Professional Documents
Culture Documents
Roger J. Bernstein
New York County Clerk’s Indictment No. 3982/08
MICHAEL KESSLER,
Third-Party Respondent-Respondent.
Preliminary Statement . . . . . . . . . . . . . . . . . . . . . 1
Questions Presented . . . . . . . . . . . . . . . . . . . . . . 2
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
POINT I:
POINT II:
POINT III:
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 21
-i-
Table of Authorities
Page:
Cases:
Boyle v. Kelly,
42 N.Y.2d 88 (1977) . . . . . . . . . . . . . . . . . . 15
Croker v. Williamson,
208 N.Y. 480 (1913) . . . . . . . . . . . . . . . . . . 18
Hofferman v. Simmons,
290 N.Y. 449 (1943) . . . . . . . . . . . . . . . . . . 16
In re Application of Director of
Assigned Counsel Plan of City of New York,
207 A.D.2d 307 (1st Dep’t 1994),
aff’d, 87 N.Y.2d 191 (1995) . . . . . . . . . . . . . . . 7
-ii-
Michalowski v. Ey,
4 N.Y.2d 277 (1958) . . . . . . . . . . . . . . . . . . 16
People v. Efargan,
2006 NY Slip Op. 514462U,
12 Misc.3d 1186A (Sup. Ct. N.Y. Cty. 2005) . . . . . . . 13
People v. Martinez,
151 Misc.2d 641 (Sup. Ct. N.Y. Cty. 1991) . . . . . . . 13
People v. Salzone,
98 Misc. 2d 131 (Crim. Ct. Kings Cty. 1978) . . . . . . 15
Stuhler v. State,
127 Misc. 2d 390 (Sup. Ct. N.Y. Cty.),
aff'd mem., 493 N.Y.S.2d 70 (1st Dept. 1985) . . . . . . 12
Statutes:
CPL 690.55 . . . . . . . . . . . . . . . . . . . . . . . . . 10
CPL 690.55[1](b) . . . . . . . . . . . . . . . . . . . . . . . 3
-iii-
Preliminary Statement
were to be paid out of funds which had been seized from the
seized funds, which had been divided into two roughly equal
Attorney (the “District Attorney”) and the New York City Police
1
Page references preceded by "A" are to “Appellant’s
Appendix” submitted by the NYPD.
1
with a semblance of legality the NYPD appealed to this Court from
Questions Presented
the NYPD, are each custodians of portions of the same funds, and
2
the District Attorney, but not the NYPD, appeared in the lower
the affirmative.
Statement of Facts
Kessler’s claim for payment. In July 2008, the New York County
safe deposit boxes, bank accounts and cash totaling $551,000 were
Attorney and the NYPD. A58; A73. The sole ground for these
2
Page references preceded by "SA" refer to the
“Supplemental Appendix of Intervenors Bondy et al. and
Michael Kessler” submitted by respondents-intervenors
Kessler and Bondy on April 20, 2011.
3
agencies’ retaining custody of the funds was that they were
told the Court that “the funds were seized as evidence pursuant
requested that sums be withdrawn from the funds to pay for their
the attorneys for defendant Louis Posner, who sought to hire him
the funds under the Court’s control once his services were
4
performed and his bills were submitted to, and reviewed by, the
Court:
5
orders on February 18 and April 13, 2010 approving payment to
case. A82; A20. The payment orders were directed at the NYPD
The NYPD then appealed to this Court, thus staying the operation
ly more than a year has passed since Kessler submitted his bills
3
As regards Kessler the show-cause application was
initially directed only to the February 18, 2010,
payment order. At the NYPD’s request, Justice Obus’s
April 13, 2010 decision also related to Kessler’s
subsequent bill for further services performed through
March 11, 2010. A27; A20.
6
ARGUMENT
POINT I
issues dealt with herein are civil in nature. They relate solely
the CPLR.
expert for his services. The orders were entered by the Supreme
to hold that the court’s orders were not reviewable because they
Assigned Counsel Plan of City of New York, 207 A.D.2d 307 (1st
7
approved this disposition because the only matter at issue was
8
sought were both civil. The October 1, 2009 hearing establishing
his right to submit bills for payment, and the later orders
was totally outside the scope of the charges against Posner, but
also because Posner had already pled guilty by the time Justice
Obus’s decision was rendered. (A27). The orders for payment were
POINT II
9
Obus ordered that Kessler be paid from the seized funds, which
were then under his jurisdiction. The NYPD Property Clerk had
CPL 690.55.
Under this statute the seized funds are under the jurisdiction of
the Supreme Court. The NYPD Property Clerk, like the District
10
Attorney, holds the funds solely as a custodial agent of the
follows:
Misc.2d 897, 898-99 (Sup. Ct. N.Y. Cty. 1984) (internal citations
11
authority. It argues that the property at issue consisted of
Stuhler v. State, 127 Misc. 2d 390, 393-94 (Sup. Ct. N.Y. Cty.),
4
“NYPD Brf.” means “Appellant’s Brief” submitted on or
about January 31, 2011.
12
York State Supreme Court’s power to dispose of money seized
from those funds for defense costs, it is pointless for the NYPD
to argue that the facts here are different from those in People
140. If the NYPD could have enforced such a right it should have
13
authorization for Kessler to perform services in Posner’s
his work.
exercise equity powers in this case. The NYPD hints that this
14
matter did not fall within the Supreme Court’s equity
different court – the New York City Criminal Court. Those cases
are Property Clerk, New York City Police Dept. v. Deans Overseas
Shippers, Inc., 275 A.D.2d 204 (1st Dept. 2000), and People v.
This decision held that a person whose own property was seized
15
she could commence a replevin action.
Credit Data of Hudson Valley, Inc., 166 A.D.2d 768 (3d Dept.
16
court’s power over the seized funds. It was not an example of
POINT III
at which they were issued. It was shown above that the NYPD was
the submissions from the NYPD on this appeal, and from all
Obus for his approval. The Supreme Court thus acted properly in
17
were in the identical position as regards the payment orders, and
would have made the same arguments if they had both appeared,
The failure to serve process on one party did not bar the court
absent party would likely have made the same arguments as the
(1913), the Court dealt with a situation where not all the
legatees of a will had been served. It held that the case could
18
In dealing with multiple governmental agencies the
parties would make the same arguments as those that are present.
who are present. For that reason, in Awad v. State Educ. Dept.
of New York, 240 A.D.2d 923, 925 (3d Dept. 1997), a teacher was
though the local school board, which was likely to make the same
could not be sued in State court, but the Court permitted the
19
suggestion is made that the Tribe's lawyers
would be likely to make a more persuasive
argument on these issues than the ones that
will be made by defendants if the actions are
permitted to continue.
New York, 302 A.D.2d 155, 162 (1st Dept. 2002), this Court
and absent parties were not fully identical, they did largely
opposed any payment to Kessler. Can the NYPD honestly state that
20
Conclusion
21
Certification of Compliance With Word Limit
___s/_____________________
Roger J. Bernstein, Esq.
22