Opinion
No. 2011–2962NCR.
2014-07-24
The PEOPLE of the State of New York, Respondent, v. ALL STATE PROPERTIES, LLC, Appellant.
Present: IANNACCI, J.P., MARANO and TOLBERT, JJ.
Appeal, by permission, from an order of the Justice Court of the Village of Hempstead, Nassau County (Miguel A. Alvarado, J.), dated June 6, 2011. The order denied defendant's motion to vacate 28 default judgments of conviction rendered pursuant to CPL 600.20.
ORDERED that the order is affirmed.
Defendant All State Properties, LLC failed to appear in court, as directed by a summons, to enter pleas to 28 accusatory instruments charging it with various building, electrical, housing, property maintenance, plumbing, zoning and fire code violations. Upon defendant's default in appearing, the Justice Court, pursuant to CPL 600.20, entered pleas of guilty and imposed a $2,000 fine for each of the 28 convictions. Defendant thereafter moved, pursuant to “CPLR 3215,” to vacate the 28 judgments of conviction, arguing that the summons and accusatory instruments had not been properly served, and asserting that David Ney, a member of defendant, had been “very ill” on the July 1, 2009 court date, had been unable to retain representation for defendant, and, due to his illness, had mistakenly thought that the court date was July 2, 2009. The Justice Court treated defendant's motion as one for vacatur pursuant to CPLR 317 and/or 5015(a)(1), and denied the motion.
Since no appeal as of right lies from the June 2011 order ( see CPL 450.10), defendant sought, and was granted, leave to appeal the order pursuant to CPL 450.15, which provides that, upon permission, a defendant may appeal (1) an order denying a CPL 440.10 motion to vacate a judgment, (2) an order denying a CPL 440.20 motion to set aside the verdict, or (3) a sentence that is not otherwise appealable. As the instant case is a criminal matter, and no statute provides that a judgment entered pursuant to CPL 600.20 is civil in nature ( cf. Vehicle and Traffic Law § 1806–a [1]; People v. Rosano, 39 Misc.3d 126[A], 2013 N.Y. Slip Op 50410[U] [App Term, 9th & 10th Jud Dists 2013] ), the provisions of CPL 440.10, rather than any CPLR provision, control.
To the extent that defendant argued in its moving papers that the default judgments of conviction should not have been entered against it pursuant to CPLR 600.20 because defendant was not served with the summons or accusatory instruments and, thus, the Justice Court never acquired jurisdiction over it, defendant's motion seeks to vacate the judgments of conviction based, in effect, on CPL 440.10(1)(a). To the extent defendant argued that it was denied its right to due process because it was deprived of its pretrial rights and its day in court, its motion is based, in effect, on CPL 440.10(1)(h).
At the outset, we note that, for purposes of this appeal, we must assume, without deciding, that CPL article 600 applies to limited liability companies, as this issue is not before us since it has not been raised by defendant and, in any event, it could only have been raised upon direct appeals from the judgments of conviction ( see CPL 440.10[2][c] ).
Contrary to defendant's contention, we find that by personally delivering the summons to a representative of the Secretary of State in Albany, New York, the People effected service in accordance with the provisions of CPL 600.10(1) ( see also Limited Liability Company Law § 303[a] ). Consequently, defendant is not entitled to vacatur of the judgments of conviction pursuant to CPL 440.10(1)(a).
Furthermore, defendant's contention that, in effect, it was denied its right to due process, lacks merit. The record establishes that defendant was properly served with the summons, that defendant was aware of the pending court matter, and that the Justice Court entered the guilty pleas and imposed sentences pursuant to CPL 600.20. Moreover, even if we give CPL 440.10(1)(h) a broad reading, so as to find that a defendant's right may be deemed violated where the provisions of CPL 600.20 are triggered even upon an excusable failure of a defendant to appear, the conclusory claim herein, to the effect that defendant was unable to retain an attorney to appear on its behalf due to an unspecified and unsubstantiated illness of unspecified duration of a member of the limited liability company, was insufficient to establish a violation of defendant's rights. Consequently, defendant is not entitled to vacatur of the judgments of conviction pursuant to CPL 440.10(1)(h).
Accordingly, the order is affirmed.