what is required in a criminal case to obtain a change in venue, ( new york state)?
In the case of a felony charge of a violation of an order of protection, whereas the issuing judge is the one presiding over the matter, and is prejudiced and familiar with the defendant professionally and personally. what needs to be done to obtain a change in venue to another jurisdiction, so that the defendant may receive a fair trial without a jury??
- 1 decade agoFavorite Answer
I got this from a legal research site:
ABSENT CLEAR EVIDENCE OF NEED FOR CHANGE, PLAINTIFF'S STATUTORILY-GROUNDED CHOICE OF VENUE USUALLY WILL BE RESPECTED
By David B. Hamm, Herzfeld & Rubin, P.C.
General Editor, David L. Ferstendig, Law Offices of David L. Ferstendig, LLC
CPLR 509 grants the plaintiff first crack at the choice of venue. Provided that the plaintiff chooses a county with some basis in the statute, such as a county in which a party resides when the action was instituted (seeCPLR 503(a)), defendants will usually face a daunting task in their effort to transfer venue. However, not all bases for jurisdiction are alike in this respect. One in particular, the "residence" of a foreign corporation authorized to do business in New York (CPLR 503(c)), has received uneven treatment by the courts. A plaintiff choosing venue on that basis should be prepared to defend the choice by showing other contacts with that county.
Right to first choice of venue is valuable because jury verdict results and courts' application of substantive law vary considerably among counties.
The "absolute right" of a plaintiff to choose venue in the first instance has been recognized by the courts. See, e.g.,Grzesiak v. Abraham & Strauss Stores, 72 AD2d 729, 730, 443 N.Y.S.2d 3 (1st Dep't 1979). That right is valuable, indeed. As a practical matter, there are enormous differences in the jury verdict results among various counties, and in the application of substantive law among the departments of the Appellate Division, especially in personal injury claims. See, e.g., Wise, "First Dept.'s Review of Verdicts Faulted," NYLJ, 3/24/98, p.1. It is no secret that savvy downstate personal injury counsel will, if they can, choose venue in Bronx or Kings Counties (upstate attorneys prefer Erie County), nor is it surprising that the vast majority of venue-related appeals involve defendants' efforts to transfer venue from one of those counties to anywhere else
Ever increasing burden of proof to warrant venue change protects plaintiff's choice.
One measure by which the plaintiff's choice is protected is through the exacting evidence required of defendant to show that the convenience of material witnesses warrants a change to another county. While, at one time, merely showing that a transitory cause of action (such as a personal injury negligence claim) arose in another county was deemed sufficient to warrant a change [see, e.g., Creed v. United Hosp., 158 A.D.2d 654, 551 N.Y.S.2d 952 (2d Dep't 1990)], beginning in the 1980's and intensifying over the past decade, courts have increasingly demanded a solid evidentiary showing that there are in fact non-party witnesses who will be inconvenienced by the venue plaintiff chose. See, e.g., Montero v. Elrac, Inc., 300 A.D.2d 9, 751 N.Y.S.2d 432 (1st Dep't 2002); Garcia v. Holland Industries, Inc., 178 A.D.2d 132, 576 N.Y.S.2d 565 (1st Dep't 1991); Stavredes v. United Skates of America, Inc., 87 A.D.2d 502, 447 N.Y.S.2d 478 (1st Dep't 1982).
Now the rule, at least as applied by the Appellate Division, First Department, requires a defendant seeking a change of venue for the convenience of material witnesses to demonstrate (1) the names, addresses and occupations of the non-party witnesses, (2) that they have been contacted by defendant's representatives, (3) that they are willing to testify, (4) the substance of their expected testimony, (5) how such testimony is material to the case, and (6) how those witnesses are inconvenienced by the current venue in a manner which would be alleviated by the proposed change. See Jacobs v. Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 A.D.3d 299, 780 N.Y.S.2d 582 (1st Dep't 2004); Cardona v. Aggressive Heating Inc., 180 A.D.2d 572, 580 N.Y.S.2d 285 (1st Dep't 1992).
--Bias or prejudice of judge
District attorney's speeches, criticizing trial justices, published in newspapers, required removal. People v Grout (1916) 174 App Div 608, 161 NYS 718, app dismd (1917) 222 NY 521, 118 NE 1072.
Civil action against justice for false arrest, brought by defendant, was held not to show that justice was biased against defendant. People v Ullman (1918) 184 App Div 93, 170 NYS 105.
Affidavits, for removal, phrased in identical words and being carbon copies, were insufficient to show bias. People v Hines (1938) 168 Misc 453, 6 NYS2d 2, 6 NYS2d 15 (disapproved on other grounds by People v Ortiz (1984, 4th Dept) 100 App Div 2d 6, 473 NYS2d 288).
Judge's prejudice, expressed on first trial, warranted removal of action from county to supreme court. People v Dormann (1942) 180 Misc 160, 44 NYS2d 266.
Expressed intention of defendant, made in affidavit, to call county judge as material witness, warranted removal of action from county to supreme court. People v McDermott (1943) 180 Misc 247, 40 NYS2d 456.
Unconscious bias, so ingrained as to militate against fairness in trial, is ground for removal. People v Faricchia (1943, Sup) 44 NYS2d 269.
That biased conduct of trial judge presents considerations of law reviewable on appeal does not preclude their being weighed on application to remove trial from county to supreme court in same county. People v Faricchia (1943, Sup) 44 NYS2d 269.
Where trial judge, at close of trial, commented disparagingly on veracity of defendant and his witnesses, his conduct may be considered with other matters on application to remove action from county to supreme court for his bias. People v Faricchia (1943, Sup) 44 NYS2d 269.
Motion to transfer cause to supreme court for bias of county judge who presided at first trial was denied, upon condition that second trial be presided over by another county judge. People v Rockower (1944, Sup) 51 NYS2d 185, app dismd (1948, App Div) 78 NYS2d 767, cert den (1948) 334 US 829, 92 L Ed 1757, 68 S Ct 1327.Source(s): In other words, highly unlikely you will get a change of venue.
- Anonymous1 decade ago
Usually you need to prove one of two things. Either that the defendant cannot receive a fair trial in the allotted area. For example a black man being tried in a conservative white area with a record of legal bias. Or that the current venue has no jurisdiction. For example, mail fraud where there is a conflict between the state were the defendant acted fraudulently and the state where the victims lived.
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