Opinion
2300/2010.
July 6, 2011.
THOMAS J. SPOTA, DISTRICT ATTORNEY OF SUFFOLK COUNTY, BY: JACOB C. TURNER, ESQ., ASSISTANT DISTRICT ATTORNEY, HAUPPAUGE, NEW YORK, PLTF'S/PET'S ATTORNEY.
PERINI HOERGER, HAUPPAUGE, NEW YORK, ATTORNEY FOR DEFENDANT, JAMES PARRINO.
KEITH O'HALLORAN, ESQ., WESTHAMPTON BEACH, NEW YORK, ATTORNEY FOR DEFENDANT, JACQUELINE BAYER.
SCARING BRISSENDEN, LLC, GARDEN CITY, NEW YORK, ATTORNEY FOR DEFENDANT, CARL VRICELLA.
GEORGE J. CALCAGNINI, ESQ., SOMERS, NEW YORK, ATTORNEY FOR DEFENDANTS, JESSE MCINERNEY, JESSE JAMES HOLDINGS, INC. AND TRILOGY DEVELOPMENT, LLC.
DINO ALLOCATI, ASTORIA, NEW YORK, JOHN DIPAOLA, RONKONKOMA, NEW YORK, JOSEPH SCHILIRO, EAST MEADOW, NEW YORK, REY DELGADO, BROOKLYN, NEW YORK, JOEL SCHWARZ, YAPHANK, NEW YORK, CRIMINAL DEFENDANTS.
MELISSA DIPAOLA, RONKONKOMA, NEW YORK NACARTI CORP., BAYSIDE, NEW YORK, JTD HOLDINGS, LTD., RONKONKOMA, NEW YORK, NON-CRIMINAL DEFENDANTS.
Upon the following papers numbered 1 to 18 read on this motion TO CONFIRM EX PARTE ORDERS OF ATTACHMENT. Order to Show Cause and supporting papers 1-3; Affirmation in Opposition4; Affidavit in Opposition and supporting papers5, 6; Affirmation in Opposition and supporting papers 7, 8; Affirmation in Further Opposition and supporting papers 9, 10; Plaintiff's Affidavit in Response 11; Plaintiff's Affidavit in Response and supporting papers12, 13; Plaintiff's Affidavit in Response and supporting papers 14, 15; Supplemental Affirmation in Opposition16; Plaintiff's Affidavit in Further Response and supporting papers 17, 18; it is,
ORDERED that this motion by plaintiff for an Order, pursuant to CPLR 1317, confirming the ex parte Orders of Attachment granted by this Court on January 13, 2010 and January 14, 2010, and pursuant to CPLR 1320 (5), extending the ninety (90) day period from the date of the levy for the claiming authority to take actual possession of the property and directing that the levy remain in full force and effect pending further Order of the Court, is hereby GRANTED in its entirety.
By correspondence from counsel for criminal defendant JACQUELINE BAYER, dated March 12, 2010, this defendant withdrew her opposition to the instant application and consented to the confirmation of the Orders of Attachment.
By correspondence from counsel for non-criminal defendants JESSE MCINERNEY, JESSE JAMES HOLDINGS INC., and TRILOGY DEVELOPMENT, LLC, dated March 12, 2010, these defendants withdrew their opposition to the instant application and consented to the confirmation of the Orders of Attachment.
By Settlement Agreement and Consent to Forfeiture, sworn to on September 15, 2010 and So-Ordered by this Court on September 20, 2010, the instant action was settled and discontinued as against criminal defendant CARL VRICELLA only.
By Settlement Agreement and Consent to Forfeiture, sworn to on December 6, 2010 and So-Ordered by this Court on December 13, 2010, the instant action was settled and discontinued as against criminal defendant JAMES PARRINO only.
By Settlement Agreement and Consent to Forfeiture, sworn to on December 3, 2010 and So-Ordered by this Court on December 13, 2010, the instant action was settled and discontinued as against criminal defendant JACQUELINE BAYER only.
In view of the foregoing, this application by plaintiff to confirm the ex parte Orders of Attachment is now unopposed.
The plaintiff herein, Thomas J. Spota, District Attorney of Suffolk County, has filed an application by Order to Show Cause dated January 15, 2010 seeking an Order of this Court, pursuant to CPLR 1317, confirming ex parte Orders of Attachment heretofore granted on January 13, 2010 and January 14, 2010 and levied upon the garnishees, beginning on January 14, 2010.
The Court finds that service of the instant application, as ordered by the Court, was properly effectuated upon the defendants herein.
Plaintiff submits that the criminal defendants have engaged in criminal activity, including Operating as a Major Trafficker and Conspiracy, in connection with the sale and possession of Ketamine. The plaintiff's supporting documentation, including the affidavit of Detective Brett Carlson, sworn to on January 13, 2010, details the alleged criminal activity of trafficking Ketamine, which has resulted in approximately $4,800,000.00 in illegal proceeds.
"A court may grant an application for a provisional remedy when it determines that: (a) there is a substantial probability that the claiming authority will prevail on the issue of forfeiture and that failure to enter the order may result in the property being destroyed, removed from the jurisdiction of the court, or otherwise be unavailable for forfeiture; [and] (b) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order may operate. . . ." CPLR 1312 (3); see Morgenthau v Citisource, 68 NY2d 211 [1986]).
The plaintiff supports the instant application and the strength of the underlying criminal proceedings through the sworn affidavit of Detective Carlson. The source of Detective Carlson's knowledge is the records obtained throughout the course of the investigation, conversations with individuals associated with the investigation, and conversations with other law enforcement personnel.
Upon review of the affidavit of Detective Carlson, the Court finds the sum sought by plaintiff to be a reasonable estimate of the alleged criminal proceeds supported by the facts presented ( see Kuriansky v Natural Mold Shoe Corp., 136 Misc 2d 684 [Sup Ct, Westchester County 1987] citing Sunset Taxi Co. v Blum, 73 AD2d 691 [2d Dept 1979]).
For the purpose of the instant application, plaintiff has demonstrated a sufficient probability that he will prevail on the issue of forfeiture. In addition, when considering the liquidity of the assets seized, the Court finds a substantial risk that denial of the confirmation Order may allow for the likely dissipation or removal of said assets prior to determination of the forfeiture proceeding.
The Court is left to determine whether the need to preserve the availability of the property through the entry of the requested Order outweighs the hardship on any party against whom the Order may operate. In his application to the Court seeking confirmation of the ex parte Orders of Attachment, plaintiff addresses the hardship such Order may bring upon defendants by the statement "[a]ny hardship placed on defendants is outweighed by the need for preservation of their property for these purposes" (Turner Aff., ¶ 22). The plaintiff further reminds the Court that any undue hardship upon any of the affected defendants may be relieved by a modification of the requested Order "should they make the requisite showing that other assets are unavailable" (Turner Aff., ¶ 22).
Finally, plaintiff seeks an Order, pursuant to CPLR 1320 (5), extending the ninety (90) day period from the date of the levy for the claiming authority to take actual possession of the property pending further Order of the Court, so that plaintiff may maintain defendants' accounts that have been frozen at the current banking institutions, and to obviate the need for plaintiff to seize the monies and open a trust account.
As discussed hereinabove, the instant application is no longer opposed. Accordingly, it is
ORDERED that the ex parte Orders of Attachment granted by this Court on January 13, 2010 and January 14, 2010 and levied upon the garnishees beginning on January 14, 2010, be and the same are hereby confirmed, pursuant to CPLR 1317 (2), with respect to the remaining defendants; and it is further
ORDERED that the Court extends the ninety (90) day period from the date of the levy for the claiming authority to take actual possession of the property, pursuant to CPLR 1320 (5), and the levy shall remain in full force and effect pending further Order of the Court; and it is further
ORDERED that the within Order of this Court shall be without prejudice to any applications brought pursuant to CPLR 1312 (4).
The foregoing constitutes the decision and Order of this Court.