People v. Bove, 156 Misc. 2d 469, 593 N.Y.S.2d 736 (1992) N.Y. Misc. LEXIS 608, December 1, 1992, Decided. New York Law Journal, December 28, 1992 at 1 and 29, col. 1. Zoning case, restrictions on commercial vehicle parking are upheld. See, The Columbian a publication of the Columbian Lawyers' Association of Nassau County, June, 1993, Vol. 4, Issue 7, Liotti Decision Published, Past President Thomas F. Liotti Maintains a Law Practice in Garden City. He is also Village Justice of the Incorporated Village of Westbury.

People v. Thompson, 157 Misc.2d 233; 596 N.Y.S.2d 330 (1993) N.Y. Misc. LEXIS 105, February 22, 1993, Decided, New York Law Journal, March 16, 1993 at 1 and 25. Village Parking Officer must have local authority to issue ticket for violation of State Vehicle and Traffic Law. Case dismissed.

People v. Fox, 157 Misc.2d 238, 596 N.Y.S.2d 984 (1993) N.Y. Misc. LEXIS 104, February 22, 1993, Decided. New York Law Journal, March 9, 1993 at 2 and 25. See also, McKinney's Consolidated Laws of New York Annotated, Book 62A, Carrieri, Joseph R., Supplementary Practice Commentaries where the Fox case is referred to in detail. In Fox, a speeding offense was dismissed due to the fact that a posted sign was obliterated by foliage. A prosecutor was collaterally estopped from denying his earlier dismissal of similar offenses on other cases for the same reasons. See Kohn, Al, Collateral Estoppel Defeats Prosecution for Speeding, New York Law Journal, March 9, 1993 at 2. Also cited at Restatement of the Law of Judgments 2d, American Law Institute, Judgments § 27 - Issue Preclusion (erroneously cited as § 28, T.D. No. 4. This section was § 68 in T.D. No. 4).

People v. Villataro, 158 Misc.2d 557, 601 N.Y.S.2d 410 (1993) N.Y. Misc. LEXIS 328, June 29, 1993, Decided. See also, Kropa, Kim, "Judge: Law Is Guilty, Rule On Alcohol Possession Unconstitutional," Newsday, August 4, 1993 at 31. Village's open container law declared unconstitutional.

People v. Pitts, New York Law Journal, 8/12/94 at 1, 21, 26, 27 & 28. Case dismissed and right to beg upheld in lengthy decision. McCue, Danny, Judge Sees Case As Wake Up Call, The Westbury Times at 3 and 19.

People v. Al Munin A. Jabaar, 163 Misc.2d 1045; 623 N.Y.S. 2d 500; 1994 N.Y. Misc. LEXIS 643, November 1, 1994, Decided. Defendants, charged with violating the Village's "taxicab law" by operating a taxi without a license, moved to dismiss. They argued that the law violated the Interstate Commerce Clause, as it regulated without regard to destination, and was being selectively enforced. The Court found no proof the summonses were given anywhere other than in the Village and said the law was a valid exercise of police powers. See, New York Law Journal, 12/16/94 at 1, 25 and 36, col. 3.

People v. Joseph Vancol, 166 Misc.2d 93, 631 N.Y.S.2d 996 (1995) N.Y. Misc. LEXIS 423, July 19, 1995, Decided. Speedy trial statute applies to zoning violations. See, New York Law Journal Aug. 8, 1995 at 1 and 26, col. 4.

People v. Red Robin Country Day School, Village of Westbury, New York Law Journal, January 31, 1996 at 1, 25 and 29, col. 4. Motion to dismiss granted in part and dismissed in part and Appellate Term, 9th and 10th Judicial Districts, Justices Stark, Collins and Ingrassia. Affirmed. See, New York Law Journal, Tuesday, February 4, 1997 at 28. A school (summer day camp) operating in a residential community was issued tickets for allegedly having buses parked on its property and for keeping a pony. It moved to dismiss, saying that the buses were not "commercial vehicles" under the Village Codes and that the school had kept a pony for 37 years. The Court held that the pony was a legal prior non-conforming use but a trial was needed on the issue of classification of the vehicles. See also, Newsday, February 1, 1996 at A6, Ponies Allowed, Horsepower Issue Undecided; The Westbury Times February 9, 1996 at 1, Liotti Throws Out Summonses; McCue, Danny, Liotti Decision Hailed, Decried, The Westbury Times, March 28, 1996 at 1 and 15 - Judge Liotti dismissed all tickets and McCue, Daniel J., Village Has To Defend Multimillion $$ Lawsuit, The Westbury Times, Thursday, July 11, 1996 at 51.

People v. Suppa, October 8, 1997, New York Law Journal at 1, 25 and 28. In Brief, Decisions of Interest. In this case, the defendant rented out his single-family home and lived elsewhere, but used the garage to store his commercial landscaping vehicles. The Court denied a motion to dismiss charges brought under the Zoning Code. Noting the increasing problem of single-family homes being used for businesses and the illegal housing of multiple tenants, the Court discussed the deleterious effect that this has on residential communities. It made various recommendations to help solve the problem including, but not limited to, establishment of a Task Force on housing. The decision was translated into Italian, Spanish and French. Other suggestions included a change in the law requiring landlords to have written leases that should be recorded and for charities and social service agencies to be required to file environmental impact statements before placements occur. See Miller, A. Anthony, Zoning Case Spawns A Social Commentary, The Attorney of Nassau County, September, 1997 at 3.

People v. Tran, New York Law Journal, October 7, 1998 at 1, 25 and 29, col. 6 and Summaries of Selected Unpublished Opinions, Evidence, March, 1999 at 56. See QDS:04700322. Defendants were charged with renting out the basement in their single-family home. Prosecution argued that hearsay evidence should be admissible because the proffered testimony concerned an alleged conversation between a building inspector and tenant during an investigation. It also argued that the hearsay should be allowed because the case involved building code violations, not crimes. The Court disagreed and said that prosecution should have subpoenaed the tenant. It dismissed the charges for failure of proof.

People v. T&C Design Inc. and Carmela Cardoza, 178 Misc. 2d 971, 680 N.Y.S. 2d 832 (1998) N.Y. Misc. LEXIS 555, September 9, 1998, Decided, September 9, 1998, Entered, 1988 N.Y. Slip Op. 98641, 1998 WL 828233. See New York Law Journal, September 24, 1998 at 1, 21 and 28, col. 5. In Brief, Decisions of Interest, Judge Refers Issues of Recusal to Another Judge for Determination. "Defendants were charged with illegally conducting a business in a basement. When pro se individual defendant appeared in court, she mentioned that her husband had been the Judge's opponent in the 1991 election for Village Justice. The Court, sua sponte, raised the issue of recusal and determined that this was not a case of mandatory recusal. It decided that the question of discretionary recusal should be referred to a fellow Village Justice in the interest of fairness." See also, Miller, A. Anthony, Should Judges Decide Own Recusal Motions?, The Attorney of Nassau County, October, 1998 at 18. See also affirmation of John Walshe, Esq. at www.MQNYC.com in Academic Health Professionals v. M.Q. of New York (New York County Supreme Court, Index No. 605452/01.

People v. Daniel Louis, New York Law Journal, March 15, 1999 at 1, 25 and 33. Case of first impression where the Court determined that Village Courts have a constitutional obligation to assign counsel to indigent defendants where there is a mere possibility of jail. See Miller, Anthony, Village Court Ruling: Assigned Counsel Ordered For Zoning Violation Defendant, The Attorney of Nassau County, March, 1999 at 6 and Fasano, H. Raymond, Feature Article, People v. Daniel Louis: Right To Counsel In Village Justice Court, Mouthpiece (a publication of the New York State Association of Criminal Defense Lawyers) Vol. 12, No. 3, May/June, 1999 at 25.

People v. Jose Hernandez, Sylvia Bonilla and Elevina Lopez, In Brief, Decisions of Interest, New York Law Journal, August 3, 1999 at 1, 21 and 25. QDS:04701391. Court Orders Certified Interpreters Provided To Avoid Appearance of Impropriety. Defendants, charged with violations of certain village building ordinances, appeared pro se. They did not speak English, and the Village Building Inspector who was their adversary was compelled to act as their translator because a court certified interpreter was not available. The Court found that reliance on the Building Inspector created an appearance of impropriety and conflict. It stated that it was important to demonstrate the ability to translate the response of defendants, word for word, and noted that a court certified interpreter would have taken the constitutional oath of office requiring the interpreter to translate fully, truthfully and accurately. The Court citing its discretion to appoint interpreters, ordered the Clerk to provide one at each court session for at least three of the primary romance languages. See, Miller, A. Anthony, Judge: Interpreters at Each Court Session, The Attorney of Nassau County, August, 1999 at 6.

People v. Clifton Reid, Decisions of Interest, New York Law Journal, August 5, 1999 at 1, 25 and 32. QDS:04701396. Nassau Motor Vehicles, Village Court's Form Is Unconstitutional As Given To Drivers Receiving Tickets. Pro se defendant was charged with three Vehicle and Traffic Law violations. He apparently lost his copies of the tickets. When he reported the loss, the Village's Court Clerk's Office gave him a form to fill out. The form asked the defendant if he had pleaded not guilty, to give a brief explanation as to why he pleaded not guilty. It also asked if the defendant had requested a supporting deposition. The Court ruled that the form was unlawful and deprived defendants of their constitutional rights. Any statements derived from it were suppressed. The Court said in part that the prosecution has the burden of proof, not the defendant, and the defendant need not inform the Court or the prosecution of his defense theory. It also noted that no Miranda warnings were supplied and the form allowed for comments that could be used against the accused later. See, Miller, A. Anthony, Court Knocks Out Court-Issued Forms, The Attorney of Nassau County, August, 1999 at 3.

People v. Michael Shumake, Village Justice Court of Incorporated Village of Westbury, Village Justice Liotti. QDS 76601750. Nassau, Motor Vehicles. Jail Sentence of 15 Days is Imposed on Driver for Unlicensed Operation of Motor Vehicle. Defendant pleaded guilty to unlicensed operation of a motor vehicle, a violation of VTL § 509(1). The Court, besides fining defendant, sentenced him to 15 days in prison, the maximum allowable by law. It noted that defendant had offered no mitigating evidence and had a "lengthy and abysmal" record of driving without a license and not paying fines. The prior record clearly demonstrated defendant's disregard of the law, the Court said. While prior courts have given defendant the maximum fine, none had ever jailed him. The instant Court felt that imposition of a jail sentence was necessary. However, the Court discussed the dangerousness, "shocking conditions" and "brutal atmosphere" at the Nassau County Correctional Center and said that it hesitated to sentence anyone to prison there. See, the Attorney of Nassau County, Defendant Jailed For "Abysmal" Driving Record, November, 1999 at 3 and 13.

People v. Woodard, (1st Decision) 188 Misc.2d 7 (2002) and reported in the New York Law Journal, May 3, 2001 at 1, 17, 24 & 25. Guilty Plea to Traffic Violations Is Vacated, Defendant Was Not Informed of Civil Penalties. Cited in People v. Forbes, 191 Misc.2d 573 (2002 City Court of the City of White Plains, County of Westchester).

People v. Woodard, (decision #2) 188 Misc.2d 7, 727 N.Y.S.2d 575 and published on line under a pilot program recently approved by the Court of Appeals, in the New York Slip Opinion Service (www.courts.state.ny.us/reporter/decisions.htm) July, 2001. 2001 N.Y. Slip Op. 40080(U) and 2001 WL 914291. Justice Liotti ordered a People v Clayton, 41 A.D.2d 204, 342 N.Y.S.2d 106 (2d Dept, 1973) hearing to determine whether the case should be dismissed in the interests of justice.

People v. Victoria Lester, Decisions of Interest, New York Law Journal, May 31, 2002 at 1, 17 and 22. Ex parte communications are disallowed.

People v. Ari Seigler, Decisions of Interest, New York Law Journal, June 6, 2002 at 1, 17 and 26. A summons charging a recreational vehicle ordinance violation was held to be facially sufficient. The Court provided an analysis of the constitutionality of local laws and the public policy behind the local law, namely, to preserve the residential character of the community. See www.courts.state.ny.us/reporter/decisions.htm and New York Official Reports file (NY-ORCSU). See also, (2d Decision) in Decisions of Interest, Significant Rulings Summarized, Land Use and Planning, New York Law Journal, Long Island Edition, October 15, 2002 at LI-6 and New York Law Journal, Court Finds Law Prohibiting Large Mobile Home On Residential Property Is Not Unconstitutional, October 23, 2002 at 1, 17 and 27.

People v. Jaime Perez, et al., Decisions of Interest, New York Law Journal, October 18, 2002 at 1, 17 and 23. Police Officer’s Retirement Is Not Exculpatory Evidence in Simplified Traffic Information Actions. A retired police officer was a signatory and a necessary witness to simplified traffic informations involving the defendants. The prosecution indicated that the officer lived locally and was available to testify and provide supporting depositions. The court inquired into whether the prosecution was obligated, under Brady v. Maryland, to disclose that the officer had retired. It noted that the officer’s retirement, if known to the defendants, night influence some of them to seek better plea bargains or go to trial. The prosecution argued that the police officer’s retirement was not exculpatory since the tickets were valid when they had been issued and because the officer is available as a witness. The court held that the officer’s retirement was not exculpatory per so. However, the court concluded that if the officer was unavailable to testify, it and the prosecution had a duty to disclose the officer’s retirement to all defendants who have cases with that particular officer. Also Opinion appears in the State Reporter, Advance Sheet No. 302, dated December 18, 2002.

People v. Dennis Barnes, Decisions of Interest, New York Law Journal, October 21, 2002 at 1, 17 and 27, col. 3, Speedy Trial Dismissal Is Denied in Case That Was Adjourned Due to Witness’ Unavailability. The Court had previously held, in People v. Vancol, that the 30-day speedy trial rule applied to zoning violations. The prosecution was not ready for trial because the building inspector for the case was unable to appear due to an illness and the chief building inspector was absent without an excuse on the scheduled trial date. Because the 30-day speedy trial period chargeable to the prosecution had not expired, the court denied the defendant’s dismissal motion. The court granted the prosecution’s adjournment motion and charged it with six days of speedy trial time, subject to the prosecution’s provision of a letter from the building inspector’s physician or some other comparable source as to the reason for his unavailability at the last court date. The court, citing People v. Eric Kelly, observed that the Appellate Division, Third Department, citing People v. Brown, had determined that it was an abuse of the court’s discretion not to grant an adjournment request.

People v. Anthony Bulzomi, Decisions of Interest, New York Law Journal, March 18, 2003 at 1, 17 and 21. Despite Defendant’s False Trial Testimony, Court Declines Perjury Referral to District Attorney. The pro se defendant was charged with violating a town zoning code provision by keeping a commercial vehicle at his home. At a bench trial, he testified that, while helping to clean his father’s garage, he had removed the landscaping and spraying equipment that had twice been observed in the back of an open pick-up truck on his property. He also testified that the truck was a passenger vehicle registered in his wife’s name. His testimony was contradicted by that of a building inspector and a clerk of the court who had retrieved information from the Department of Motor Vehicles that indicated that the pick-up truck was registered to defendant. Finding defendant guilty, the court determined that he had falsely testified to material facts. Noting however that a perjury charge was not before the court, nor that it held a legal basis to enhance defendant’s sentence due to false testimony, the court declined to refer the matter to the district attorney because the court had not made any finding of perjury.

People v. Charles and Nelda McKie, Decisions of Interest, New York Law Journal, May 13, 2003 at 1, 17 & 20, Village Ordinance’s Ban on Pit Bull Dogs Is Struck Down as Unconstitutional. A village ordinance banned the harboring of “vicious or dangerous animals” including but not limited to pit bull dogs. Defendants were charged with harboring a pit bull in violation of the law. Claiming that the dog was not a pit bull but rather a separately recognized breed of terrier, defendants argued that the ordinance violated Agriculture and Markets Law §107(5), which provides that a municipality’s dangerous dog control program “shall [not] regulate such dogs in a manner that is specific as to breed.” Village board minutes were not informative as to the reason for the ordinance’s enactment or why pit bulls were singled out as a prohibited breed. The court struck down that part of the ordinance banning pit bulls as unconstitutional. In addition to ruling that the pit bull ban violated AML §107(5), the court ruled that the ordinance constituted an unconstitutional deprivation of property without due process of law. See, also Long Island News Brief at 16 in the New York Law Journal. See also, Ed Lowe, A Case of Dog Discrimination, Newsday, May 9, 2003 at A8.

People v. Randall Lord, Decisions of Interest, New York Law Journal, May 23, 2003 at 1, 17 & 23, Village Noise Ordinance Is Unconstitutional Because It Cannot Be Uniformly Enforced. Defendant was charged with violating a village noise ordinance after adjoining landowners complained about music played through an amplifier. He sought dismissal on the ground that the ordinance was unduly vague. He did not contend that the ordinance limited his freedom of expression. The court granted dismissal, declaring the ordinance to be an unconstitutional violation of the First, Fourth and Fifth Amendments of the United States Constitution. The applicable section of the noise ordinance must be read with a section defining a “noise disturbance.” The court ruled that it could not determine what a “noise disturbance” was under the ordinance because the ordinance refers to undefined “reasonable persons of normal auditory sensitivities.” The court found the ordinance susceptible to subjective enforcement and ruled that it was not a constitutionally valid exercise of regulatory or police powers because it was not amenable to uniform enforcement and equal protection. Reprinted in its entirety in the September, 2003 edition of The Magistrate, a publication and magazine of the New York State Magistrate’s Association at 17-19. Reversed on appeal by Appellate Term, P.J. Edward McCabe and Tannenbaum. Judge Covello took no part in the decision).

People v. Patricia Howlett, Decisions of Interest, New York Law Journal, May 30, 2003 at 1, 17 & 23, Court Dismisses Appearance Ticket Issued for Accumulating Debris in Violation of Zoning Code. Defendant was issued an appearance ticket for accumulating debris in violation of the village zoning code. She sought dismissal of the ticket arguing, among other things, that: the named defendant does not have a correct title; the defendant entity was not a natural person; the owner of the property has two legal guardians; and that, pursuant to 14 New York Codes, Rules and Regulations §22.2, an action could not be initiated against an incapacitated person absent a court order. In partial agreement with defendant’s position, the court dismissed the ticket without prejudice. The court construed the service of the appearance ticket - made outside the county upon a purported guardian of the actual property owner - to have been proper under Criminal Procedure Law Article 150. However, citing People v. Rodriguez, the court held that there had been no showing that an accusatory instrument had been filed prior to the arraignment date as required by CPL Article 150 and CPL §100.05.

People v. Wilfred Dary, Decisions of Interest, New York Law Journal, June 24, 2003 at 1, 21 and 27, col. 6. Court Objects to Defense Counsel’s Demand for Inspection of Evidence in Zoning Violation Case. In an action alleging zoning code violations by a single-family home’s conversion into a two-family dwelling, defense counsel filed an omnibus motion seeking, among other things: inspection of evidence; copies of arrest and search warrants; an order compelling the prosecution to turn over Brady and Rosario materials; and an order under Criminal Procedure Law §30.30 dismissing the action on speedy trial grounds due to the prosecution’s failure to announce readiness for trial. The court denied defendant’s motion. The court emphasized that it does not preside over felonies and misdemeanors and that defendant had not been arrested. It also noted that the action’s simple issues had been complicated by the great amount of unnecessary paperwork that had been submitted. The court further noted that the village had modified its zoning laws in order to preserve the community’s residential character while accommodating a housing shortage, an aging population, a poor economy and an influx of immigrants. Also accepted for publication in Miscellaneous Reports, 2003 N.Y. Slip Op. 50939(U).

People v. Beauvil, The Magistrate, March - Spring, 2004, Vol. 44, No. 1 at 22 and 23. The defendant’s boilerplate motion is self-defeating in many respects. The affirmation is in most cases unsupported by appropriate factual averments and sworn allegations of facts. C.P.L. §710.60(1). Unfortunately, in this case the affirmation provided is unsworn and does not track or follow the relief applied for in the Notice of Motion. Instead, it is a “hodgepodge” of disjointed statements which are misplaced, premature, irrelevant and not supported by specific facts relating to this case. For example and remarkably, while the defendant has called for the production of any alleged statements by the defendant that the People intend to use at trial and the People have provided a notice of said statements, the defense has not asked for a People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965) hearing which this Court would be inclined to grant if properly requested. C.P.L. §710.30. See also Muldoon and Feuerstein, Practice Guide: Handling A Criminal Case In New York, Ch.7, Motion and Hearing Practice (West Group). The defendant has not informed the Court of whether she is contesting the time-lines of the People’s notice. See C.P.L. §710.30(3) and People v. O’Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498 (1987).
Similarly, while the defendant has made a vague assertion that he is entitled to a suppression of illegally obtained evidence, he does not inform the Court of what evidence she is seeking to suppress. A memorandum of law has not been provided. Rather, the defendant has thrown into the affirmation legal citations and references which should be placed into a memorandum of law.

People v. Ventura, (State Reporter Ref. No. QXK000666) (edited for publication); New York Law Journal, May 25, 2004 at 1, 17, 19 & 20. Evidence of Overcrowded, Illegal Two-Family Home Suppressed as Exceeding Search Warrant, A Village court issued a search warrant to determine whether a home was used as a two-family residence and contained an illegal cellar apartment in violation of the building code. The warrant, grounded on affidavits as to observations of the property’s exterior, was executed on an early morning. Photographs of the home’s interior indicated 25 occupants and that its cellar held three bedrooms. After a Mapp/Franks/Dunaway hearing, the court suppressed evidence as the product of an illegal search and seizure, finding that the search went beyond the scope of the warrant and that the evidence gathered exceeded the warrant’s permissible limits. The court ruled that it has jurisdiction and authority to issue search warrants of a residence where probable cause exists to believe that a building code violation is being committed, provided that the three-prong test of New York v. Burger is met and that the warrant is not overly broad. See Victoria A. Caruso, Village Court Rules Search Warrant Was Improper, Too Broad, The Westbury Times, May 27, 2004 at 1 and 30. Letter to the Editor by Peter I. Cavallaro, Questioning Court Decision Regarding Search Warrants, The Westbury Times, May 27, 2004 at 18, Victor Manuel Ramos, Our Towns, Was It Warranted In Westbury? A Raid On Code Violators, Village Overdid It With Early-Morning Search, Justice Rules, Newsday, Section G, Sunday, May 30, 2004 at G40 and G38; Liotti Was Too Lenient, The Westbury Times, June 3, 2004 at 18; Letter to the Editor, Letter to the Editor by Hon. Thomas F. Liotti, Dedicated To Residents, The Westbury Times, June 17, 2004 at 17 and 18 and Letter to the Editor, Thomas Sobczak, Jr., In Judge Liotti’s Defense, The Westbury Times, July 8, 2004 at 14. A portion of the letter read: “The people of Westbury Village should be proud to have such an accomplished and well-respected jurist as Thomas Liotti serving them. That he had the courage to choose the law over expediency when so many others choose the reverse is ample evidence of his worth.” See also newsday.com, Briefing, June 22, 2004, Westbury, the Central Westbury Civic Association will hold a forum tonight with Thomas F. Liotti, the Village Justice who blocked the execution of search warrants in cases of illegal housing. The 8 p.m. session is at the Westbury Community Center. See also, Emma Wright, News From the Central Westbury Civic Association, CWCA Bulletin, The Westbury Times, July 15, 2004 at 3. Article about Justice Liotti’s appearance before the Civic Association regarding the decision and search warrants. See also Scott E. Mollen, Realty Law Digest, Real Estate Update, New York Law Journal, July 21, 2004 at 5 and 9 and Thomas F. Liotti, Village Justice, Letter to the Editor, Defending His Decision, The Westbury Times, August 19, 2004 at 18 and 21. See also, Ain, Stewart, Rewriting the Rules on Home Searches, The New York Times, L.I. Section, June 13, 2004 at 2. See also, Scott E. Mollen, Realty Law Digest, New York Law Journal, April 13, 2005 where he reports on the Ventura decision. See also, People v. Alex Rodriguez, N.Y.L.J., July 5, 2005 at 1, 17 and 19. A decision by Village Justice Gianna Hasio of Massapequa Park discussing, at length, People v. Ventura.

People v. Ventura (#2) - 6 Misc. 3d 1001(A), 800 NYS2d 354 (2004), NY Slip Op 51695(u). (Just. Ct., Dec. 10, 2004, Liotti, J.) See Year in Review, Village Court Rules Search Warrant Was Improper, Too Broad, The Westbury Times, January 6, 2005 at 19. Also see New York Law Journal, February 1, 2005 at 1, 17, 19 and 20, Procedures Expedited in Illegal Occupancy Case; Pretrial Hearing Granted. In an illegal occupancy action, defendant offered to stipulate to pretrial hearings. The prosecution would not agree to this, compelling defendant to file a formal motion. The court explained the need to expedite cases involving illegal occupancy, which often created dangerous, uninhabitable living conditions that burdened municipal services and decreased property values. It further noted many defendants could not afford attorneys and counsel could not be assigned. Thus, it opined, any legal fees should not be wasted on costly motion practice. In an effort to simplify procedures, it held that as long as a defendant met the requirements of Criminal Procedure Law §710.60(1), it would grant a pretrial hearing, from which it would be able to render an immediate decision. Here, the parties agreed that there was a warrantless search, but disagreed as to whether there was consent. Finding issue of fact, the court ordered Dunaway and Mapp hearings. See New York Law Journal, February 1, 2005 at 19, col. 3. Pre-trial motions may be handwritten in order to reduce costs, legal fees and expedite decisions.

People v. Islamic Center of L.I., decision date July 26, 2006, Slip Opinion No. 2006NYSlipOp 51484(U). Defense motion is denied with prejudice and untimely under CPL § 255(2). See The Magistrate, Fall (2006), Decision on Motion at 20 & 21. The decision denied, with prejudice, the defendant’s request to file a motion out of time.

People v. Nery Martinez, Slip Opinion Number: 2006 NYSlipOp 52098. Decisions of Interest, New York Law Journal, November 24, 2006 at 1, 21, 23 and 24. Court Finds Defendant Need Not Allocute or Speak Words of Guilt in Violation Case; Plea Stands - Defendant moved to vacate a guilty plea to a building code violation arguing he only spoke Spanish, and did not allocute or speak the words of guilt, alleging he was not present at the time counsel plea bargained with the prosecution. Also, counsel did not speak Spanish, thus did not explain the plea bargain the defendant claimed he did not understand. The court stated while defendant said he did not allocute, it was a mischaracterization of the record, which consisted of 11 pages of colloquy between the court and defendant. It found a defendant did not have to allocute or speak the words of guilt for every element of the charge in a violation case as a court could determine the voluntariness of a plea from what was conjunctively stated by the court and defendant, finding this the case here. The court found counsel’s plea bargain garnered a very favorable result for defendant, concluding defendant’s motion seemed to be more about not paying the fine rather than a showing the plea was not knowingly, voluntarily, or intelligently made, which the court believed it was. Hence, defendant’s motion was denied. The opinion appears in the New York Slip Opinion Service (www.courts.state.ny.us/reporter/decisions.htm). Holding: plea allocutions are not required of defendants in violation cases.

People v. Juana Ventura, 2007 NYSlipOp 51949(U) and New York Law Journal, November 13, 2007 at 1, 17 & 19. Various Bail Conditions Set for Defendant Charged With Illegally Renting One-Family Home to Many - Defendant was before the court for arraignment on 17 pending charges, some alleged to be second and third offenses, thus carrying enhanced potential penalties upon conviction. The court noted defendant was faced with a potential jail sentence of approximately five months if convicted on all charges and if sentenced consecutively. The defendant was an alleged absentee owner/landlord of a purported single-family home which she allegedly rented out illegally to more than one family. The court opined the sole purpose of bail should be to insure the attendance of defendant at court appearances. The Bail Reform Act of 1984 provided for release based on conditions that would assure the appearance of defendant and not endanger the safety of any other person or community, but be the least restrictive to further these purposes. The court ordered defendant to have no further contact with the tenants of the subject premises, not to rent the premises to anyone, and to post as bail $40,000 as a confession of judgment.

People v. Juana Ventura, 2007 NYSlipOp 52232(U) and New York Law Journal, December 4, 2007 at 1, 25 and 28. Court Finds Recusal Mandatory, Not Discretionary After signing Ex Parte Search Warrant Application - Previously the court signed a search warrant, received the return on the warrant and presided over the arraignment and bail proceedings, establishing a scheduling order for any motions. The court now questioned whether it had to recuse itself as a matter of law as it heard the ex parte search warrant application and signed the warrant, essentially finding that there was probable cause for the search. It opined whether such actions required mandatory recusal by the court, answering in the affirmative. The court stated the signing of a warrant based on probable cause clearly showed a prejudgment or disposition by the court which would preclude it, as a matter of law, from fairly deciding that issue anew, either on motion papers following a pre-trial or during the trial itself. It stated as it did not preside over jury trials, it was both the finder of fact and a judge on the law and facts. Thus, the court concluded, sua sponte, that recusal was mandatory, not discretionary, under these non-jury circumstances.

People v. Juana Ventura (unreported). This is a decision on “settling the record” in courts not of record. It addresses the importance of having a stenographic record in lieu of an electronic recording of proceedings.

People v. Alba Garcia, New York Law Journal, October 22, 2007 at 1, 17, 21 and 22. Landlord May Not Be Convicted on Basis of Uncorroborated Accomplice Testimony Alone - Defendant landlord was charged with various violations of the village building code, including renting without a permit. Defendant’s niece, Kercek, was originally charged with the identical violations, but prosecutors granted her immunity. The court noted Kercek fit within the definition of an accomplice. It stated Criminal Procedure Law §60.22(3) provided that a witness’ role as an accomplice was not negated if her prosecution was precluded through use of immunity. Since Kercek was an accomplice, the court ruled purposes of §60.22, per §60.22(1), defendant could not be convicted of any of the charges brought against her by the prosecution solely based on her testimony. It stated as the building inspector was unable to corroborate Kercek’s testimony, defendant could not be convicted without corroborative evidence that tended to connect defendant with the commission of the offense. Thus, the court found defendant guilty of renting without a permit, but not guilty of all remaining charges.

People v. Rafael Quiroga-Puma, 2007 NYSlipOp 27527 ____ Misc. 3d ____ (2007). See Bill Sanderson, Judge Gives Alien Pass On License, New York Post, December 21, 2007 at 19; Laura Rivera, LI Judge Enters The License Debate, Newsday, December 22, 2007 at A8; Editorial, Judge Liotti Legislates, New York Post, December 26, 2007 at 30; Peter Sloggat, Decision Reignites Debate On Licenses For Illegal Immigrants, Westbury Village Justice Declares State Requirements Unconstitutional, The Attorney of Nassau County, December, 2007 at 1 and 2; The Roundtable, a publication of the American Board of Criminal Lawyers, published an article about this decision in their January, 2008 edition; Francisco Manrique, No Dar Licencias Es Discriminacion, “Es Inconstitucional No Darle Licencia A Indocumentados,” La Tribuna Hispana USA, January 2-8, 2008 at 1 and 19; New York’s Driver License Scheme Declared Unconstitutional...For Discriminating Against Illegal Aliens, India Weekly, January 6, 2008 at 23 and Decisions of Interest, New York Law Journal, January 11, 2008 at 1, 25, 29 & 30, VTL §509 Violative of Equal Protection, Privileges And Immunities Clauses; §509-1 Charge Dismissed - Defendant was charged with violating Vehicle & Traffic Law §509-1, unlicensed operation of a motor vehicle. The court found defendant was a member of a suspect class, as he was an alien, noncitizen. As such, he triggered the appropriate consideration under the Equal Protection and Privileges and Immunities clauses, applicable to persons, not just citizens. It stated while national security was a compelling interest, precluding illegal immigrants from obtaining driver’s licenses did not constitute a necessary means to achieving the objective. Hence, it found §509 violative of the Equal Protection Clause. Also, while the Privileges and Immunities Clause stated “citizens,” it has long been settled a state cannot discriminate against “non-residents.” The court ruled the state’s driver’s licensing scheme precluded undocumented immigrants from obtaining a driver’s license, a privilege afforded to citizens of the state. It found §509 violated the Privileges and Immunities Clause. Thus, it dismissed the §509-1 charge against defendant. See also, Vesselin Mitev, In Brief, New York Law Journal, January 15, 2008 at 1 & 4, Village to Appeal Justice’s Driver’s License Ruling - The Village of Westbury is appealing a decision by its village justice that dismissed a driving-without-a-license charge against a noncitizen who is “presumably” in the country illegally, finding that state law makes it impossible for the defendant to obtain a license and mount a defense. Westbury Village Justice Thomas F. Liotti, a Garden City attorney, ruled in People v. Quiroga-Puma, LX6701631, LX6701642, that Vehicle and Traffic Law §§502 and 509 violated Rafael Quiroga-Puma’s equal protection rights and was contrary to the rights and immunities clauses of the state and federal constitutions. After referring to the “astonishing” and “embarrassing” controversy generated by Governor Eliot Spitzer’s aborted proposal to allow illegal immigrants to apply for licenses, Justice Liotti wrote that there “exists no substantial reason for denying undocumented immigrants the right or ability to obtain a driver’s license.” And he concluded that “denying immigrants, regardless of their status, a driver’s license in no way constitutes a necessary means of achieving national security.” Mr. Quiroga-Puma has three previous convictions for unlicensed operation of a vehicle. Justice Liotti upheld a separate charge of driving without insurance. The opinion was published in Friday’s Law Journal. Village prosecutor Dwight D. Kraemer said the notice of appeal focuses on the constitutional issues in the decision. Mr. Liotti appeared on the Lou Dobbs Show on CNN (an international television broadcast) on December 21, 2007. See News In Brief, Judge Asks for Added Security After Ruling on Illegal Immigrant, New York Law Journal, February 15, 2008 at 1 and Brian Harmon, Hate Mail Unleashed vs. Judge, He Tossed Immig’s Driver’s License Rap, The New York Daily News, February 18, 2008 at 24.