adversary hearing in New York

1973In People v. Abronovits (31 N Y 2d 160,165, supra), the court said: ‘ ‘ The Supreme Court reiterated the need for judicial supervision of seizure of material charged as obscene in Lee Art Theatre v. Virginia ( 392 U. S. 636 ); and although this court has not read that decision as requiring an adversary hearing before a warrant issues (People v. Heller, 29 N Y 2d 319) it has undoubtedly become a settled principle that a Judge must decide preliminarily whether the particular material on which he is asked to authorize seizure is obscene and that this must not be left open to the judgment of the p

1972The Supreme Court reiterated the need for judicial supervision of seizure of material charged as obscene in Lee Art Theatre v. Virginia ( 392 U. S. 636 ); and although this court has not read that decision as requiring an adversary hearing before a warrant issues (People v. Heller, 29 N Y 2d 319) it has undoubtedly become a settled principle that a Judge must decide preliminarily whether the particular material on which he is asked to authorize seizure is obscene and that this must not be left open to the judgment of the police.

1971In A Quantity of Books v. Kansas ( 378 U. S. 205 [1964]) the requirement for a prior adversary hearing before seizure of allegedly obscene books was set forth.

1971Again, in A Quantity of Books v. Kansas ( 378 U. S. 205 [1964]), in striking down an ex parte warrant issued without an adversary hearing the court pointed out that such seizures pose problems not raised by warrants to seize such things as gambling implements and intoxicating liquors.

1973Second, an adversary hearing may be required in an obscenity prosecution prior to police seizure of an allegedly obscene film (cf. Bethview Amusement Corp. v. Cahn, 416 F. 2d 410 [2d Cir., 1969] and Astro Cinema Corp. v. Mackell, 422 F. 2d 293 [2d Cir., 1970] with People, v. Heller, 29 N Y 2d 319 [1971], cert, granted 406 U. S. 916 [1972]).

1973However, the following day, the same Judge ordered the return of the film to defendant, upon the authority of Bethview Amusement Corp. v. Cahn ( 416 F. 2d 410 [1969], cert. den. 397 U. S. 920 ) and Astro Cinema Corp. v. Mackell ( 422 F. 2d 293 [1970]). 1 He directed an adversary hearing prior to the issuance of a new seizure warrant and he signed a subpoena for service upon defendant for the production of the film at such hearing or trial.

1970NECESSITY OE A PRIOR ADVERSARY HEARING The defendants rely on A Quantity of Books v. Kansas ( 378 U. S. 205 ) and Marcus v. Search Warrant ( 367 U. S. 717 ) as authority for their position that a prior adversary hearing was required before the search warrant in the instant case could be issued.

1970NECESSITY OE A PRIOR ADVERSARY HEARING The defendants rely on A Quantity of Books v. Kansas ( 378 U. S. 205 ) and Marcus v. Search Warrant ( 367 U. S. 717 ) as authority for their position that a prior adversary hearing was required before the search warrant in the instant case could be issued.

1979Those cases require an adversary hearing where "a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him” (Wisconsin v Constantineau, 400 US 433, 437 ), in that the basis for the discharge, refusal or failure to hire or rehire "might seriously damage his standing and associations in his community”, or would impose "a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” (Board of Regents v Roth, supra, p 573.) In the absence of statutory mandate or contract, an adversary hearing is no

1976However, the absence of a statutory right to an adversary hearing is not considered relevant in those circumstances when the reason given for dismissal is such' that it might damage an employee’s reputation in the community or impose upon him a stigma or other disability that would restrict his ability to obtain other employment (Board of Regents v Roth, 408 US 564 ; Wisconsin v Constantineau, 400 US 433 ).

1973However, the following day, the same Judge ordered the return of the film to defendant, upon the authority of Bethview Amusement Corp. v. Cahn ( 416 F. 2d 410 [1969], cert. den. 397 U. S. 920 ) and Astro Cinema Corp. v. Mackell ( 422 F. 2d 293 [1970]). 1 He directed an adversary hearing prior to the issuance of a new seizure warrant and he signed a subpoena for service upon defendant for the production of the film at such hearing or trial.

1971Corp. v. Murphy ( 320 F. Supp. 704 [S.D.N.Y. 1970]), held that the seizure was illegal because there had not been a prior adversary hearing on the issue of obscenity as mandated by the United States Court of Appeals for the Second Circuit in Bethview Amusement Corp. v. Cahn, ( 416 F. 2d 410 [2d Cir., 1969], cert. den. 397 U. S. 920 [1970]).

1971The United States Court of Appeals for the Second Circuit recognized this in Astro Cinema Corp. v. Mackell ( 422 F. 2d 293, 298 [1970]) where it stated: “ While a district court has held that the New York statute does not forbid an adversary hearing, Rage Books, Inc. v. Leary, 301 F. Supp. 546 (S. D.

1970In an informative discussion of Rage Books v. Leary ( 301 F. Supp. 546 ), the requirement of a prior adversary hearing has been recently discussed in the New York Law Journal.

1994In People v Crandall ( 51 AD2d 841, 842 [3d Dept]), the Court observed that the Commission’s recommendations cited in Amaro (supra) "only relate to those instances where the commission of a new offense is employed as the predicate for revocation without the issuance of a formal charge by the probation department, the issuance of an arrest warrant, an appropriate notice to appear to the defendant, the assignment of counsel if the defendant cannot afford his [or her] own and the holding of a full and complete adversary hearing.” In the case at bar, a formal charge has been filed by the Probation

1976Herein, all these precautionary steps were employed and it cannot be said that defendant’s rights were prejudiced by any of the procedures below (People v Amaro, 79 Misc 2d 499 ).

1985As we noted in People v Weech (supra), while it is not possible to duplicate a CPL article 730 proceeding after the event, “it is possible to reconstruct the mental capacity of defendant at the time of trial through an adversary inquiry and thus preserve ‘[a]ll the safeguards of a concurrent determination’ (People v Hudson, 19 NY2d, at p 140 )” (People v Weech, supra, p 1086 ).

1984In those cases the Court of Appeals recognized that, although it is impossible to have a posttrial article 730 proceeding, it is possible to reconstruct the mental capacity of defendant at the time of trial through an adversary inquiry and thus preserve “[a]ll the safeguards of a concurrent determination” (People v Hudson, 19 NY2d, at p 140 ).

1975In reliance upon Mitchell v Grant Co. ( 416 US 600 ), it was held that the New York attachment statute affords sufficient safeguards in that it permits an immediate test of the validity of the attachment by motion to vacate, constituting an adversary hearing where the facts are challenged or are in dispute.

1975While Fuentes v Shevin ( 407 US 67 ) seemingly mandates procedural due process requiring notice and an adversary hearing prior to seizure, Mitchell v Grant Co. ( 416 US 600 ) made it clear that in the ordinary repossession situation where you have the problem of balancing creditors’ claims for payment and thé debtor’s interest in uninterrupted possession of goods, it would be sufficient if the creditor furnish adequate security and satisfy the court in a factual showing of the validity of the claim.

1973Ill.], affd. 376 U. S. 782 , supra; and Sokol v. Public Utilities Comm., 65 Cal. 2d 247, 252-256 ; 53 Cal. Rptr. 673 ) and due process requires an adversary hearing or other independent review when First Amendment rights are at stake (Heller v. New York, 413 U. S. 483 , supra; Carroll v. Princess Anne, 393 U. S. 175, 180-182 ; Walker v. Popenoe, 149 F. 2d 511, 513 [D.

1970The defendants further move to vacate the temporary restraining order on the ground that they were not afforded an adversary hearing on the question of the necessity of the restraints imposed, and rely on Carroll v. Princess Anne ( 393 U. S. 175 ).

1970(Bethview Amusement Corp. v. Cahn, supra; Interstate Circuit v. Dallas, 390 U. S. 676 ; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 ; United States v. A Motion Picture Film, 404 F. 2d 196 ; Metzger v. Pearcy, 393 F. 2d 202 ; Tyrone Inc. v. Wilkinson, 410 F. 2d 639 .) It is therefore well established that the defendants’ constitutional rights under the First and Fourteenth Amendments of the United States 'Constitution were violated by the absence of an adversary hearing on the question of obscenity prior to the seizure.

1970(Interstate Circuit v. Dallas, 390 U. S. 676 ; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 .) It is this which makes necessary an adversary hearing preliminary to the issuance of any warrant of seizure of a film.

1970(Bethview Amusement Corp. v. Cahn, supra; Interstate Circuit v. Dallas, 390 U. S. 676 ; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 ; United States v. A Motion Picture Film, 404 F. 2d 196 ; Metzger v. Pearcy, 393 F. 2d 202 ; Tyrone Inc. v. Wilkinson, 410 F. 2d 639 .) It is therefore well established that the defendants’ constitutional rights under the First and Fourteenth Amendments of the United States 'Constitution were violated by the absence of an adversary hearing on the question of obscenity prior to the seizure.

1970(Interstate Circuit v. Dallas, 390 U. S. 676 ; Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 .) It is this which makes necessary an adversary hearing preliminary to the issuance of any warrant of seizure of a film.

2013Inc. ( 33 AD3d 67 [2006], supra), with equal application to the present case: “Although defendants’ attorneys have attached their legal bills in order to establish the appropriate amounts, we deem it prudent to afford plaintiff and its counsel an opportunity to challenge the significant amounts requested at an adversary hearing.” (Id. at 75.) For other pertinent cases containing a good discussion of the award of reasonable attorney’s fees in the context of a sanction award made pursuant to 22 NYCRR part 130, see Timoney v Newmark & Co. Real Estate ( 299 AD2d 201 [2002], lv dismissed 99 NY2d 61

2013Inc. ( 33 AD3d 67 [2006], supra), with equal application to the present case: “Although defendants’ attorneys have attached their legal bills in order to establish the appropriate amounts, we deem it prudent to afford plaintiff and its counsel an opportunity to challenge the significant amounts requested at an adversary hearing.” (Id. at 75.) For other pertinent cases containing a good discussion of the award of reasonable attorney’s fees in the context of a sanction award made pursuant to 22 NYCRR part 130, see Timoney v Newmark & Co. Real Estate ( 299 AD2d 201 [2002], lv dismissed 99 NY2d 61

2013Inc. ( 33 AD3d 67 [2006], supra), with equal application to the present case: “Although defendants’ attorneys have attached their legal bills in order to establish the appropriate amounts, we deem it prudent to afford plaintiff and its counsel an opportunity to challenge the significant amounts requested at an adversary hearing.” (Id. at 75.) For other pertinent cases containing a good discussion of the award of reasonable attorney’s fees in the context of a sanction award made pursuant to 22 NYCRR part 130, see Timoney v Newmark & Co. Real Estate ( 299 AD2d 201 [2002], lv dismissed 99 NY2d 61

2013Inc. ( 33 AD3d 67 [2006], supra), with equal application to the present case: “Although defendants’ attorneys have attached their legal bills in order to establish the appropriate amounts, we deem it prudent to afford plaintiff and its counsel an opportunity to challenge the significant amounts requested at an adversary hearing.” (Id. at 75.) For other pertinent cases containing a good discussion of the award of reasonable attorney’s fees in the context of a sanction award made pursuant to 22 NYCRR part 130, see Timoney v Newmark & Co. Real Estate ( 299 AD2d 201 [2002], lv dismissed 99 NY2d 61

2013Inc. ( 33 AD3d 67 [2006], supra), with equal application to the present case: “Although defendants’ attorneys have attached their legal bills in order to establish the appropriate amounts, we deem it prudent to afford plaintiff and its counsel an opportunity to challenge the significant amounts requested at an adversary hearing.” (Id. at 75.) For other pertinent cases containing a good discussion of the award of reasonable attorney’s fees in the context of a sanction award made pursuant to 22 NYCRR part 130, see Timoney v Newmark & Co. Real Estate ( 299 AD2d 201 [2002], lv dismissed 99 NY2d 61

2011(Id.) In determining that Louisiana’s scheme of civil confinement in Foucha failed to meet the constitutional requirements it had identified in Salerno , the Supreme Court noted that, unlike the sharply focused statute in Salerno , Louisiana’s scheme of confinement “[wa]s not carefully limited.” ( 504 US at 81 .) The Court pointed out that the Louisiana statute did not afford Mr. Foucha “an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community.” (Id. at 81.) The Court observed that the Louisiana statute at issue did

2007Exclusion of either would threaten “[t]he purpose of an adversary hearing!, which] is to ensure the requisite neutrality that must inform all governmental decision-making” (James Daniel Good, 510 US at 55 ).

2007Exclusion of either would threaten "[t]he purpose of an adversary hearing[, which] is to ensure the requisite neutrality that must inform all governmental decisionmaking" ( James Daniel Good, 510 US at 55 ).

2006Accordingly, on this Court’s own motion, the matter should be remanded to Supreme Court for a determination of the amount of expenses and attorneys’ fees incurred by defendants in responding on the appeal to this Court ( 23 AD3d 259 [2005]) and the motion practice for further appeal ( 6 NY3d 708 [2006]), and for entry of the appropriate judgment as against plaintiff and attorney Matthew Hearle, Esq.

2006Accordingly, on this Court’s own motion, the matter should be remanded to Supreme Court for a determination of the amount of expenses and attorneys’ fees incurred by defendants in responding on the appeal to this Court ( 23 AD3d 259 [2005]) and the motion practice for further appeal ( 6 NY3d 708 [2006]), and for entry of the appropriate judgment as against plaintiff and attorney Matthew Hearle, Esq.

2000Preservation & Dev. — Sweeney], 233 AD2d 645 ), and to rescind its own prior decisions based upon the conclusion that they were erroneous (see, Matter of Boone [Shore Road Community Serv. — Sweeney], supra; Matter of Centrone [Vulcan Fuel Corp. — Roberts], 102 AD2d 969 ).