The first is a Three Day Notice that
Mr. and Mrs. Posner indeed are in default in their rent
and are about to be evicted. Another is a statement
showing that they owe $7,817.88 in rent.
11)
(TR 12/3/2009).
fees and living expenses were approved and paid from seized
20
On March 2, 2010, Bondy wrote to Judge Obus advising the
Court below that the NYPD was refusing to comply with the Court
month before the scheduled trial date in the Court below. (A27)
Part of the State Supreme Court. The NYPD Property Clerk never
21
seized funds held by the Property Clerk in the Court below. No
the payment of fees from seized assets. The NYPD Property Clerk
motion.”(A67-A70).
NYPD (A27). At the hearing on March 23, 2010 before the Court
22
indictment, the Court question him to establish that
he’s fully satisfied that his attorneys have provided
him with effective assistance and have billed
appropriately for their services and the services of
the investigator and accountant they hired to assist in
his defense, because if he states he’s not satisfied
about these matters, the guilty plea would not be
acceptable to the People. This is our agreement. (TR
3/23/2010, pp. 6-7).
On the same day, March 23, 2010, while being jailed on three
Louis Posner, Index No. 2010NY022267 (Crim. Ct., NY Co. March 23,
2010).
below, and the NYPD and the DA had a full and fair opportunity to
object to the Court Orders for attorneys’ fees, experts’ fees and
living expenses. The NYPD argued that the Court below lacked
hearing, and argued that the legal billings for Fogelnest and
Bondy were not reasonable because they were almost double the
his policy and now objects to any payments for attorneys’ fees or
9-13)(A125-A171).
At the hearing before the Court below, Bondy argued that the
proceeding brought under the NYC Admin Code §14-140 is an end run
around NYS Article 13-A; that CPL § 690.55 allows for the Court
24
below to authorize payment of fees and expenses from assets
seized by search warrant; that the State Supreme Court has equity
by the Court that they would have been paid upon review of his
bills, that “we would have never entered the case… I would have
as the custodian of the funds; and that it is “in such bad faith
including full participation by the NYPD and the DA, Judge Obus
25
for February 18, 2010, March 9, 2010, and final Court Ordered
Court Orders for February 18, 2010, March 9, 2010, and final
26
Joseph Bondy, attorney fees for Louis Posner (A79) 5,600.00
Michael Kessler, forensic accounting (A82)` 17,149.50
Margaret Clemens, private investigator (A78) 7,017.53
ARGUMENTS:
the issuing judge.” Moss v. Spitzer, 19 A.D.3d 599, 600 (2d Dep’t
dated March 23, 2010 (the “Bondy Memo”), counsel for Louis Posner
argued that:
27
“In citing C.P.L. § 690.55, the NYPD neglects that
subsection 1(a) expressly provides that Your Honor can
retain funds seized pursuant to a warrant pending
“further disposition” not only pursuant to C.P.L. §
690.55(2), but also “to some other provision of law” –
here the United States and New York State
Constitutions. (A123).
At the hearing before Judge Obus on March 25, 2010, Bondy
argued:
28
search warrant technically remains in the custody of
the Court, and the District Attorney or property clerk
possesses the property only as an officer of the court,
subject to the court’s direction and disposition.
(Citations omitted).”
29
to a search warrant, the court must either: (a) Retain
it in the custody of the court pending further
disposition thereof ...; or (b) Direct that it be held
in the custody of the person who applied for the
warrant ..., upon condition that upon order of such
court such property be returned thereto or delivered to
another court.” Id. § 690.55(1).
Even if the court directs another person to retain
custody of the property, the “property seized pursuant
to a search warrant technically remains in the custody
of the court, and the District Attorney or property
clerk possesses the property only as an officer of the
court, subject to the court's direction and
disposition.”
Unlike the lower Criminal Court, the Court below also had
enforce its own orders. The Decision and Order held that:
cause.”
The NYPD argues that the State Supreme Court cannot simply
30
allocate the funds held by the NYPD Property Clerk under a theory
the New York State Supreme Court, Criminal Part, County of New
York.
See, McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972 ("McClendon
York, 69 N.Y.2d 432, 515 N.Y.S.2d 733 (1987); See also, Property
Clerk, New York City Police Dept. v. Ford, 30 Misc.3d 301, 914
31
In the Bondy Memo., counsel for Louis Posner argued that:
People v. Fysekis, 164 Misc.2d 627 (Crim. Ct, Bronx Co. 1995)
and void.). (A114). The NYPD should have known that while the
(BR37).
32
The NYPD does not dispute that People v. Martinez, 151
Misc.2d 641 (Sup Ct, NY County, 1991), held that “under New York
33
reasonable opportunity to select and retain
his counsel ...
“This constitutional guarantee ensuring the
right of a defendant to be represented at
trial by counsel of his own choosing serves
many critical needs ...
“By granting a defendant a reasonable
opportunity to retain counsel of his own
choosing, individual rights are honored and
the ultimate public concern at any criminal
trial--the need to discern the truth--is best
effectuated ...
“The courts of this State have remained
vigilant in their duty to ensure that a
defendant's right to retain counsel of his
own choosing is protected ... In short,
courts must remain sensitive to the benefits
which both the defendant and the legal
process itself derive from permitting the
criminally accused to obtain counsel of his
own choosing, and should undertake the steps
reasonably required to ensure that the
defendant's right to retain counsel is
honored.” (People v. Arroyave, 49 NY2d 264,
270-271, supra; see also, People v. Tineo, 64
NY2d 531 [1985].)
The NYPD argues in its brief that the Court should have
this argument has not been preserved for appellate review. This
dated March 23, 2010, by the DA, which is not the appellant in
34
NYPD cites the case of Caplin & Drysdale v. U.S., 491 U.S.
U.S. Currency, 982 F.2d 851, 856 (2d Cir. 1993) (quotation marks
omitted).
104 (2d Cir. 1989), the Second Circuit refused to follow Caplin &
property.
35
In Caplin & Drysdale, supra @ 627, the federal statute
14-140 or any of the New York State or New York City forfeiture
the NYPD.
Court below, and Louis Posner agreed in his plea that all fees
forfeiture.
36
federal civil forfeiture proceedings commenced on or after August
Since the commencement of the criminal case in July 2008 and the
N.Y.2d at 221.
37
If all of a defendant’s assets are seized in connection with
matter thereto…”
1995, at 29, col. 1 (Sup. Ct., N.Y. Co. 1995) (Court signed
38
“numerous orders releasing funds for the continuation of the
business and the personal use of the officers.”) The movant must
expenses.”
the money.
39
Article 13-A are “available in an action for criminal forfeiture
III. THE COURT BELOW DID NOT ABUSE ITS DISCRETION IN ISSUING
ORDERS TO RELEASE FUNDS FOR REASONABLE ATTORNEYS’ FEES, EXPERTS’
FEES AND LIVING EXPENSES
The Court below did not abuse its discretion issuing orders
40
146], and District Attorney, New York County v. Efargan, 12
this argument has not been preserved for appellate review. These
Letter, dated March 23, 2010, by the DA, which is not the
that People should not benefit from ill-gotten gains and that one
41
This article contains quotes from counsel for both
sides in the Efargen case. The prosecutor, predictably,
claimed that it was a “huge case in the area of asset
forfeiture,” asserting that it stands for the
proposition that no defendant can secure the release of
funds to pay living and legal expenses without proof
that the funds are legitimate. Counsel for the defense
countered that nothing in the relevant law supports
such a reading of the statute. The author of the
article, understandably confused by the conflicting
views, sought the opinion of a former federal
prosecutor and now a partner at Steptoe and Johnson,
who provided a more dispassionate perspective in line
with the view of this Treatise. “As I interpret this
Court’s ruling, had these defendants been able to
demonstrate that these funds were legitimately derived,
that certainly would have been an important factor in
persuading the Court to unfreeze the money to pay for
legal fees.” The attorney cautioned, however, that one
should “not read this opinion as necessarily requiring
such a showing in every case,” and opined that he did
not “believe the judge intended to read such an element
into the statute.” As we also noted above, the attorney
pointed out the fact that “the Court previously
released about $58,000 to the various criminal
defendants to be used to pay for living expenses and
legal fees, apparently without requiring any proof that
the money was clean.”
to determine whether the assets held by the DA and the NYPD were
York State that the defendant must prove that seized funds are
living expenses.
N.Y.S.2d 346 (Sup. Ct. New York County June 2, 2004), found that “the
42
criminal action poses a serious threat to the liberty interests of the
action.”
and experts’ fees that were unreasonable in the rates charged and
43
Ct. N.Y. Co. 1992), appeal withdrawn, 198 A.D.2d 923, 603
argument:
(BR47). The Posners’ case was before the State Supreme Court,
Criminal Part, from July 17, 2008 through April 22, 2010, and
Court that the NYPD refused to comply with the Court Orders for
44
which was provided for by C.P.L.R. § 1312[4]. Fogelnest advised
the Court below that “Mr. Posner has entered into an agreement
with the Civil Court to pay his rent arrears in lieu of his
argued for affirming the Court Orders for living expenses to the
Posners:
papers were submitted, and oral argument was held before the
Court below where the People had a full and fair opportunity to
45
payments, the Court below authorized the living expenses based on
his wife $40,000 per month, and his son, also a defendant, a bi-
a sum certain, and there was no basis for the NYPD to object to
the residual January 2010, the February 2010 and March 2010 Court
Neither the DA nor the NYPD ever appealed the prior Decision
(A22). Moreover, the NYPD has not appealed any of the individual
dated March 25, 2010, from the DA, which raises new allegations
46
were not in the NYPD’s moving papers (A67-A119), and accordingly,
(B35, A83-A92). The NYPD argues that all of the claims for
the authority of the Court below. The Decision and Order found
Property Clerk for misdemeanor cases in the New York City Criminal
for DWI and for cash confiscated from persons at the time of their
47
arrests for narcotics offenses.
[C.P.L.R. § 1312(4)].
At the hearing before Judge Obus on March 25, 2010, Bondy argued
that:
all of the forfeitable assets for its own benefit; whereas, under
must comply with C.P.L. § 220.50(6) which provides that any forfeited
48
Thus, the NYPD has sought to subvert the CPL requirement that
New York State and New York City, and instead, seek that all of
A.D.2d 312, 478 N.Y.S.2d 906 (1st Dep't 1984); Property Clerk of
New York City Police Dept. v. Ferris, 77 N.Y.2d 428, 568 N.Y.S.2d
Corbett, 116 Misc.2d 1097, 457 N.Y.S. 175 (Sup. Ct., N.Y. Co.,
Spec. Term 1982); Property Clerk, New York City Police Dept. v.
BMW Financial, 293 A.D.2d 378, 740 N.Y.S.2d 608 (1st Dept. 2002);
Misc.3d 1088(A), 819 N.Y.S.2d 851 (Sup. Ct., N.Y. Co. 2006); Clay
Property Clerk, New York City Police Dept. v. Batista, 111 A.D.2d
135, 489 N.Y.S.2d 739 (1st Dep't 1985); Property Clerk, New York
49
City Police Dept. v. Conca, 148 A.D.2d 301, 538 N.Y.S.2d 268 (1st
Dept. 1989).
The NYPD further argued that the DA’s waiver of its rights
to insist upon forfeiture does not bind the Property Clerk, which
The NYPD relies upon the cases of Property Clerk, New York
New York City Police Dept. v. Deans Overseas Shippers, Inc., 275
AD2d 204 (1st Dep’t. 2000); Property Clerk, New York City Police
Dept. v. Lanzetta, 157 AD2d 600 (1st Dep’t 1990); Property Clerk,
New York City Police Dept. v. Batista, 111 AD2d 135 (1st Dep’t
criminal case in State Supreme Court where the monies were being
SANCTIONS:
Posners.
Court Orders, dated February 18, 2010, March 9, 2010, and April
13, 2010. Notices of appeal have been filed only for the Court
Orders dated April 13, 2010. (A2-A20). The Court below denied the
51
preliminary injunction (A25). The NYPD has failed to make a
objecting to the use of the seized funds for attorneys’ fees and
A128). The Court below, in its Decision and Order, rebuked the
(A25) By pursuing this appeal, the NYPD has continued its willful
Orders of the Court below. Because this appeal was brought by the
52
criminal defendants and their retained professionals, monetary
in this appeal.
New York City Police Dept. v. Hurd, 130 Misc.2d 358, 364, 496
N.Y.S.2d 197, 201 (Sup. Ct. N.Y. Co. 1985), the fact that:
53
On October 1, 2009, the Court below heard the Posners’
argued that:
12
New York Lawyer’s Code of Professional Responsibility, Disciplinary Rule, DR
2-110(A), an attorney may not withdraw from employment in a pending case
without the permission of the Court.
13
Abandonment of a client may be grounds for attorney disbarment. In re
Lordan, 217 A.D. 441, 217 N.Y.S. 237 (1st Dept. 1926).
54
Upon information and belief, the Court below ordered Louis
On March 23, 2010, just one week before trial, Louis Posner
was served with new criminal charges for his filing a complaint
with NYPD IAB against NYPD Vice. After having been released from
55
NYC Police – Internal Affairs
Complaint No. 08-57647, filed 12/19/08
Anonymous Number: 08-245
Vice Enforcement – Manhattan, NYC
$10,000 bribe, plus $8,000 monthly
May or June 2008
late evening, about Midnight
Lieutenant (white) and detective (black)
Raid Vice 7/17/2008
---------------------------------------------------
56
(i) one count of filing a false police report with NYPD IAB
NYPD IAB alleging that there was a widely circulated rumor that
(A170-A171).
15
In some other jurisdictions, the crime of filing of a false report against
the police has been held to be unconstitutional as a violation of the First
Amendment or discriminatory prosecution against public policy. See
Pena v. Municipal Court, 96 Cal.App.3d 77 (Ct. of Appeals, 5th Dist., Cal.
1979) (Defendant’s conviction for filing a false complaint against the police
was dismissed on the grounds of a discriminatory prosecution. Legislature did
not intend a citizen’s complaint to a law enforcement entity concerning the
conduct of that entity or its officers to be a criminal offense, as statute
mandating that law enforcement agencies establish a procedure to investigate
citizen’s complaints against their officers, indicated its desire that such
complaints are to be encouraged.);
Hamilton v. City of San Bernardino, 325 F.Supp.2d 1087 (Dist. Ct., C.D. Cal.,
East. Div., 2004) (California statute making it a misdemeanor for a person to
knowingly file false misconduct allegations against a police officer was
facially unconstitutional as a violation of the First Amendment and the Equal
Protection Clause of the Fourteenth Amendment) ;
State v. Crawley, 789 N.W.2d 899 (Minn. Ct. Appeals Sept. 28, 2010) (Minnesota
statute that criminalizes knowingly communicating false information regarding
police only when that communication alleges misconduct violates the First
Amendment’s prohibition against viewpoint discrimination.)
57
Sentence and Dismissal With Prejudice of the Indictment
[C.P.L. §§ 210.20[1][h] and 210.40(1)]
People v. Pantino, 106 A.D.2d 412, 482 N.Y.S.2d 334 (2nd Dep’t
58
police of photographs taken during restaurant robbery by a
the Decision and Order both cited the case of People v. Martinez,
151 Misc.2d 641, 648-50 (Sup. Ct. N.Y. Co. 1991)(A29, A123-A124),
16
This Court should take judicial notice that co-defendants Cassandra
Malandri (“Malandri”) and Falynn Rodriguez (“Rodriguez”), who were arrested at
the HLD Club on July 17, 2008, turned down a plea offer and went to trial in
Manhattan Criminal Court. See People v. Falynn Rodriguez, Index No.
2008NY053105 (Crim. Ct., N.Y. Co. 2010). At trial, “there appear[ed] to be no
tape-recorded conversations between the undercover police officers and
defendant Louis Posner’s employees.”(A57). On January 22, 2010, Judge ShawnDya
Simpson, dismissed the prostitution charge against Rodriguez; and on January
26, 2010, found Malandri “not guilty” and acquitted her of the prostitution
charge.
Rodriguez is now suing the City of New York for false arrest and malicious
prosecution. See Fallyn[sic] Rodriguez v. The City of New York, Index No.
11100821 (Sup. Ct., N.Y. Co. 2011). Plaintiff, who had no prior criminal
record, alleged in her suit that the DA acted improperly by forcing Rodriguez
into a trial because she would not testify against Louis Posner.
17
This Court should also take judicial notice that a gay Manhattan resident
is suing NYPD Vice in federal court for false arrest for prostitution,
malicious prosecution, excessive force and unreasonable detention. Pinter v.
City of New York, 710 F.Supp.2d 408, 436 (SDNY Sept. 13, 2010)(District Court
found that if plaintiff's allegation are true, "these circumstances not only
reek of entrapment; they are unsettling and inappropriate."); see also,
Crosby v. City of New York, 269 F.R.D. 267 (SDNY June 22, 2010) (Arrestees
brought federal civil rights action against city, alleging that city was
liable for unconstitutional policy or practice of falsely arresting men
perceived to be gay on charges of prostitution to support nuisance abatement
lawsuits to close businesses viewed by city as undesirable.)
59
NYPD was put on sufficient notice that sanctionable conduct may
stated that:
541 F.3d 130 (2d Cir. 2009), found that: (i.) Prosecutors became
than simply that the state cannot prevent the accused from
60
dilutes the protection afforded by the right to counsel. (iv.)
counsel.
61
Thus, the misconduct of NYPD may be considered in dismissing an
indictment.
expenses and lacks the money for bail on new charges brought by
the NYPD IAB against the NYPD Vice; (iii) Louis Posner’s
attorneys could not be paid fees for the new criminal charges
C.P.L. § 210.40[1].
62
CONCLUSION:
Respectfully submitted,
_____________________________
JONATHAN S. GOULD, ESQ.
Attorney for Defendants-Respondents,
Louis Posner and Betty Posner
603 West 115th Street, Suite 198
New York, New York 10025
(212) 531-4852
jgould@nyc.rr.com
63
PRINTING SPECIFICATIONS STATEMENT
Respectfully submitted,
_____________________________
JONATHAN S. GOULD, ESQ.
Attorney for Defendants-Respondents,
Louis Posner and Betty Posner
603 West 115th Street, Suite 198
New York, New York 10025
(212) 531-4852
jgould@nyc.rr.com
64