Motion to return_vehicle_j_john_sebastian_attorney


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Motion to return_vehicle_j_john_sebastian_attorney

  1. 1. JUSTICE COURT TOWN OF WEST SENECA COUNTY OF ERIE STATE OF NEW YORK _____________________________________________X PEOPLE OF THE STATE OF NEW YORK CASE NO.: VS CLIENT NAME ______________________________________________X NOTICE OF MOTION FOR RETURN OF PROPERTY PLEASE TAKE NOTICE, that upon the annexed affirmation of J JOHN SEBASTIAN an attorney admitted to practice in the Courts of the State of New York, duly affirmed the 26th day of February , 20013 the undersigned will move the Justice Court, County of ERIE TOWN OF WEST SENECA on the __day of February 7o'clock in the evening of that day, or as soon thereafter as counsel can be heard for the following designated Orders: I...AN ORDER RELEASING DEFENDANT'S VEHICELE FROM POLICE CUSTODY A 2005 MITSUBISHI LANCER Registered and titled to CLIENT II. SUCH OTHER AND FURTHER RELIEF AS TO THE COURT DEEMS JUST AND PROPER Dated: FEBRUARY ___TH BUFFALO, New York J JOHN SEBASTIAN Attorneys for Defendant 70 NIAGARA STREET BUFFALO NY 14202 To: ERIE COUNTY DISTRICT ATTORNEY 50 DELAWARE AVE Buffalo NY 14202 CRIMINAL CLERK W SENECA JUSTICE COURT 1250 Union Rd West Seneca, NY 14224
  2. 2. JUSTICE COURT OF WEST SENACA COUNTY OF ERIE STATE OF NEW YORK ____________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, Affirmation in Support of Motion for Return of Property vs. CLIENT NAME Defendant. ____________________________________________________ AFFIRMATION J. JOHN SEBASTIAN ESQ., affirms the following under penalty of perjury: 1. I am an attorney duly admitted to practice law before the Courts of the State of New York, and I represent CLIENYon this motion FOR RETURN OF PROPERTY, TO WIT ; A 2005 MITSUBISH LANCER AUTOMOBILE 2. I base this affirmation upon personal knowledge and information and belief. The sources of my information and belief are my review of the instant felony complaint, the 710.30 Notice served on defendant and conversations with the defendant and his parents. 3. On February 22 2013 defendant herein was arrested and charged with one count of CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE IN THE THIRD DEGREE pursuant to section 220.16.01 of the NYSPL. 4. Defendant was arraigned in the Justice Court and was released on a $15,000 bail bond on February 26th 2013. 5. Defendant's vehicle was seized without a warrant by the West Seneca PD and remains in their custody to date. TO Wit: a 2005 Mitsubishi Lancer VIN # ------------------------------ (Ex. “A”) 6. A the time of the warantless seizure of defendants vehicle he was not served with any written notice of seizure nor was he served by mail of any notice of intent to seize the subject vehicle by the
  3. 3. police or the District Attorney 7. Pursuant to the landmark case of Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002) and its progeny, When the police take a car, they must give both driver and owner (if different people) a vehicle seizure form explaining the defendants rights to a hearing. 8. The Police must provide this notice two times – at the time the car is taken and again by mail. See Krimstock, Supra 9. Herein, defendant was not given notice at the time of his arrest nor has he been noticed by mail. 10. Pursuant to Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002), the remedy where no notice is given is return of the accused's vehicle pending any civil forfeiture action by the authorities. 11. CLIENT has no other means of transportation beside his vehicle. 12. CLIENT is gainfully employed by UPS and has been so for the past 5 years. 13. CLIENT needs his vehicle to travel back and forth to his job at UPS from his home, and it is a severe hardship for him to be without his vehicle during the pendancy of the instant criminal case. WHEREFORE YOUR AFFIRMANT MOVES THIS COURT FOR AN ORDER : I. AN ORDER RELEASING DEFENDANT'S VEHICELE FROM POLICE CUSTODY A 2005 MITSUBISHI LANCER Registered and titled to CLIENT II. Such other relief as the court deems just and proper. Affirmed under penalty of perjury this ___ day of _____________ 2013 _____________________________ J JOHN SEBASTIAN ESQ