Petition for Writ of Certiorari — McEvoy v. New York
Supreme Court brief1991
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Case Number:
- APR 8 1991
UNITED STATES SUPREME COURT
a vere Saewe | orFiGe OF THE CLERK
PEPYS SS SSDS SRAS SS SSSSSSSSH NOTES tro tee
PEOPLE OF THE STATE OF NEW YORK, ’
Respondent,
- against -
PATRICK McEVOY,
Petitioner.
lee ee a Le eee x
PETITION FOR WRIT OF
CERTIORARI TO THE
UNITED STATES SUPREME
COURT
Counsel:
Charles C. Luetke
Deutsch & Spring
Attorneys for
Petitioner
Office & P.O.
Address
300 Madison Avenue
New York, N.Y. 10017
QUESTIONS PRESENTED
Whether or not due process of law is
violated by the commencement of a criminal
action pursuant to a statute that requires
actual prior notice, where the accused has
not had actual prior notice.
Whether or not requiring a landlord to spend
amounts far in excess of potential rental
income to restore a tenant constitutes the
taking of property without due process of
law where the applicable statute requires a
landlord to take only reasonable steps to
store such tenant.
Whether or not a criminal defendant is
deprived of his 6th-Amendment Right to
effective counsel by refusing to grant a
reasonable adjournment based on the actual
engagement of his counsel on another matter
and forcing such defendant to be tried with
counsel with little familiarity with the
matter.
TABLE OF CONTENTS
Table of Authorities
References to Reports and Opinions
delivered in this case by other
Courts
Statement of grounds on which this
Court has jurisdiction
Applicable Constitutional provisions
and statutes
Concise statements of the case
containing the facts material
to the consideration of the
questions presented
Reasons this matter should be reviewed
by the court
Appendix
Page
TABLE OF AUTHORITIES
Atco Midwood Associates v. Benitez 106 AD 2nd
501, 482 NYS 2d 839
Oberlander v. Perales 740 F2d 116 (2nd Cir.
1984)
US v. King 762 F2d 252 2nd Cir.
Trial -
Apy eal -
References to Reports of
Opinions deiivered in this
case by other Courts
Criminal Court of the City of New
York County of New York. No official
report of this Court's opinion in
this matter exists. A capy of the
opinion appears in the appendix to
this Petition.
New York Supreme Court - Appellate
Term - First Department. No offic
report of this Court's opinion in
y
+
cr
)
this matter exists. A copy of
unofficial report of the opinion
which appeared in The New York Law
Ji
b
T , - , , i QoQan r\Y
Journal on July 20, 1990 appear:
New York State Court of Appeals - No official
United Stat
District
of
e
. > ‘ata hic +6 ot ae — - _—
report of this Court’s opinion in
this matter exists A copy of the
Al 7
‘ - & « ~ T . , . a
Certificate Denying Leave to App
nmNnearc ry +hea mMnanndiwv + SS Se
a} pears Ln iit apvopenalx L © Lit i ©
Petition.
~ -s ~ ~ ,?
Ss District Court ror the Soutney
, , » Re y - . ) . » ~ »
New York _ No Orricial report Ol
|
+ «
—~
Ji
mr
se ere En ee
Statement of Grounds on which the
Jurisdiction of this Court is invoked.
(i) The date of entry of the judgment sought to
be reviewed is January 7, 1991.
(ii) This Court has jurisdiction to review the
judgment in question pursuant to Rule 13.1
of the Rules of the Supreme Court as the
judgment was rendered by the highest Court
of the State of New York in a criminal
matter within the last 90 days.
|
7
Applicable Constitutional
Provisions and Statutes.
The Constitutional Provisions relied upon
are:
Fourteenth Amendment to the United States
Constitution which states,
"All the persons born or naturalized in
the United States, and subject to the jur-
isdiction thereof, are citizens of the
United States and of the State wherein
they reside. No state shall make or enfo-
rce any law which shall abridge the privi-
leges or immunities of citizens of the
United States; nor shall any State deprive
any person of life, liberty, or propery,
without due process of law; nor deny any
person within its jurisdiction the equal
protection of the laws."
Sixth Amendment to the United States
Constitution which states,
"In all criminal prosecutions, the accused
shall enjoy the right to a speedy and pub-
lic trial, by an impartial jury of the
state and district wherein the crime shall
have been commited, which district shall
have been previously ascertained by law,
and to be informed of the nature and cause
of the accusation; to be confronted with
the witnesses against him; to have compul-
satory process for obtaining witnesses in
his favor, and to have the Assistance of
Counsel for his defense."
New York City Administrative Code Sec. 26-
521, which is set forth in its entirety in
the appendix.
Concise Statement of the Case
Containing the Facts Material
to the Consideration of the
Questions Presented.
1. The Statuteunder which the Petitioner
was convicted, [NYC Administrative Code Section
26-521(b)], makes it criminal to take steps to
keep a tenant who has been removed from an apart-
ment out of his/her apartment once a demand to
be restored has been made. The criminal pro-
ceeding against Mr. McEvoy was commenced on the
same day as a letter demanding that the tenancy
be restored was mailed. Hence, Mr. McEvoy did
not have prior notice as required by the statute.
2. Testimony was heard at trial that
approximately $200,000.00 would have had to be
invested to renovate the building. At the then
prevailing interest rates, a twenty (20) year
loan of $200,000.00 would require a monthly
repayment obligation of approximately $24,770.
per year. Testimony was also introduced that
the expected rental income was approximately
$30,000.00. Since only slightly more than
$5,000.00 would be available for any other
maintenance, renovations and improvements, this
6
is obviously not an economically feasible
exercise.
3. The Petitioner's counsel of choice,
Laurence E. Deutsch was actively engaged in
another trial on the day the Petitioner's
trial began. The Petitioner was forced to
begin his trial with an attorney that received
the file the evening before the trial was to
begin. The trial judge refused to grant even
a one day adjournment. Representation by
counsel who is not fully prepared for a trial
~ * > -o -a - ~ -- ~ “ 7 “7
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appendix to this Petition). The federal
questions were ignored or were not specifically
addressed by each Court that the Petitioner has
applied to.
o8)
Reasons this Matter Should Be Reviewed
By The Court
POINT I
CONVICTION OF THE PETITIONER UNDER SECTION
26-521(b) of the New York City Administra-
tive Code, denied Petitioner due process
of law, since the evidence plainly es-
tablished that the Notice required to be
given as a condition of finding a viola-
tion was given subsequent to the issuance
of the information upon which the viola-
tion was based
26-521(b) of the New York City Administrative
Code provides in pertinent part:
"b. it shall be unlawful for an owner of
a dwelling unit to fail to take all
reasonable and necessary action to rest-
ore to occupancy an occupant of a dwell-
ing unit who either vacates, has been
removed from, or is otherwise prevented
from occupying a dwelling unit as the
result of any of the acts or omissions
prescribed in subdivision a of this
section and to provide to such occupant
a dwelling unit within such dwelling
Suitable for occupancy, after being
requested to do so by such occupant
or the representative of such occupant,
if such owner either committed such |
unlawful acts or omissions or knew or
had reason to know of such unlawful acts
Or omissions, or if such acts or omissions
occurred within seven days prior to
such request." (Emphasis added)
In the instant case, the testimony of the
occupant of the subject unit was that she mailed
a letter to petitioner requesting to have access
to her apartment at a point subsequent to May 8,
9
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MS, NELSON: Yes, this is
People's 6.
THE COURT: It's already in
evidence.
MR. DEUTSCH: Then may I have
the copy back in evidence?
I don't know when it was delivered,
but it has May 8th, 1987 on it.
Well, after you signed it, what did
you do with it?
I sent it.
To whom?
McChips Associates, addressed to Mr.
McEvoy.
Did you send it on May 8th?
No, I sent it later.
You sent it after May 8th?
Yes.
And you sent it by mail, hand delivered
or how?
By mail, registered.
And other than this communication, did
you ever have any other communication
with anyone on behalf of McChip
Associates?
No."
(Emphasis added)
The instrument utilized as the basis of
11
this prosecution was invalid as to the violation
of 26-521(b) since this statute presumes that
a landlord has been notified of the tenant's
desire to be restored to occupancy (and there-
fore an opportunity to comply with the request
is afforded). The Notice posted subsequent to
the execution of the accusatory instrument is
wholly insufficient to satisfy the obvious
intention of the Notice requirement. Conseque-
ntly, prosecution of Petitioner under 26-521(b)
was violative of Petitioner's fundamental
constitutional right to due process of law.
"No State shall ... deprive any person
of liberty ... without due process
Of £80..."
It is long understood that two of the
cornerstones of due process are notice and an
opportunity to be heard. See e.g. Oberlander
v Perales, 740 F2d 116, 120 (2 Dept. 1984).
If this concept is logically extended one step
further, it would certainly appear that due
process is offended when a statute which
requires notice as a condition of violation is
deemed to have been _— when notice was not
afforded at the time the violation was alleged.
Due process is similarly flaunted where, as
here, a defendant is prosecuted where the under-
lying facts obviously depart from the normal
import of the language of the statute.
POINT II
CONVICTION OF THE PETITIONER UNDER
SECTION 26 521(b) of the New York
City Administrative Code for failing
to take reasonable action to restore
the tenant, denied petitioner due
process of law, since the evidence
established that the repairs required
were wholly unfeasible from an economic
standpoint. Thus, requiring Petitioner
to make such repairs, deprived Petitioner
of the reasonable use of his property
without due process.
Once again our attention is turned to
Section 26-52 (b) which provides, in relevant
part:
"It shall be unlawful for an owner of a
dwelling unit to fail to take all
reasonable and necessary action to restore
to occupancy an occupant of a dwelling
unit.”
(emphasis added)
"Reasonable' must be defined by its every-
day common utilization, which is "not extreme or
excessive" -- Webster's 7th New Collegiate
Dictionary 1967.
13
It is respectfully contended that requir-
ing a landlord to make repairs to enable
tenant to be restored to possession is not
reasonable where the cost of such repairs far
exceeds the potential rental income to be de-
rived.
The following excerpt of the trial trans-
cript gives a precise picture of the economic
circumstances involved, (Tr. pg. 156 in 14 t«
Tre
Q.
pg 157 line 16:
+
‘
Mr. McEvoy, you previously testified that
you made a determination of the cost to
place the building in a habitable condition.
Yes.
Have you ever made an analysis of whether or
not the building after such renovations
could sustain itself?
Yes.
Economically?
Yes.
MS. NELSON: Objection to the relevance.
THE COURT: Overruled.
Now, what factors did you take into consid-
eration in making that determination?
Well --
THE COURT: Off the record.
14
(Discussion held off the record.)
A. What was the question again?
(Last question read back by court reporter)
A. Well, you spend forty thousand a unit to
renovate it and there are three units in the
building and one store and the store being
in the middle of a block it's not a very --
not a good place to rent a store and to rent
the apartments would probably bring about
six, six-fifty a month after renovation and
you're talking about getting back something
like twenty-five hundred dollars on the
building, it's not a good investment.
The Appellate Term, lst Department, was
presented with the above situation together
with the added fact that obtaining a $200,000.00
loan for a period of twenty (20) years at
prevailing rates of interest would require re-
payment of approximately Twenty-Four Thousand,
Seven-Hundred and Seventy Dollars. ($24,770.00)
This, when viewed with a potential annual income
of $30,000 from rent leaves only slightly more
than $5,000 per annum for improvements not rel-
ated to the initial modifications to make the
structure fit for habitation. This is obvious-
ly not an economically feasible exercise
The Due Process Clause of the 14th Amendm-
ent of the United States Constitution provides,
15
in its relevant part,
"No state shall ... deprive any person of
life, liberty, or property without due
process of law.”
(Emphasis added)
It would appear that a deniai of the right
to utilize one's property in an economically
feasible manner is tantamount to a deprivation
of the property itself. Decisions in this state
have already acknowledged that economic feasib-
ility is one question which courts may consider
in determining whether to require repairs to a
multiple dwelling structure. See eg. Atco Mid-
wood Associates v. Benitez 106 AD 2nd 501, 482
NYS 2d 839 (AD 2 Dept 1984). It follows that
the failure of the trial court to give consid-
eration to the economic evidence and the finding
of culpability derived petitioner of reasonable
use of his property without due process of law.
POINT III
THE FAILURE OF THE TRIAL JUDGE TO GRANT
PETITIONER A BRIEF ADJOURNMENT DUE TO THE
FACT THAT HIS CHOSEN COUNSEL WAS OTHERWISE
ENGAGED, DEPRIVED PETITIONER OF EFFECTIVE
ASSISTANCE OF COUNSEL
The right to the effective assistance of
counsel is provided by the Sixth Amendment to
16
the United States Constitution and is
to the S
provides
"In
sha
ass
In the instant case, petitioner's trial
commenced on December 8, 1987 before Judas
Leland DeGrasse. At that time Michael ilver
stein, an associate of the trial counsel, La
ence E. Deutsch, was present. Mr. Silverstei
pointed out to the court that Mr. Deutsch w
in the process of selecting a jury ina matte
before Judge Cohen in Kings County and reques
ed a brief adjournment. This request was de
ed, notwithstanding the fact that Mr. ilver
€in advised the court that he had been given
file the cay before (Monday, December 7, 1987
ind that "Mr. McEvoy does not want me to r
sent him" (Trial Transcript pg. 2 lines 14-15
Later on, petitioner was afforded the Hobson'
choice of having an attorney with only fleeti
familiarity with the case represent him o >
resenting himself. The trial proceeded. Mr
Deutsch managed to interrupt his ju selecti
tate
Action
by
4
in pertinent
all
istance
the
part:
14th
right to .
for
applied
Amendment.
criminal prosecutions, th
ll enjoy the
of counsel
ee have
his
©
defen
ct
~
ee
to attend the afternoon session where the situ-
ation was again explained to the judge. The
following is an excerpt of the trial minutes
which illustrates the situation:
MR. DEUTSCH: The information you have been
given is accurate to the extent that I had
advised the justice presiding in the trial
part, in criminal court, New York County,
on the last calendar call of this case
that I would be engaged in family court,
Westchester County on the morning of the
7th and requested that this case be adjou-
rned to at least twelve noon. At that time
I was not aware of the fact that I would
be directec by Judge Cohen to proceed with
the other case. I cannot control the cal-
endars of either court. I have no way of
telling Judge Cohen that once we start his
action that I must come to criminal court,
New York County. Now this is not somethi-
ng of my making. It is not a request of
an adjournment because I wanted an adjour-
mment or because it is convenient for me
or for any other reason having to do with
me. I am caught between two trials I am
the only attorney in my firm who has enou-
gh knowledge of both the matters to try
both the matters, and I am caught between
essentially two judges who say I have to
try a case at the same time. I have a
hard time doing it with a complete body
and split in half I would be unable to do
it at all.
THE COURT: You say you did not have enough
time to interview witnesses and prepare
for trial. I'm looking at the court file
and it shows that the matter was adjourned
from August 24th to October 29th for trial,
October 29th to November 19th for trial,
from November 19th to December lst to
yesterday for trial. It has been on for
18
quite some time for trial and you have had
ample time to prepare therefore this matt-
er will not be adjourned. (Tr. pg 48, line
12--pg49 line 20)
This circuit has held that in order to
demonstrate that a trial judge abused his disc-
retion in denying a motion for an adjournment
of the scheduled start of trial, a defendant is
required to establish that the denial was arbi-
traryand substantially impaired his defense...
U.S. v. King 762 F2d 252 (2 Cir 1985) cert den.
106 S.CT 1203, (1986). It is respectfully
submitted that the facts presented herein demo-
nstrate that the denial of the requested adjou-
rnment was arbitrary and that the facts that Mr
Deutsch had been called away from a jury selec-
tion and that the trial continued on consecuti-
ve days (December 9 and December 10) afforded
Mr. Deutsch and petitioner no time for prepara-
tion, significnatly compromised the quality of
the petitioner's defense. The scenario results
in a conclusion that petitioner was denied the
constitutionally mandated effective assistance
of counsel.
19
CONCLUSION
FOR ALL THE REASONS SET FORTH HEREIN, IT
IS RESPECTFULLY REQUESTED THAT THIS COURT
GRANT THIS PETITION FOR A WRIT OF
CERTIORARI
Dated: New York, New York
April 5, 1991
Respectfully submitted,
Charles C. Luetke
Deutsch & Spring
Attorneys for Petitioner
Office & P.O. Address
300 Madison Avenue
New York, NY 10017
(212) 661-0722
20 -
APPENDIX
Decision of the Criminal Court of
the City of New York.
Decision of the New York State
Supreme Court Appellate
Division.
Decision of the New York State
Court of Appeals (September 4,
1990).
Decision of the United States Court
for the Southern District of
New York.
Decision of the New York State
Court of Appeals (January 7,
1991).
Memorandum of Law in Support of
Application for Leave to Appeal
to the New York State Court of
Appeals.
New York City Administrative Code
sec. 26-521
21
CRIMINAL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
<< e e ee ee e e e e e e e ee e e ee e e ee e e e e x
PEOPLE OF THE STATE OF NEW YORK,
~agarnse= Docket No.:
PATRICK McEVOY, 7N047191
Defendant.
ee ee ce ere ere re re ree eee re cre ere ee eee ee ee ee ee ee ee ee eee ee x
DEGRASSE, LELAND J.3
After trial, defendant is found guilty of
causing an unlawful eviction in violation of
Administrative Code of the City of New York
S. 26-521 (formerly S. D1l6-1.01).
Defendant is a principal of McChip Assoc-
iates, the owner of premises located at 215
East 3rd Street in Manhattan. The premises
consist of two apartment buildings separated
by a courtyard (hereinafter referred to as the
front building and the rear building). A
passageway through the front building provides
the only access to the courtyard and the rear
building.
The complainant, Maria Miliczenko and her
family have lived in a rear building apartment
for at least 33 years. On December 20, 1985,
Index No.: 7N047191 Page Two
the front building's facade partially collapsed
causing the evacuation of the building pursuant
to a vacate order of the New York City Depart-
ment of Buildings. The vacate order cited the
imminent danger of further collapse. As an-
other consequence of the collapse, the Milicz
enkos and the other tenants have been unable
to enter the rear building. Both buildings
remain vacant to this day.
Administrative Code S. 26-521, in
pertinent part, provides:
Unlawful eviction. a. It shall be unlaw-
ful for any person to evict or attempt to
evict an occupant of a dwelling unit who
has lawfully occupied the dwelling unit
for thirty consecutive days or longer* * *
except to the extent permitted by law
pursuant to a warrant of eviction or other
order of a court of competent jurisdiction
Or a governmental vacate order by:
(1) using or threatening the use of
force to induce the occupant to vacate the
dwelling unit; or
(2) engaging in a course of conduct
which interferes with or is intended to
interfere with or disturb the comfort,
repose, peace or quiet of such occupant
in the use or occupancy of the dwelling
unit, to induce the occupant to vacate
the dwelling unit including, but not
limited to, the interruption or discon-
tinuance of essential services; or
Index No.: 7N047191 Page Three
(3) engaging or threatening to
engage in any other conduct which prevents
or is intended to prevent such occupant
from the lawful occupancy of such occupant
from the lawful occupancy of such dwelling
unit or to induce the occupant to vacate
the dwelling unit* * *
b. It shall be unlawful for an owner of
a dwelling unit to fail to take all reason-
able and necessary action to restore to
orcupancy an occupant of a dwelling unit
who either vacates, has been removed from
or is otherwise prevented from occupying
a dwelling unit as the result of any of
the acts or omissions prescribed in sub-
division a of this section and to provide
to such occupant a dwelling unit within
such dwelling suitable for occupancy,
after being requested to do so by such
occupant or the representative of such
occupant, if such owner either committed
such unlawful acts or omissions or knew
or had reason to know of such unlawful
acts or omissions, or if such acts or
omissions occurred within seven days prior
to such request.
The people were permitted to adduce evid-
ence of the following other related prosecutions
pursuant to People v. Molineaux (168 NY 264).
On July 18, 1985, defendant was issued two
summonses for building violations. The
summonses led to separate prosecutions for
failure to maintain the subject premises in a
safe condition, in violation of Administrative
Code S. 27-127 (formerly Section C26-105.1).
_
Index No.: 7N047191 Page Four
The two informations filed contain allega-
tions of hazardously bulged and defective
brickwork on the facade. Erin Construction
Corp., of which defendant is also a principal,
pled guilty to both informations as a sub-
stituted defendant. Evidence of these prosecu-
tions is probative of defendant's knowledge of
the facade's dangerous condition as -well as the
specific intent required by the statute
(Administrative Code 26-521 (a) [1] and [2]).
In this connection, it is also significant
that 13 weeks before the collapse, defendant
told Ms. Miliczenko that her family would
have to move because the building was unsafe.
On April 28, 1986, defendant was issued
three more summonses for his failure to repair
the facade. These summonses also resulted in
prosecutions and convictions for failure to
maintain the premises in a safe condition.
Defendant did not repair the collapsed facade
until October, 1986.
Prior to the facade's collapse, defendant
Index No.: 7N047191 Page Five
neglected other essential repairs to the
premises. In July, 1984, defendant's delay of
certain plumbing repairs caused the tenants to
be deprived of running water for two weeks.
It is settled that a constructive eviction
occurs where a landlord fails to repair pre-
mises causing them to become unfit or unsafe
for occupancy (Tallman v. Murphy, 120 NY 345).
Defendant is criminally liable for the
acts or omissions of his corporation (Penal
Law Section 20.25). It has been proven
beyond a reasonable doubt, that defendant en-
gaged in a course of conduct calculated to drive
the Miliczenkos and other tenants from their
apartments. He had more than sufficient no ice
of the facade's hazardous condition but did
nothing to avert its collapse with the result-
ant consequences.
The vacate order does not relieve defendant
Of liability under either subdivision of the
statute. Defendant could have, but failed to,
repair the facade within a reasonable time.
EE
¢
Index No.: 7N047191 Page Six
Such repairs would have led to a rescission
of the vacate order. However, no steps were
taken to repair the facade until 10 months
after the tenants were forced to vacate the
premises.
Accordingly, defendant's guiit has been
established under subdivisions a (2) (3) and b
of the statute.
March , 1988
_ APPELLATE TERM
By Ostran, P.J.; Sandifer
and Miller, J.
88-490. PEOPLE, res, v. PATRICK Mct-
- VOY, ap—Judgmest cf conviction ren-
_ dered May’, 1988 (DeGrasse, J.) affirmed.
- Wecoscude that the weight of the evi-
“dence adduced at trial establishes that the
| defendant engaged in a course of conduct
_ calculated to induce the complaining wit-
- HESS, a rent controlled tenant for more
- than D years, to vacate the subject dwell-
- ing unit Defendant’s actions in failing to °
_ Correct violations of record or otherwise
maintaining the premises—which resulted
in the collapse of the building wall—and
his further inaction in unreasonably delay-
_ ing the repairs necessary to rescind the va-
cate order and restore the premises to
habitable conditicn, were clearty violative,
of sec3on 26-521 of the Administrative’
Code. Delendant’s studied indifference to
his owner obligaticns and panernofne .
giec (which included the posting of his
own vacate notice) surely rendered the
building unsafe and unfit for habitation
and prevented tecant from lawtully ocor
_ were defen
pying her dwelling unit The ‘act that the
Deparmect of Buildings was ultimately re-
quired to issue a vacate order ia this case
did not, as icund below, absolute defen-
dant fom noir under the Code. Nor
t's allegations of economic
unfeasibility—even assuming they would
constitute a defecse in this Cimizal pro-
ceeding—escablished below (see Zyedent
v. Vickers Mgt, 120 AD2d 202).
We bave examined defendant's remain-
ing contentors and find them to be with-
out substantal merit. The trial court did
. not abuse its discretion in refusing to grant
defendant a further adjournment (People.
v. Singleton, 41 N.Y. 2d 402, 405). The se
tence impesed wasnotexcessve lt
Sandife:, J. and Miller, J. concur; Ostrau,
J., conczrs in part and dissents in part in
the following memorandux
Ostrau, ?J.—Although, | agree that the
evidence is suificient to sustain the defen-
dant’s convicicn under Adcinistrative .
Code 25-521 the imposition of a jail sea- ©
tence is unculy harsh. The $1,000 fine im-
posed was an appropriate penalty.
State of Rew Bork
Court of Appeals cenmieicare
DENYING
LEAVE
BEFORE: HON. JOSEPH W. BELLACOSA, Associate Judge
THE PEOPLE OF THE STATE OF NEW YORK
Respondent,
against
Patrick McEvoy,
Appellant.
I, JOSEPH W. BELLACOSA, Associate Judge of the Court of
Appeals of the State of New York, do hereby certify that, upon
application tirnely made by the above-named appellant for a
certificate pursuant to CPL 460.20 and upon the record and
procecdings hercin,* there is no question of law presented which
ought to be reviewed by the Court of Appeals and permission
to appeal fs hereby denied. Stay denied as academic.
Dated at Albany, New York
September 4, 19 90
| Associate Judge
"Description of Order:
Order of the Appellate Term, First Department,
dated July 19, 1990, affirming a judgment of the
Criminal Court of the City of New York, rendered
May 5, 1988.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
<r ee ee ee me cee ee eee ree ee ee eee ee ee ee ee ee ee eee ee ee ee x
PATRICK McEVOY,
way MEMORANDUM
Petitioner, ORDER
= egesnec - 90 Civ. 6131
(PKL)
ALLYN SIELAFF, COMMISSIONER OF
CORRECTIONS, CITY OF NEW YORK,
Respondent. :
ee re re re re cre re mre ee ere eee re er cere re eee ee ee cee ee cee eee eee ee ee ee eee xX
LEISURE, District Judge:
This petition for a writ of habeas corpus
was referred to United States Magistrate
Kathleen A. Roberts on October 9, 1990. On
October 30, 1990, Magistrate Roberts issued a
Report and Recommendation recommending that
the petition be dismissed on the ground that
petitioner has failed to exhaust his state
remedies. On November 2, 1990, petitioner was
released from custody.
"A basic tenet of federal jurisdiction is
that when a court is presented with issues that
‘are no longer "live"' or when the parties
"lack a cognizable interest in the outcome,'
the case is moot and therefore outside the
=
court's jurisdictional authority." In re Tax
Refund Litigation, 1990 U.S. App. LEXIS 16016
at 3 (2d Cir. September 11, 1990) (quoting R.C.
Bigelow Inc. v. Unilever N.V., 867 F.2d 102,
105 (2d Cir. 1989) (quoting Powell v. McCormack,
395 U.S. 486, 496 (1969))). In the instant
action, the release of petitioner from custody
has rendered moot his petition for a writ of
habeas corpus pursuant to 28 U.S.C. S. 2254.
See United States v. Bradford, 194 F.2d 197
(2d Cir.) (L. Hand, J.), cert. denied, 343
U.S. 979 (1952) and 347 U.S. 945 (1954); Paul
v. Sava, 85 Civ. 5796 (CSH) slip op. (Septem-
ber 17, 1985) (petitioner's release from cust-
ody rendered his petition for a writ of habeas
corpus moot). Therefore, this Court need not
consider whether to accept or reject Magistrate
Robert's recommendation that petitioner's
petition for a writ of habeas corpus be denied.
SO ORDERED
New York, New York
November 20, 1990
_ Peter K. Leisure _
U.S.D.J.
Copies of this Order have been mailed to:
Neal Borg, Esq.
Deutsch & Spring
300 Madison Avenue
New York, New York 10017
Deborah Rand, Esq.
Corporation Counsel ~-
100 Church Street
New York, New York 10007
Charles C. Davis, Esq.
Chief of Prisoner Litigation
Attorney General's Office of the
State of New York
120 Broadway
New York, New York 10271
Magistrate Roberts
tate of Acw Work
Court of Appeals CERTIFICATE GRANTING
RECONSIDERATION AND
ADHERING TO PRIOR
DETERMINATION
BEFORE: HON. JOSEPH W. BELLACOSA, Judge
THE PEOPLE OF THE STATE OF NEW YORK,
Respondent,
-against-
Patrick McEvoy,
Appellant.
Appellant having requested reconsideration
of my order dated September 4, 1990 denying
said appellant's application for permission to
appeal pursuant to Criminal Procedure Law
§460.20; and said application for
reconsideration iaving hereby been granted;
I, Joseph W. Bellacosa, Judge of the Court
of Appeals of the State of New York, do hereby
adhere to my prior determination and certify
that there is no question of law presented
which ought to be reviewed by the Court of
Appeals and permission to appeal is hereby
denied.”
Dated at Albany, New York
January 7, 1991
Nye) Apter —
+. \. the Court oi Appeals
*pescription of Order: Order of the Appellate
Term, First Department, dated July 19, 1990,
j f
affirming a judgment of the Criminal Court o
the City of New York, rendered May 5, 1988.
a
i
NEW YORK STATE COURT OF APPEALS
EOPLE CF THE STATE OF NEW YORK,
| Resooncent,
- against -
PATRICK McEVOY,
MEMORANDUM OF LAW IN SUPPORT
FOR LEAVE FOR APPEAL TO THE NEW
- YORK STATE COURT OF APPEALS
~
we .
rd e
300 Macison a
e or
STATEMENT OF FACTS
On or about May 8, 1987, petitioner was
accused in a criminal information of violations
of the following provisions of the New York
City Administrative Code 26-521 (a)(1), 26-521
(a) (2), 26-521 (a) 26-521 (b).
Essentially, petitioner was accused of
engaging in a course of conduct with. the object
of evicting a rent controlled tenant and event-
ually of preventing this tenant from returning
to occupancy after the tenant vacated pursuant
to an order of the Department of Buildings. A
non-jury trial was conducted before Hon. Leland
DeGrasse, then Criminal Court Justice, who
found petitioner guilty of violating all the
above-enumerated provisions with the exception
of 26-521 (a)(1) (withdrawn by the People duri-
ng the course of trial). On May 5, 1988, peti-
tioner was sentenced to ninety (90) days incar-
ceration and was fined $1,000.00. An appeal
was taken to the Supreme Court of the State of
New York, Appellate Term, lst Department, with
said appeal orally argued on May 8, 1989. Ther-
eafter on or about July 24th, 1990, the three
(3) judge panel affirmed the conviction and the
sentence. An application was made by the law
firm of Winston & Winston to Judge Bellacosa
of the New York State Court of Appeals for
leave to appeal to the full court. This appli-
cation was denied.on September 4, 1990. Petit-
ioner had, up until the immediate above-mentio-
ned date, been free due to a series of stays of
execution of the sentence. However, the appli-
cation to the Court of Appeals similarly denied
a further stay, and Petitioner surrendered to
the Court on September 5, 1990. The Court, at
that time ordered him remanded to custody.
On September 24, 1990, a Petition for a
writ of habeus corpus was submitted by the law
firm of Deutsch & Spring to the United States
District Court for the Southern District of New
York. The petition sought an order vacating
Patrick McEvoy's conviction as we believe that
conviction violated Patrick McEvoy's constitut-
ional rights. The petition also sought Mr.
McEvoy's release from custody.*
In a report to Judge Peter K. Leisure,
-United States Magistrate Kathleen Roberts
recommended that the petition's merits not be
considered. The rationale for this recommenda-
tion was that the New York State Court of
Appeals was not given the opportunity to consi-
der all of the constitutional issues raised in
the petition to the Federal Court.
* Judge Leisure recently issued a decision dec-
laring the petition as moot as the petitioner
has been released from custody. Patrick McEvoy
still seeks the reversal of the underlying con-
viction so that his name will be cleared of this
wrongful criminal conviction (albeit a misdeme-
anor.)
POINT I
CONVICTION OF THE PETITIONER UNDER SECTION
26-521(b) of the New York City Administra-
tive Code, denied Petitioner due process
of law, since the evidence plainly es-
tablished that the Notice required to be
given as a condition of finding a viola-
tion was given subsequent to the issuance
of the information upon which the viola-
tion was based
26-521(b) of the New York City Administrative
Code provides in pertinent part:
"b. it shall be unlawful for an owner of
a dwelling unit to fail to take all
reasonable and necessary action to rest-
Ore tO occupancy an occupant of a dwell-
ing unit who either vacates, has been
removed from, or is otherwise prevented
feom occupying a dwelling unit as the
result of any of the acts or omissions
prescribed in subdivision a of this
section and to provide to such occupant
a dwelling unit within such dwelling
Suitable for occupancy, after being
requested to do so by such occupant
or the representative of such occupant,
if such owner either committed such
unlawful acts or omissions or knew or
had reason to know of such unlawful acts
Or omissions, or if such acts or omissions
occurred within seven days prior to
such request." (Emphasis added)
In the instant case, the testimony of the
occupant of the subject unit was that she mailed
a letter to petitioner requesting to have access
to her apartment at a point subsequent to May 8,
1987. However, the accusatory instrument was
dated May 8, 1987. These facts are confirmed
by the trial testimony.
"THE COURT: That's fine. However, the
accusatory instrument is dated May 8th.
This case is being tried based upon
allegation of fact which took place prior
to that time. That deed does not show
the operative date as May 8th. I don't
know what bearing that deed would have
on this." (Emphasis added)
(DeG., pp. 56-58)
"Q. Now, I believe that you said that you never
had any communication with Mr. McEvoy?
A. He never made any effort.
Q. No, no, did you have any communication with
him?
A. No.
Q. I show you this document and I ask you
whether or not you can identify it.
A. It's mine.
Q. Was that sent to Mr. McEvoy?
A. Yes.
Q. When was it sent to Mr. McEvoy?
MS. NELSON: Can we have that
identified for the record?
THE COURT: That's People's 6,
the letter. Is that it?
MR. DEUTSCH: I don't know,
I have a copy. I wasn't here
this morning.
MS, NELSON: Yes, this is
People's 6.
THE COURT: It's already in
evidence.
MR. DEUTSCH: Then may I have
the copy back in evidence?
A. I don't know when it was delivered,
but it has May 8th, 1987 on it. -
Q. Well, after you signed it, what did
you do with it? Ri
A. I sent it.
Q. To whom?
A. McChips Associates, addressed to Mr.
McEvoy.
Q. Did you send it on May 8th?
A. No, I sent it later.
Q. You sent it after May 8th?
A. Yes.
Q. And you sent it by mail, hand delivered
or how?
A. By mail, registered.
Q. And other than this communication, did
you ever have any other communication
with anyone on behalf of McChip
Associates?
A. Mo.”
(Emphasis added)
The instrument utilized as the basis of
this prosecution was invalid as to the violation
of 26-521(b) since this statute presumes that
a landlord has been notified of the tenant's
desire to be restored to occupancy (and there-
fore an opportunity to comply with the request
is afforded). The Notice posted subsequent to
the execution of the accusatory instrument is
wholly insufficient to satisfy the obvious
intention of the Notice requirement. Conseque-
ntly, prosecution of Petitioner under 26-521 (b)
was violative of Petitioner's fundamental
constitutional right to due process of law.
"No State shall ... deprive any person
of liberty ... without due process
Of LAW...”
It is long understood that two of the
cornerstones of due process are notice and an
opportunity to be heard. See e.g. Oberlander
v Perales, 740 F2d 116, 120 (2 Dept. 1984).
If this concept is logically extended one step
further, it would certainly appear that due
process is offended when a statute which
requires notice as a condition of violation is
deemed to have been violated when notice was not
afforded at the time the violation was alleged.
Due process is similarly flaunted where, as
here, a defendant is prosecuted where the under-
lying facts obviously depart from the normal
import of the language of the statute.
POINT II
CONVICTION OF THE PETITIONER UNDER
SECTION 26 521(b) of the New York
City Administrative Code for failing
to take reasonable action to restore
the tenant, denied petitioner due
process of law, since the evidence
established that the repairs required
were wholly unfeasible from an economic
standpoint. Thus, requiring Petitioner
to make such repairs, deprived Petitioner
of the reasonable use of his property
without due process.
Once again our attention is turned to
Section 26-52 (b) which provides, in relevant
part:
"It shall be unlawful for an owner of a
dwelling unit to fail to take all
reasonable and necessary action to restore
to occupancy an occupant of a dwelling
wait.”
(emphasis added)
"Reasonable' must be defined by its every-
day common utilization, which is "not extreme or
excessive" -- Webster's 7th New Collegiate
Dictionary 1967.
It is respectfully contended that requir-
ing a landlord to make repairs to enable a
tenant to be restored to possession is not
reasonable where the cost of such repairs far
exceeds the potential rental income to be de-
rived.
The following excerpt of the trial trans-
cript gives a precise picture of the economic
circumstances involved, (Tr. pg. 156 in 14 to
Tr. pg 157 line 16:
Q.
Mr. McEvoy, you previously testified that
you made a determination of the cost to
place the building in a habitable condition.
Yes.
Have you ever made an analysis of whether or
not the building after such renovations
could sustain itself?
Yes.
Economically?
Yes.
MS. NELSON: Objection to the relevance.
THE COURT: Overruled.
Now, what factors did you take into consid-
eration in making that determination?
Well --
THE COURT: Off the record.
(Discussion held off the record.)
A. What was the question again?
(Last question read back by court reporter)
A. Well, you spend forty thousand a unit to
renovate it and there are three units in the
building and one store and the store being
in the middle of a block it's not a very --
not a good place to rent a store and to rent
the apartments would probably bring about
six, six-fifty a month after renovation and
youtre talking about getting back something
like twenty-five hundred dollars on the
building, it's not a good investment.
The Appeliate Term, lst Department, was
presented with the above situation together
with the added fact that obtaining a $200,000.00
loan for a period of twenty (20) years at
prevailing rates of interest would require re-
payment of approximately Twenty-Four Thousand,
Seven-Hundred and Seventy Dollars. ($24,770.00)
This, when viewed with a potential annual income
of $30,000 from rent leaves only slightly more
than $5,000 per annum for improvements not rel-
ated to the initial modifications to make the
structure fit for habitation. This is obvious-
ly not an economically feasible exercise.
The Due Process Clause of the 14th Amendm-
ent of the United States Canstitution provides,
in its relevant part,
"No state shall ... deprive any person of
life, liberty, or property without due
process of law."
(Emphasis added)
It would appear that a denial of the right
-to utilize one's property in an economically
feasible manner is tantamount to a deprivation.
of the property itself. Decisions in this state
have already acknowledged that economic feasib-
ilsity is one question which courts may consider
in determining whether to require repairs to a
multiple dwelling structure. See eg. Atco Mid-
wood Associates v. Benitez '106 AD 2nd 501, 482
NYS 2d 839 (AD 2 Dept 1984). It follows that
the failure of the trial court to give consid-. .-
eration to the economic evidence and the finding
of culpability derived petitioner of reasonable
use of his property without due process of law.
POINT III
THE FAILURE OF THE TRIAL JUDGE TO GRANT
PETITIONER A BRIEF ADJOURNMENT DUE TO THE
FACT THAT HIS CHOSEN COUNSEL WAS OTHERWISE
ENGAGED, DEPRIVED PETITIONER OF EFFECTIVE
ASSISTANCE OF COUNSEL
The right to the effective assistance of
counsel is provided by the Sixth Amendment to
the United States Constitution and is applied
to the State Action by the 14th Amendment. It
provides in pertinent part:
"In all criminal prosecutions, the accused
shall enjoy the right to ... have the
assistance of counsel for his defense."
In the instant case, petitioner's trial
commenced on December 8, 1987 before Judge
Leland DeGrasse. At that time Michael Silver-
stein, an associate of the trial counsel, Laur-
ence E. Deutsch, was present. Mr. Silverstein
pointed out to the court that Mr. Deutsch was
in the process of selecting a jury in a matter
before Judge Cohen in Kings County and request-
ed a brief adjournment. This request was deni-
od, notwithstanding the fact that Mr. Silverst-
ein advised the court that he had been given the
file the day before (Monday, December 7, 1987)
and that "Mr. McEvoy does not want me to repre-
sent him" (Trial Transcript pg. 2 lines 14-15).
Later on, petitiorer was afforded the Hobson's
choice of having an attorney with only fleeting
familiarity with the case represent him or rep-
resenting himself. The trial proceeded. Mr.
Deutsch managed to interupt his jury selection
a e
to attend the afternoon session where the situ-
ation was again explained to the judge. The
following is an excerpt of the trial minutes
which illustrates the situation:
MR. DEUTSCH: The information you have been
given is accurate to the extent that I had
advised the justice presiding in the trial
part, in criminal court, New York County,
on the last calendar call of this case
that I would be engaged in family court,
Westchester County on the morning of the
7th and requested that this case be adjou-
rned to at least twelve noon. At that time
I was not aware of the fact that I would
be directed by Judge Cohen to proceed with
the other case. I cannot control the cal-
endars of either court. I have no way of
telling Judge Cohen that once we start his
action that I must come to criminal court,
New York County. Now this is not somethi-
ng of my making. It is not a request of
an adjournment because I wanted an adjour-
nmment or because it is convenient for me
or for any other reason having to do with
me. I am caught between two traals I am
the only attorney in my firm who has enou-
gh knowledge of both the matters to try
both tne matters, and I am caught between
essentially two judges who say I have to
try a case at the same time. I have a
hard time doing it with a complete body
and split in half I would be unable to do
it at all.
THE COURT: You say you did not have enough
time to interview witnesses and prepare
for trial. I'm looking at the court file
and it shows that the matter was adjourned
from August 24th to October 29th for trial,
October 29th to November 19th for trial,
from November 19th to December lst to
yesterday for trial. It has been on for
quite some time for trial and you have had
ample time to prepare therefore this matt-
er will not be adjourned. (Tr. pg 48, line
12--pg49 line 20)
This circuit has held that in order to
demonstrate that a trial judge abused his disc-
retion in denying a motion for an adjournment
of the scheduled start of trial, a defendant is
required to establish that the denial was arbi-
traryand substantially impaired his defense...
U.S. v. King 762 F2d 252 (2 Cir 1985) cert den.
106 S.CT 1203, (1986). It is respectfully
submitted that the facts presented herein demo-
nstrate that the denial of the requested adjou-
rnment was arbitrary and that the facts that Mr.
Deutschihad been called away from a jury selec-
tion and that the trial continued on consecuti-
ve days (December 9 and December 10) afforded
Mr. Deutsch ard petitioner no time for prepara-
tion, significnatly compromised the quality of
the petitioner's defense. The scenario results
in a conclusion that petitioner was denied the
constitutionally mandated effective assistance
of counsel.
CONCLUSION
FOR ALL THE RFASONS SET FORTH HEREIN, [IT IS
RESPECTFULLY REQUESTED THAT THIS COURT REVERSE
THE FINDINGS AND CONCLUSIONS Cr THE LOWER
COURTS IN THIS MATTER.
DATED: New York, N. Y
- *e
December 17,1990
Respectfully submitted,
DEUTSCH & SPRING
Attorneys for Petitioner
Office & P.O. Address
300 Madison Avenue
New York, N Y 10017
(212) 661-9722
Of counsel:
Laurence E. Deutsch
Neil G. Borg
UNLAWFUL EVICTION .
§ 26-521 Unlawful eviction. a. It shall be unlawful for any
person to evict or attempt to evict an occupant of a dwelling unit
who has lawfully occupied the dwelling unit for thirty consecutive
days or longer or who has entered into a lease with respect to
such dweiling unit or has made a request for a lease for such
dwelling unit pursuant to the hotel stabilization provisions of the
rent stabilization law except to the extent permitted by law pur-
suant to a warrant of eviction or other order of a court of
competent jurisdiction or a governmental vacate order by:
(1) using or threatening the use of force to induce the occupant
to vacate the dwelling unit; or
(2) engaging in a course of conduct which interferes with or is
intended to interfere with or disturb the comfort, repose, peace
or quiet of such occupant 4 the use or occupancy of the dwelling
unit, to induce the occupant to vacate the dwelling unit including,
but not limited to, the interruption or discontinuance of essential
services; or
(3) engaging or threatening to engage in any other conduct which
prevents or is intended to prevent such occupant from the lawful
occupancy of such dwelling unit or to induce the occupant to
vacate the dwelling unit including, but not limited to, removing
the occupant’s possessions from the dwelling unit, removing the
door at the entrance to the dwelling unit; removing, plugging or
otherwise rendering the lock on such entrance door inoperable;
or changj:ig the lock on such entrance door without supplying the
occupant with a key.
b. It shall be unlawful for an owner of a dwelling unit to fail
to take all reasonable and necessary action to restore to occupancy
an occupant of a dwelling unit who either vacates, has been
removed from or is otherwise prevented from occupying a dwelling
unit as the result of any of the acts or omissions prescribed in
subdivision a of this section and to provide to such occupant a
dwelling unit within such dwelling suitable for occupancy, after
being requested to do so by such occupant or the representative
of such occupant, if such owner either committed such unlawful
acts Or Omissions or knew or had reason to know of such unlawful
acts or omissions, or if such acts or omissions occurred within
seven days pnor to such request.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.