Attorneys argue over motion notification

Judge orders defense must be notified by state immediately when motions are filed
By Juliette Laaka | Apr 25, 2016

Rockland — A defense attorney has accused the state of willfully filing for a revocation of bail and an arrest without notifying him, calling the maneuver a fraud on the court and saying it intentionally violated his client's constitutional rights.

Defense attorney Jonathan Handelman requested March 31 that the court recall the arrest warrant against his client that was issued by a judge March 17, and said sanctions should be imposed for the breach of procedure by ordering the case be dismissed and the attorney for the state be fined. Handelman said he was not notified of the motion and the warrant requested, which he called "outrageous."

Justice Daniel Billings, hearing arguments from Handelman and Assistant District Attorney Christopher Fernald earlier this month, decided the warrant would be withdrawn, and that the state must notify defense counsel as soon as a motion is filed. He did not issue sanctions, and said the practice did not violate the defendant's rights, as the warrant was not executed.

A hearing on the motion to revoke Handelman's client's bail is scheduled for June.

The argument centers on a motion filed by Fernald to revoke post-conviction bail for Handelman's client, Heath Yeaton, who pleaded guilty to a count of felony theft in November. Sentencing was continued for two years, and the purpose of the continuance was so the defendant would pay $13,000 in restitution he owed the victim. The payment schedule was agreed upon by the defendant and the court at $500 a month. A warrant for his arrest was also filed.

At the time of the filing, Yeaton should have paid $2,000, but had failed to pay any money, Fernald said in the motion. "The foregoing constitutes clear and convincing evidence the defendant has violated conditions of release following the setting of post-conviction bail, which is sufficient for revocation of his bail," the motion states.

The warrant was issued by Judge Susan Sparaco and, according to the motion, a carbon copy was sent to Handelman. But the certificate of service said a copy of the motion would be provided to Handelman or the attorney for the day once the defendant was brought before the court.

Handelman contends he should have been notified once the request was filed, so he could have a chance to speak with his client and suggest he turn himself in.

There was no prejudice to the defendant because the warrant was not executed, and the state's actions were consistent with the court's warning to the defendant as to what would happen if he failed to make restitution payments, to communicate with the district attorney as to why payments could not be made, Billings decided.

However, Billings agreed with Handelman and wrote that it was the court's view that nothing relieved the state of its obligation to serve a copy of a motion for revoked post-conviction bail on the defendant or the defendant's counsel when such a motion is filed.

The plain language of the statute allows an exception to the general rule only when a defendant has been arrested prior to the filing of a motion to revoke, Billings said.

Fernald said by phone April 25 that, reading the provisions of the Title 15, section 1098 of the state statue, a copy must be provided prior to the hearing. He said a majority of the time when the state files a motion to revoke bail, a warrant is also requested. He said providing a copy before the hearing has been the standard practice and in the 13 years he has worked as a prosecutor, there has not been a complaint filed by defense counsel before.

Fernald said if the motion must be sent to the defendant's attorney immediately, then the attorney will notify the client, who may attempt to abscond or avoid law enforcement. "That is the last thing we want to do," Fernald said. The assistant DA said the argument was about fairness, but added that attorneys can direct police to arrest somebody without a warrant if there is probable cause.

Fernald said District Attorney Geoffrey Rushlau will review Billings' order and make a policy determination on how to proceed. Fernald said he will be issuing copies of motions to attorneys as soon as they are filed, per Billings' order.

Reporter Juliette Laaka can be reached at 594-4401 ext. 118 or via email at jlaaka@villagesoup.com.

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