Declaration of Jonathan S. Gould, Esq. for summary judgment motion for Plaintiff in Civil Rights...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------------------ x

BETTY POSNER

-against-

THE CITY OF NEW YORK SERGEANT

Plaintiff DECLARATION OF JONATHAN S GOULD ESQ IN OPPOSITION TO DEFENDANTS MOTION FR SUMMARY JUDGMENT

CHRISTOPHER KOCH Shield 2875LIEUTENANT COSTELLO CAPTAIN STEVEN BRAILLE POLICE CHIEF BRIAN CONROY SGT McATEER POLICE 11 Civ 4859 (JFM) DETECTIVE LISA P ASKEWITZ Shield 5865 UNDERCOVER POLICE OFFICER 2948 (previously 4325) UNDERCOVER POLICE OFFICER 3026 (Previously 2015) POLICE OFFICER VINCENT KONG UNDERCOVER POLICE OFFICER 506 UNDERCOVER POLICE OFFICER 5732 UNDERCOVER POLICE OFFICER 5372 and POLICE OFFICERS JOHN DOES 1-10 (names and number of whom are unknown at present and other unidentified members of the New York City Police Department)

Defendants

------------------------------------------------------------------------------ x

JONATHAN S GOULD ESQ an attorney duly admitted to practice in the

State of New York and the Southern District ofNew York declares under penalty of perjury and

pursuant to 28 USC sect 1746 that the following statement is true and correct

1 I am admitted to practice as an attorney and counselor-at-law in the State ofNew

York and the Southern District of New York since 1989

2 I am not an attorney of record for Betty Posner Louis Posner or any other party in

this action in the Southern District of New York

3 I represented non-party Louis Posner and his wife plaintiff Betty Posner as

Defendants-Respondents in an appeal to the Appellate Division First Department State of

New York by Appellant the New York City Police Department wherein the New York City

Police Department appealed a ruling from the judge presiding over the prosecutions of Louis

Posner and Betty Posner that the New York City Police Department was required to pay for

Louis and Betty Posners criminal defense attorneys and expert witnesses from the money that

was seized from them by the New York City Police Department when they were arrested

4 I reviewed the entire file related to Louis Posners underlying criminal case as part

of my representation of him in the appeal and am familiar with the facts that led to his guilty

plea on April 13 2010

5 I make this Declaration based on my familiarity with the Court papers legal

documents and correspondence in the underlying criminal case and the legal issues and facts

raised in this post-conviction appeaL (A copy of the Brief for Defendants-Respondents Louis

Posner and Betty Posner is annexed as Exhibit A)

6 By way of background at the time that Louis Posner and Betty Posner were arrested

on July 17 2008 the NYPD and the District Attorneys Office had already seized all of their

money that was saved in their personal bank accounts bank accounts formed for corporations

they owned and any cash they had in safety deposit boxes

7 Louis Posner and Betty Posner were thus left without any funds to retain criminal

defense attorneys post bail or to pay their personal bills

8 The New York City Police Departments civil forfeiture unit did not commence civil

forfeiture proceeding related to the seized money pursuant to Article 13A of the CPLR

2

Therefore the District Attorneys Office (with the approval of the State Supreme Court) agreed

to pay for Louis Posner and Betty Posners criminal defense attorneys fees and expenses

associated with the prosecution brought against them

9 Mr Posners attorneys later obtained Court approval for payment from seized funds

ofa forensic accountant Kessler International and an investigator The McGroup Ltd to assist

in his defense as they were necessary in order to defend Mr Posner against felony money

laundering charges and promoting prostitution charges brought against him

10 The investigator Margaret Clemens of The McGroup Ltd interviewed various

employees and dancers from the Hot Lap Dance club (the Club) all of whom denied that there

was any prostitution or illegal activity at the Club

11 The Investigator reported that

[Valerie] said that the raid [was] heavy handed and ntotally unnecessary She was interviewed by [prosecutor] Hurley and told him that there was no prostitution going on in the club and that the rooms were monitored Posner never told her to do anything improper and instead was clear about the rules with the customers

II [Lisa Murray] said that she worked [at the HLD Club] for about 15 years and had previously worked at Scores and VIP [gentlemens club] She said that Posners club had a much better environment than those places and said that there was no prostitution at Posners place She said that the great majority of the girls were decent and hardworking and added that she never got the impression that there was prostitution She said that Posners staff was very vigilant and monitored the rooms and all club areas She said that they were very watchful of the girls She said that Posner sent out emails every day to the staff and that frequently the mails referenced the rules as well as other information

[Hanna Nelson] said that the charges of prostitution are completely bogus and said that the club was clean and very well run and that she never saw any prostitution She said that when Lou hired her he told her the rules in very clear terms which included absolutely no genital touching by either person at any time what so ever including over the clothing genital touching She said that he made it very clear that no touching is allowed and that security is on hand to

3

remove any customer who will not accept the rules She said that security walked around the club all of the time watching for groping and stopping it when it was observed She indicated that the dancers do not want to be groped and want the security to stop the customers from doing thatShe said that she had attended meetings before work to go over certain rules and address certain rules and that early on in her employment which included announcements about the evening and an overview of the no genital touching rule She said that she would not work in a brothel and would have reported any prostitutionShe said that any claim that Lou pushed girls into crossing that line into prostitution is completely bogus

[Marina Bakali] said that the rules for the dancers were very clear in terms of touching and what was not allowed She said that she would never work in a brothel and clearly stated that this club was a well-run club with clear rules in place and enforced as much as humanly possible She said that she attended staff meetings where the rules of touching were reiterated to include absolutely no genital touching of any kind by anyone and also warnings about prostitution

[Steve AsIan] said that the rules were very clear about touching in that there could be absolutely no crotch touching at all by either the dancer or customer He said that the rooms were checked regularly to insure that all of the dancing was clean He said that there were staff meetings every week or so and the rules were gone over again AsIan said that HLD was a good and clean club and better than most

[Paul Stutz] said that Lou ran these interviews and was very clear about the rules which included no genital contact at any point by either party Additionally these clearly spelled out rules included no prostitution and no improper contact He said that Lou was very clear about the rules with the girls and that the girls all knew the rules He also said that the food was also very good and the place was a completely drug free zone He said that there was no prostitution going on there and added that it was a decent club with an over the top raid which was completely unnecessary [See Letter from Margaret Clemens the McGroup Ltd dated September 14 2009 annexed as Exhibit B]

12 On October 1 2009 the State Supreme Court also heard Mr Posners application to

temporarily receive living expenses from the seized funds because Louis and Betty Posner were

experiencing severe fInancial diffIculties as a result of the seizure of their fInancial assets by the

New York City Police Department

13 At the hearing criminal defense attorney Robert Fogelnest argued that

4

Mr Posner at this point cant enter any kind of plea And the reason he cant enter any kind of plea is that he is under severe economic duress (TR 101112009 p 8) [A copy of the Transcript dated October 12009 is attached as Exhibit C]

If he were to plead and you were to ask him has anyone threatened you his response would be [yes] I am threatened with starvation because the prosecutor [and the police have] improperly taken this money (TR 10112009 pp8-9)

[The prosecutions] theory is that [they] can tie up all of this money and force Mr Posner into a situation where ifhes going to pay his rent hes going to have to plead guilty in order to get some money back (TR 10112009 p 10)

14 The State Supreme Court granted Louis Posner a temporary monthly living expense

allowance from the seized funds due to the Posner familys dire financial circumstances

15 Thereafter by letters dated June 92009 and October 8 2009 the District Attorneys

Office offered Mr Posner a plea offer to plead to a single misdemeanor charge of Promoting

Prostitution in the Fourth Degree or Attempted Money Laundering in the Fourth Degree See

Exhibit ltOD

16 Mr Posner refused to accept the governments plea offer because he maintained at

that point that he had done nothing wrong and that the government lacked any evidence that he

had committed a crime

17 After Mr Posner rejected the governments plea offer in January 2010 the NYPD

unilaterally refused to honor any of the State Supreme Court Orders for the payments of the

criminal defense attorneys fees for Louis Posner and for Betty Posner expert fees for the Mr

Posners forensic accountant and private investigator- all necessary for a proper criminal

defense and the Court Orders for living expenses for Mr Posner to support his family

18 On March 22010 Mr Posners criminal defense attorney Joseph Bondy wrote to

the State Supreme Court that

5

The attorneys the investigator and the forensic accountant have all stopped working on the case pending resolution of this matter Consequently we request that the Court schedule a status hearing as soon as possible (A copy of the Letter dated March 22010 is annexed as Exhibit E)

19 Furthermore on March 8 2010 the Assistant District Attorney filed a motion to

disqualify attorneys Joseph Bondy and Robert Fogelnest from continuing their representation of

defendant Louis Posner (See Motion by the People to Disqualify Defendants Attorneys dated

March 82010 annexed as Exhibit F)

20 The ADAs Affirmation in support oftheir application to disqualify Mr Posners

attorneys stated that

Mr Bondy and Mr Fogelnest entered this case in early August 2009 and immediately began demonstrating that their overriding concern was the payment of their fees from the fimds seized by search warrants in this case The majority of their submissions to the Court from then until now have been petitions for payment of their fees from the seized funds

The billing by Mr Bondy and Mr Fogelnest also suggests that they are primarily concerned with payment rather than representation

Now Mr Bondy has presented even more concrete evidence that the attorneys financial interest in the case takes precedence over their representation of Mr Posners interests In Mr Bondys latest letter to this Court dated March 2 2010 he writes that he and Fogelnest as well as the investigator and the forensic accountant they arranged for have stopped working on the case pending a ruling to pay their additional fees from seized fimds

By stopping working Bondy and Fogelnest have jeopardized their ability to prepare adequately for the trial of the case which is calendared for a date certain ofAprill less than a month away This action is contemptuous of the express order of the Court directing the attorneys be ready to proceed on April 1

As important this action constitutes a lapse in representation which deprives Mr Posner of his Sixth Amendment right to effective assistance of counsel The suspension of work thus is evidence of an actual conflict of interest which the client cannot waive which should disqualify the attorneys from continued representation of Mr Posner [Citations omitted]

6

21 The investigator and forensic accountant were necessary expert witnesses at Louis

Posners upcoming criminal trial

22 The final invoice from the forensic accountant reflects that no further work was ever

performed on Mr Posners case beyond February 25 2010 (See invoice of Kessler

International dated March 6 20 I 0 annexed as Exhibit G)

23 While an attorney may not withdraw from employment in a pending case without the

permission of the Court the State Court lacked judicial authority to compel the forensic

accountant and the investigator to continue working without payment on Mr Posners criminal

case and pending trial

24 On March 152010 just two weeks before a scheduled State Supreme Court criminal

trial date on April 1 2010 counsel for the New York City Police Department obtained an ex

parte temporary restraining order (TRO) from the Court allowing the NYPD to refuse payment

of all Court Orders to release seized monies that were awarded Defendant Louis Posners

criminal defense attorneys forensic accountant and investigator and for Defendant Louis

Posners necessary living expenses NYPDs legal counsel obtained the TRO by misrepresenting

to the State Court the applicable law regarding the State Supreme Courts jurisdiction over assets

seized in a pending criminal case

25 In 2008 and 2010 Mr Posner had also made anonymous confidential and privileged

whistle-blower complaints to the NYPD Internal Affairs Bureau (lAB) alleging that the

professional security staff at the HLD Club had informed him that two police officers from the

NYPD Vice Enforcement Unit attempted to extort substantial sums of cash from the HLD Club

and threatened that if the payments were not made that NYPD Vice would shut down the HLD

7

Club arrest all of the staff arrest Mr Posner and his wife Betty Posner and seize all of the

Posners bank accounts

26 Mr Posner also alleged that reliable sources told him that another Manhattan

gentlemens club had bribed NYPD Vice to close down Mr Posners gentlemens club because

it was popular and they wanted to eliminate it as competition

27 At the voluntary in-person interview at the NYPD Internal Affairs Bureau Mr

Posner gave hours of detailed testimony and a written memorandum regarding his allegations of

corruption including allegations ofwidespread corruption bribery and extortion between NYPD

Vice and Manhattans gentlemens clubs

28 On March 23 20 1 0 just one week before Mr Posners scheduled criminal trial of

Aprill 2010 Mr Posner was arrested by the New York City Police Department for filing an

alleged false complaint with the Internal Affairs Bureau about the police corruption at the

NYPD

29 Mr Posner was served in the Criminal Court with three new misdemeanor charges

consisting of two counts of falsely reporting an incident and one count of offering a false

instrument for filing

30 This criminal statute is normally applied in situations such as a person files a false

police report claiming a robbery or theft so that they can fraudulently collect insurance proceeds

See Homenick v Ward 162 AD2d 135 (1st Dept 1990) (filing false police report that car was

stolen)

31 However Mr Posners was criminally charged for a complaint he filed with the

Internal Affairs Bureau of the NYPD the very governmental agency which was expressly set up

to investigate citizens complaints ofpolice misconduct and corruption

8

32 The predecessor statute PL sect 728 filing of a false police report was enacted for

the purpose ofprotecting private citizens from false accusations and the resultant embarrassment

annoyance and aggravation People v Komos~ 47 Misc2d 634 (Cty Ct Cty Kingston NY

1965) Mr Posners complaint to lAB complaint was against unspecified police officers not

private citizens

33 In other jurisdictions the alleged crime offiling of a false police report against the

police has been held to be unconstitutional as a violation of the First Amendment or

discriminatory prosecution against public policy See

(a) Pena v Municipal Court 96 CalApp3d 77 (Ct ofAppeals 5th Dist Cal 1979) (Defendants conviction for filing a false complaint against the police was dismissed on the grounds ofa discriminatory prosecution Legislature did not intend a citizens complaint to a law enforcement entity concerning the conduct of that entity or its officers to be a criminal offense as statute mandating that law enforcement agencies establish a procedure to investigate citizens complaints against their officers indicated its desire that such complaints are to be encouraged)

(b) Hamilton v City of San Bernardino 325 FSupp2d 1087 (Dist Ct CD Cal East Div 2004) (California statute making it a misdemeanor for a person to knowingly file false misconduct allegations against a police officer was facially unconstitutional as a violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment)

(c) State v Crawley 789 NW2d 899 (Minn Ct Appeals Sept 28 2010) (Minnesota statute that criminalizes knowingly communicating false information regarding police only when that communication alleges misconduct violates the First Amendments prohibition against viewpoint discrimination)

34 Every year there are tens of thousands ofcomplaints to lAB about police

misconduct It is unheard of for a citizen to be arrested by NYPD lAB for filing a [false]

complaint against the NYPD The overwhelming majorities of these complaints to lAB are not

investigated or are dismissed due to lack of evidence See NYPD Confidential The New York

9

Times March 262010 1 (In 2006 the [Internal Affairs] department received nearly 45000 tips

and investigated 1057 about 2 percent)

35 Many of the practices of the NYPD lAB have come under scrutiny See

(a) Experts Say NY Police Dept Isnt Policing Itself The New York Times November 22011 (Internal Affairs Bureaus spotty record of uncovering major cases involving crooked officers raise questions about the departments ability to police itself)2

(b) Can They Police Themselves The New York Times Editorial Nov 6 20113 (A series of scandals and crimes - very few of them uncovered by the New York Police Department - should leave no doubt that New York needs a strong independent agency to investigate serious complaints about the citys police)

(c) Dirty Little Secrets in NYPDs Internal Affairs Bureau Witch hunts injustice andjust plain incompetence in the secretive police-department-within-ashydepartment The Village Voice Dec 120104 (all lAB complaints are supposed to be confidentiaL II to prevent retaliation)

(d) Officers Exhorted to Report Corruption Still Fear Retaliation The New York Times June 24 2012 (Retaliation against NYPD police officers that report police corruption to lAB)

36 After the New York City Police Department stopped payment ofMr Posners

attorneys expert and investigator the District Attorneys having moved to have Mr Posners

attorneys disqualified with a month remaining before Mr Posners criminal trial was scheduled

to begin and after charging Mr Posner with criminal charges for filing a complaint against Vice

with lAB the District Attorneys Office withdrew their previous misdemeanor plea offer to Mr

1 Internet httpwwwnytimescoml20100328nyregionl28iabhtmlpagewanted=allampJ=O

2 Internet httpwwwnytimescoml201111103nyregionexperts-say-ny-police-dept-isnt-policingshyitselfhtmlpagewanted=all

3 Internet httptravelnytimescoml201111107lopinioncan-the-nypd-police-itselfhtmlJ=O

4 Internet htlpwwwvillagevoicecoml201 0-12-0 lInewsinternal-injustice-in-nypd-s-internal-affairsshybureau

10

Posner and presented him with another plea offer wherein the District Attorneys Office offered

a plea to a felony charge instead of the prior misdemeanor charge and then tacked on three new

misdemeanor charges for his complaint to lAB against Vice (See Letter dated March 22 20 I 0

annexed as Exhibit H)

37 The DAs plea offer of March 22 20 I 0 requested that the attorneys and experts for

Louis Posner waive their right to be paid any of their professional fees and expenses from the

funds seized and held by the NYPD Thus Louis Posners attorneys were placed in the

untenable position of having to negotiate for their own fees while representing a client in a

criminal case Louis Posner never signed a written waiver ofthis clear conflict of interest with

his attorneys

38 After having been released from bail on his own recognizance for 20 months Mr

Posner was jailed by the New York City Police Department and the District Attorneys Office

threatened to request that his bail which Mr Posner could not afford be reinstated

39 Mr Posner faced being incarcerated during the criminal trial thus preventing him

from working closely with his attorneys prohibiting Internet access and preventing Mr Posner

from making any living which would cause his family to be evicted from their apartment

40 Since these were new criminal charges not covered by the initial legal retainer with

Mr Posners criminal defense attorneys Mr Posner had no financial means to pay for his

defense on these charges and the NYPD was wrongfully refusing to pay Court Ordered legal

fees from seized assets

41 Due to NYPDs refusal to comply with Court Orders to release any funds from seized

assets Mr Posner also lacked the financial resources to pay his criminal defense attorneys and

for bail on these new misdemeanor charges

II

42 Louis Posner was injail on these new misdemeanor charges on March 232010 the

very same day that he pled guilty to felony promoting prostitution and the new misdemeanor

charges

43 Louis Posner pled guilty on March 232010 at which time his criminal defense

attorneys and expert witnesses were not being paid as a result of the wrongful conduct ofthe


44 It is naIve to think that Mr Posners attorneys would be providing an adequate legal

defense if the case had gone to trial without any guaranty ofpayment of their past current and

future legal fees

45 Mr Posners expert witnesses who were needed for trial had abandoned his case due

to nonpayment

46 Mr Posner was faced with a Hobsons choice ofpleading guilty to a felony which

results in automatic disbarment and allocuting to facts prepared by the prosecutor or going to

trial with a criminal defense that was severely crippled by the malicious conduct ofthe NYPD

47 As part of the plea negotiations the prosecutors sole concession was that the

attorneys and experts retained their right to collect their professional fees subject to a judicial

determination by the State Court Judge

48 On April 132010 after Mr Posner had pled guilty the State Supreme Court issued

a memorandum Decision and Order requiring the legal fees expert fees and living expenses be

paid from seized funds (See Decision and Order of Judge Obus [the Decision and Order]

annexed as Exhibit I)

49 The State Supreme Court in issuing the Decision and Order was mindful ofthe

inequity of luring the defense into trial preparation expenditures without ultimate payment

12

50 The Decision and Order cited the case of People v Martinez 151 Misc2d 641 648shy

50 (Sup Ct NY Co 1991) in which the NYS Supreme Court held that if a prosecutor fails to

provide for funds from seized assets to further a criminal defendants Sixth Amendment right to

counsel that the prosecutor should be sanctioned up to and including dismissing the criminal

charges against the criminal defendant

51 The Court in Martinez stated that

No attorneys fees have ever been provided for out of seized funds and there is no expectation by this court that a prosecutor sua sponte will make provisions for a defendant to have counsel of his or her choice compensated from assets which have been forfeited Therefore a court order to this effect imposing serious sanctions for noncompliance is necessary The imposition of such sanctions on the prosecution to prevent the abridgement of a defendants fundamental constitutional right to counsel ofchoice is well founded in New York State law [Citations omitted]

52 Any interference by law enforcement with a defendants funds needed for a criminal

defense is a serious violation ofthe Sixth Amendment right to counsel under the US

Constitution and the New York State Constitution

53 In People v Martinez 151 Misc2d 641 (Sup Ct NY County 1991) the Supreme

Court held that under New York law a broader Sixth Amendment right to counsel is recognized

than under the federal statutes ie the defendant is accorded a right to counsel ofhis choice he

must be accorded a reasonable opportunity to select and retain counsel Id At 650 (citations

omitted)

54 Martinez stated that

The New York courts however recognize a broader Sixth Amendment right to counsel While the Right to Counsel Clause of the NY Constitution is more restrictive than that of the Sixth Amendment of the US Constitution the New York Court of Appeals has interpreted the NY Constitution to provide far more expansive protection to a defendant than its Federal counterpart [Citations omitted] the Court of Appeals stated So valued is the right to counsel in this State (NY Const art I sect6) it has developed independent of its Federal counterpart (US Const 6th Amdt) Thus we have extended the protections

13

afforded by our State Constitution beyond those of the Federal-- well before certain Federal rights were recognized

55 It is well settled that the New York State Constitution article 1 sect 6 protects an

accuseds right to counsel of choice In People v Martinez 151 Misc2d 641 (1991) the

Supreme Court specifically stated

the People have a duty under the New York State Constitution to obtain a reasonable portion of these forfeited funds for the specific purpose of allowing a defendant to obtain counsel of choice

56 The Court in Martinez went on to state

In computing the total amount which the prosecution must ensure is made to satisfy New Yorks constitutional mandates such funds are limited to the amount which the Court deems to be reasonable attorneys fees in the particular case In each case the court must examine the complexity of the factual and legal issues presented estimate the potential length of the proceedings and order the People to set aside a reasonable amount from which defense counsel of choice may seek compensation Martinez at 6

57 In a federal Court decision involving criminal charges against an international CPA

firm the US Court of Appeals in US v Stein 541 F3d 130 (2d Cir 2009) applied New York

State law and found that

(i) Prosecutors became entwined in the control of the accounting firm to ensure the attorneys fees policy was enforced by intervening in accounting firms decision making

(ii) The government must honor a defendants Sixth Amendment right to counsel which means more than simply that the state cannot prevent the accused from obtaining the assistance of counsel

(iii) The Sixth Amendment also imposes on the state an affirmative obligation to respect and preserve the accuseds choice to seek this assistance and at the very least the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel

(iv) Government unjustifiably interfered with indicted accounting firm employees relationship with counsel and their ability to defend themselves in

14

accounting fraud proceeding by forcing accounting firm to implement fee policy terminating legal fee advancements to employees upon indictment and therefore employees were deprived of their Sixth Amendment right to counsel

(v) Dismissal of indictment would be required to cure any violation by the government of employees Sixth Amendment right to counsel

58 The Decision and Order held that the Police Department is directed to comply with

all payment orders issued by the Court

59 Instead of complying with the Court order the NYPD filed a Notice of Appeal on

April 26 2010 further delaying the ultimate payments

60 More than a year later on July 72011 the Appellate Division affirmed the State

Supreme Court Decision and Order and ordered the NYPD to pay all of the legal fees and costs

(See People v Posner 86 AD3d 443 (1st Dept 2011) (the Appellate Decision] annexed as

Exhibit J)

61 The Appellate Decision determined whether the New York City Police Department

should be required to comply with the Orders of the Hon Michael Obus to pay from seized

assets the Posners attorneys fees expert fees and living expenses The Appellate Division

unanimously affirmed the Decision and order of Judge Obus on both statutory grounds under the

Criminal Procedures Law and on the equitable powers of a State Supreme Court Judge

62 While the Appellate Decision was limited to the issue of payment of attorneys fees

and costs from seized assets the Appellate Division necessarily determined that the New York

City Police Department wrongfully withheld monies needed for Mr Posners legal defense in a

pending felony criminal trial

63 The realities of litigation are that the NYPD significantly interfered with

Defendant Louis Posners Sixth Amendment right to counsel of choice and Louis Posner did not

have a full and fair opportunity to defend himself in the criminal proceedings

15

64 NYPDs contumacious refusal to comply with Court Orders for payments of fees and

expenses from seized assets unfairly interfered with Louis Posners Constitutional rights where

(i) Louis Posners criminal defense attorneys cannot be paid their legal fees for a pending felony case approaching trial

(ii) Louis Posners expert witnesses at trial an investigator and forensic accountant retained by his criminal defense attorneys cannot be paid their professional fees for a pending felony case approaching trial

(iii) Louis Posner has been denied living expenses and lacks the money for living expenses including bail on new charges brought by the NYPD lAB against the NYPD Vice and

(iv) Louis Posners criminal defense attorneys could not be paid legal fees for the new criminal charges alleging the filing of a false police report against NYPD Vice

65 As a result of the Appellate Decision in July 2011 the NYPD was finally forced to

comply with the Court Orders to pay the criminal defense attorneys the forensic accountant the

investigator and necessary living expenses from seized funds in the aggregate amount of

$15497435 (See Summary of Court Orders annexed as Exhibit K)

66 Following the Appellate Decision Mr Posner wrote to the Legal Aid Society to seek

representation in post-conviction relief because he could not afford a private attorney The Legal

Aid Society denied his request and wrote back that

The Legal Aid Society does not have the type of extensive resources that it would take to investigate your conviction and to represent you in a conviction challenge We regret that we are unable to undertake this (See Letter from Legal Aid Society dated April 4 2012 annexed as Exhibit L)

67 Based on the foregoing Louis Posners conviction by plea was tainted by police

misconduct including blatant violations of his Federal and State constitutional rights and was

made under extreme economic duress and coercion

16

68 Mr Posner was not afforded a full and fair opportunity to contest the criminal

charges against him notwithstanding the formalities of his plea allocution

Respectfully submitted

Dated New York New York May 12013

lONATHAN S GOULD ESQ 603 West 115th Street Suite 198 New York New York 10025

2)531-4852 ~_

17

3 I represented non-party Louis Posner and his wife plaintiff Betty Posner as

Defendants-Respondents in an appeal to the Appellate Division First Department State of

New York by Appellant the New York City Police Department wherein the New York City

Police Department appealed a ruling from the judge presiding over the prosecutions of Louis

Posner and Betty Posner that the New York City Police Department was required to pay for

Louis and Betty Posners criminal defense attorneys and expert witnesses from the money that

was seized from them by the New York City Police Department when they were arrested

4 I reviewed the entire file related to Louis Posners underlying criminal case as part

of my representation of him in the appeal and am familiar with the facts that led to his guilty

plea on April 13 2010

5 I make this Declaration based on my familiarity with the Court papers legal

documents and correspondence in the underlying criminal case and the legal issues and facts

raised in this post-conviction appeaL (A copy of the Brief for Defendants-Respondents Louis

Posner and Betty Posner is annexed as Exhibit A)

6 By way of background at the time that Louis Posner and Betty Posner were arrested

on July 17 2008 the NYPD and the District Attorneys Office had already seized all of their

money that was saved in their personal bank accounts bank accounts formed for corporations

they owned and any cash they had in safety deposit boxes

7 Louis Posner and Betty Posner were thus left without any funds to retain criminal

defense attorneys post bail or to pay their personal bills

8 The New York City Police Departments civil forfeiture unit did not commence civil

forfeiture proceeding related to the seized money pursuant to Article 13A of the CPLR

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14










Exhibit J)













15


















16






2)531-4852 ~_

17










his attorneys














II



charges






future legal fees


to nonpayment













12















omitted)



13















14










Exhibit J)













15


















16






2)531-4852 ~_

17



charges






future legal fees


to nonpayment













12















omitted)



13















14










Exhibit J)













15


















16






2)531-4852 ~_

17















omitted)



13















14










Exhibit J)













15


















16






2)531-4852 ~_

17















14










Exhibit J)













15


















16






2)531-4852 ~_

17










Exhibit J)













15


















16






2)531-4852 ~_

17


















16






2)531-4852 ~_

17






2)531-4852 ~_

17

Declaration of Jonathan S. Gould, Esq. for summary judgment motion for Plaintiff in Civil Rights...

Documents

Transcript of Declaration of Jonathan S. Gould, Esq. for summary judgment motion for Plaintiff in Civil Rights...