UPON the Order to Show Cause dated November 8, 2013, based upon letter application of Hyun Chin Kim, Esq. Assistant County Attorney for the County of Orange, dated November 8, 2013, the letter of Anthony M. DeFazio, Esq., attorney for defendant, dated November 6 [sic], 2013, the letter of Hyun Chin Kim, Esq., dated November 8, 2013, the letter of Anthony M. DeFazio, Esq., dated November 6 [sic], 2013, the letter of Anthony M. DeFazio, Esq., dated November 8, 2013, the oral arguments made in open Court on November 19, 2013 by Hyun Chin Kim, Esq. in support of the application and by Anthony M. DeFazio, Esq. in opposition, the Reply Affirmation of Hyun Chin Kim, Esq., dated November 21, 2013 and upon all the papers and proceedings had herein, the County Attorney's application is decided as follows:

On March 16, 2011, following his conviction for Driving While Intoxicated in the Town of Fishkill Justice Court, Dutchess County, the above-named defendant, a County of Orange and Town of Newburgh resident, was sentenced by Hon. Harold D. Epstein to, inter. alia., three [*2]years probation. Pursuant to CPL §410.80, Judge Epstein signed an Order of Intrastate Transfer of Probation Supervision transferring probation supervision to the County of Orange. The Transfer Order was transmitted to the Orange County Probation Department on March 29, 2011 and transfer was thereafter accepted by the Orange County Probation Department.

Defendant has been supervised by the Orange County Probation Department continuously from May 9, 2011 until the present time. It should be noted that the Town of Newburgh Justice Court exercised jurisdiction over defendant's case on at least two occasions after the Transfer Order was signed. This Court opened a file on this defendant on April 25, 2011 after receiving a Notification to Court and District Attorney, dated April 18, 2011, signed by Orange County Probation Officer Paula Poloniak advising the Court that defendant failed to timely install an ignition interlock device (IID) in the required vehicle. On May 2, 2011, the file was closed upon notification by Officer Poloniak that the IID was installed in defendant's vehicle. On July 15, 2013, Orange County Probation Officer Bernadette Bergin sent a letter to the Town of Newburgh Justice Court seeking Court authorization for defendant to travel to Montenegro to visit his mother. On July 16, 2013, this Court granted permission for defendant to travel to Montenegro.

Notwithstanding that defendant's probation was transferred to Orange County, that defendant has been supervised, solely and exclusively, by the Orange County Department of Probation and that this Court has exercised jurisdiction over the matter, in early 2012, defendant's attorney made an application to the Town of Fishkill Court for a modification of the terms and conditions of his probation to enable him to re-apply for his driver's license. The Town of Fishkill Court granted the application. Thereafter, the County Attorney for the County of Orange moved to vacate the modification order contending that the Town of Fishkill Court had no jurisdiction to modify the terms of defendant's probation because probation was transferred Orange County. In a Decision dated August 27, 2012, Town Justice Epstein held that he retained jurisdiction over the matter. His determination was based on the fact that the Transfer Order did not specify the name of the receiving Court as required by law and, in addition, that the Town of Fishkill Court did not transmit it's file to a receiving Court and, therefore, the transfer was not effectuated.

Section 410.80(2) of the Criminal Procedure Law provides:

Transfer of Powers

(a) Upon completion of transfer of probation as authorized pursuant to subdivision one, the probation department in the receiving jurisdiction shall assume all powers and duties of the probation department in the jurisdiction of the sentencing court. Upon completion of transfer, the appropriate court within the jurisdiction of the receiving probation department shall assume all powers and duties of the sentencing court and shall have sole jurisdiction in the case including jurisdiction over matters specified in article twenty-three of the correction law. Further, the sentencing court shall immediately forward its entire case record to the receiving court (emphasis added.)

Based on the clear language of the Criminal Procedure Law, the Court finds that the Town of Fishkill Court had no jurisdiction or authority to modify defendant's terms and conditions of probation. The Court further finds that the arguments raised by defendant and relied on by the Town of Fishkill Court in its attempt to retain jurisdiction are without merit and [*3]have been rejected by caselaw. In People v Perry, 188 AD2d 909, lv. app. den. 81 NY2d 975, the Appellate Division specifically held that the failure to list the name and address of the receiving court on the probation transfer order was, "at best ministerial" and did not affect the jurisdiction of the Court to which the case was transferred (See, also People v Roberts-Alexandrov, 102 AD3d 219). Further, at least one reported case rejected Judge Epstein's reasoning and held that the sending court's failure to transmit its file to the receiving court is a ministerial error which did not affect the validity of the transfer (See, People v Buyce, 134 Misc 2d 31).

Notwithstanding the above, defendant contends that this Court and the parties are bound by the Decision of the Town of Fishkill Court on the ground that the Decision constitutes "the law of the case". The doctrine of "the law of the case" was developed to avoid the re-litigation of issues already determined within it. (See, State of New York Higher Education Services Corp. v Starr, 158 AD2d 771, Siegel, New York Practice, 5th Edition, p. 781). However, the doctrine pre-supposes that there was a jurisdictional basis for the original decision. The Court of Appeals held that a judgment rendered jurisdictionally and unimpeached for fraud shall be conclusive, as to the questions litigated and decided, upon the parties thereto (See, Ryan v. New York Tel. Co., 62 NY2d 494 [1984], Fulton County Gas & Electric Co. v. Hudson River Tel. Co., 200 NY 287, emphasis added). Since, in the present case, the Town of Fishkill Court did not have jurisdiction to act, its Decision has no biding affect on this Court or the parties.

The Court notes that this Decision and Order is wholly consistent with the legislative scheme and intent underlying the enactment and revisions to CPL §410.80 which was to have supervision of a defendant's probation at or near defendant's place of residence and to have issues relating to said supervision determined by a Court located at or near defendant's place of residence.

Based upon the foregoing, it is hereby Ordered that the application by the County Attorney for the County of Orange is granted to the extent that the original Order and Conditions of Probation dated March 16, 2011 shall remain in effect except the Order and Condition of Probation preventing defendant from re-applying for his driver's license which, in the interest of justice, is deleted.

The aforesaid constitutes the Decision and Order of the Court.

Dated:November 26th, 2013

Newburgh, New York

s/___________________________________________

HON. RICHARD CLARINO

Town Justice, Town of Newburgh