Decision Summary: Peoples application, pursuant to CPL 420.45, for the Court to declare a deed void ab initio, which deed fraudulently transferred certain residential real property in Queens County, is granted. DECISION AND ORDER Procedural History On January 19, 2023, defendant, Jasmine Morgan, pled guilty in Queens County Supreme Court, Criminal Term, Part W50, under Superior Court Information (SCI) number 72587/2022, to one count of Offering a False Instrument for Filing in the Second Degree (Penal Law §175.30), a class A misdemeanor. That same day, in accordance with the negotiated plea bargain agreed to by the parties, this Court sentenced defendant to a one-year conditional discharge. In an affidavit signed by defendant at the time of her plea, defendant swore to the following: On March 6, 2020, Jasmine Morgan appeared at a closing held at 107-06 71st Rd., Queens County, New York, for the residential real property located at 110-18 198th Street, Hollis, Queens, New York, for the purpose of transferring its title and selling all interest in said property from Preston Banks to 110-18 198th Street Corp (see Affidavit of Jasmine Morgan, January 19, 2023, at 1). Though not actually related to him, Ms. Morgan posed as the granddaughter of Preston Banks, a true owner of the property, in order to intentionally participate in the closing and aid in finalizing the real estate transaction (id.). Ms. Morgan held herself out as the granddaughter of Preston Banks to the attorneys representing the seller, the purchaser, and Golden Bridge Funding, who provided Ms. Morgan with the house sale proceeds (id.). Ms. Morgan was aware that an individual posing as Preston Banks signed a letter at the closing stating that Ms. Morgan was Preston Banks granddaughter and that the sale proceeds were a “gift” to Ms. Morgan, as his granddaughter (id.). Ms. Morgan was aware that at the closing a deed was signed by a person purporting to be Preston Banks, and Ms. Morgan is not related to the person that so appeared (id. at 1-2). Ms. Morgan was further aware that the deed signed at the closing by the person purporting to be Preston Banks, to whom Ms. Morgan is not related, was falsely filed in Queens County, with the New York City Department of Finance, Office of the City Register (id. at 2). As a result of her above-described conduct, Ms. Morgan received a check in the amount of one hundred thirty-four thousand five hundred fifty-four dollars and fifty-one cents ($134,554.51) and she cashed that check at a check cashing place in Kings County (id.). At no time did Ms. Morgan ever have any lawful interest or any interest whatsoever in the Property (id.). Now, following defendants guilty plea to Offering a False Instrument for Filing in the Second Degree (Penal Law §175.30), in connection to an instrument that was material to the transfer or purchase of the residential real property located at 110-18 198th Street, Hollis, Queens, New York (hereinafter the “Property”1), to wit: a deed dated March 6, 2020, affecting the rights and interests of the Property, and said deed having been recorded with the New York City Department of Finance, Office of the City Register on March 20, 2020 (hereinafter the “Fraudulent Deed”), the People have moved, pursuant to CPL 420.45, for this Court to declare the Fraudulent Deed void ab initio. The People served their CPL 420.45 motion, dated January 31, 2023, upon all potential interest holders of the Property (see CPL 420.45 [1], [6]), and included a return date in their notice of motion of February 28, 2023, so that any opponents to the motion could appear in court and state their objections to the application during a hearing before the court (see CPL 420.45 [3]). The matter was calendared in Queens County Supreme Court, Part W50, on February 28, 2023, and a hearing was conducted on the Peoples motion. Counsel representing the interests of both 110 18 198th Street Corp. and Golden Bridge LLC d/b/a Golden Bridge Funding LLC (hereinafter “Golden Bridge”) appeared2 in court to oppose the Peoples motion. No other parties with an interest in the Property appeared3. Prior to the hearing date, counsel for 110 18 198th Street Corp. and Golden Bridge filed a cross-motion seeking an order staying the CPL 420.45 proceeding pending final judgment in the related civil action commenced in Queens County Supreme Court, Civil Term, under index number 712991/2020. On February 28, 2023, prior to the commencement of the hearing, oral arguments were held on the cross-motion. This Court denied the cross-motion, noting that holding the CPL 420.45 hearing in abeyance until the entry of final judgment on the related civil action would run contrary to the purpose of this recently enacted statute, and proceeded with the hearing. The parties did not call any witnesses. This Court finds 110 18 198th Street Corp. and Golden Bridges moving papers and the exhibits attached thereto, without more, insufficient to overcome the rebuttable presumption established by the District Attorney that the Fraudulent Deed is void ab initio. Findings of Fact Following the hearing held on February 28, 2023, on the District Attorneys motion pursuant to CPL 420.45, with all interest-holders in the Property having been put on notice, and based upon defendant Jasmine Morgans allocution in connection with her plea of guilty to Offering a False Instrument for Filing in the Second Degree (Penal Law §175.30) on January 19, 2023, this Court makes the following findings of fact: Preston Banks is a rightful owner of the Property by virtue of a deed dated February 20, 2004, and recorded with the New York City Department of Finance, Office of the City Register, on May 7, 2004. On March 20, 2020, the Fraudulent Deed was filed with the New York City Department of Finance, Office of the City Register, transferring the Property to 110 18 198th Street Corp. The Fraudulent Deed contained a forged signature of Preston Banks. The defendant, Jasmine Morgan, was instrumental to this fraudulent deed transfer. As a result of defendant Jasmine Morgans actions, on January 19, 2023, she was convicted of Offering a False Instrument for Filing in the Second Degree (Penal Law §175.30). The District Attorney provided reasonable notice to all persons who have an interest in the property affected by the above-described deeds as defined in CPL 420.45 (6). The Instant Application to Declare the Fraudulent Deed Void Ab Initio (CPL 420.45) The Court is cognizant of the fact that this appears to be a matter of first impression in interpreting and applying the legislative intent of CPL 420.45. Effective August 14, 2019, section 420.45 of the Criminal Procedure Law (CPL) was created to “provide[] for a mechanism under which an aggrieved homeowner can seek to have title restored to his or her property in the event of a criminal conviction in relation to the instrument that transferred the property” (NY St Assembly Sponsors Mem in Support, Bill Jacket, L 2019, ch 167 at 6). As the prime Assembly sponsor of the bill4 that created CPL 420.45 noted in a letter to former Governor Andrew Cuomo in support of the bill, “the bill establishes a process by which a district attorney can file a motion to quiet title in the supreme court of appropriate jurisdiction on behalf of the homeowner following such criminal conviction. Under existing law, an aggrieved homeowner would be required to undertake this procedure themselves after such a conviction, while this significant change of law allows this to be done in conjunction with the district attorney, a swifter and more assured way of allowing the defrauded homeowner to be made whole” (Letter from NY St Prime Assembly Sponsor, July 3, 2019, Bill Jacket, L 2019, ch 167 at 5). Moreover, this bill received strong support from the New York City Bar,5 who noted that “[g]iven the limited legal services resources available to pursue civil actions on behalf of victims of deed theft scams, this amendment will substantially benefit low-income communities” (NY City Bar Assn, Council on Judicial Administration and Task Force on Mortgage Foreclosures, Rep on Legis, Bill Jacket, L 2019, ch 167 at 12). CPL 420.45 (1) provides that: When a defendant has been convicted after trial or pled guilty to violating either section 175.30 or 175.35 of the penal law in connection to an instrument that is material to the transfer or purchase of residential real property, the district attorney may file a motion in the supreme court in the county where the property that is subject to the instrument is located on behalf of the victim to void the instrument that is the subject of such criminal information or indictment. Such motion must be in writing and provide reasonable notice to all persons who have an interest in the property affected by such instrument. The motion papers must state the county or borough, if in the city of New York, and block, lot, street address of such property, and a description of such property. The motion papers must state the grounds of the motion, must contain sworn allegations of fact supporting such grounds, and include a copy of the guilty disposition attached to the document. After the motion is filed, “[t]he supreme court must conduct a hearing and make findings of fact essential to the determination whether to declare the instrument described in subdivision one of this section void ab initio. All persons providing factual information at such hearing must testify under oath. There will be a rebuttable presumption that where a party is convicted after a trial in criminal court or a guilty plea to either section 175.30 or section 175.35 of the penal law in connection with an instrument that is material to the transfer or sale of residential real property, that such instrument is void ab initio” (CPL 420.45 [3] [emphasis added]). The statute additionally outlines notice requirements for the motion (see CPL 420.45 [2]), instructs the court how to proceed in determining the motion and what form the courts order shall take (see CPL 420.45 [4]), guides the district attorney as to how the courts order shall be recorded and how the “recording officer shall record the same in his or her…office” (CPL 420.45 [5]), defines “all persons who have an interest in the property affected by such instrument” (CPL 420.45 [6] [internal quotation marks omitted]), and clarifies that the statute does not limit a “partys right to appeal [the courts] order” (CPL 420.45 [7]). In the instant application, it is uncontested that the People satisfied their procedural requirements under CPL 420.45 to proceed with the hearing mandated by CPL 420.45 (3). Through their motion papers, which were moved into evidence at the hearing along with all motion exhibits and the entire court file as Court Exhibit 1 (tr at 17), the People established that the rebuttable presumption under CPL 420.45 (3), that the Fraudulent Deed is void ab initio, clearly applies to this case. During the hearing, echoing the position taken by 110 18 198th Street Corp. and Golden Bridge in their opposition papers and in their cross-motion, counsel argued that, “in the event that the People are correct about the underlying facts of the matter, [his] clients are victims as much or more than Mr. Banks[,] including the lender who is out hundreds of thousands of dollars and the owner who apparently made substantial renovations to the property as well as ongoing carrying charges” (tr at 10). This Court respectfully disagrees. Whereas 110 18 198th Street Corp. and Golden Bridge have other avenues to seek relief should the Fraudulent Deed be declared void ab initio (e.g., 110 18 198th Street Corp., the buyer, could pursue a fee insurance claim and Golden Bridge, the lender, could pursue a mortgage insurance claim to recoup their funds), if this Court declined to declare the Fraudulent Deed void ab initio, Preston Banks — a true owner of the property along with members of his family — would be left facing protracted civil litigation, at great personal expense, simply to undue the fraudulent conveyance of the Property, a crime that was perpetrated against his and his familys interests. Counsel additionally asserted “that it does not appear…that Jasmin Morgan is the alleged forger. Shes apparently profited from whatever happened here, but it doesnt say that she is the one who forged. And Mr. Banks did choose to file a civil suit which is still ongoing” (tr at 11). The Court notes that nothing in CPL 420.45 requires a forgery conviction in order for the District Attorney to file their motion. To the contrary, the statute is very clear that only convictions under Penal Law sections 175.30 (Offering a False Instrument for Filing in the Second Degree) or 175.35 (Offering a False Instrument for Filing in the First Degree) trigger the District Attorneys ability to file a motion under CPL 420.45 (see CPL 420.45 [1]). Since Jasmine Morgan was convicted by guilty plea of Offering a False Instrument for Filing in the Second Degree (Penal Law §175.30), under SCI number 72587/2022, counsels contention is without merit. Moreover, the fact that Mr. Banks elected to file a civil suit is immaterial to the instant application, and not particularly surprising. CPL 420.45 is a relatively new statute and, prior to its effective date of August 14, 2019, just over seven months prior to the date that the Fraudulent Deed was recorded, Mr. Banks only path to obtaining relief through the courts was by commencing a civil suit. Finally, counsel demonstrated a concern that the legislature failed to consult people in the industry when drafting the statute (see tr at 12) and asserted that “there are a lot of interest[s] in real property that are not of record. For instance, if this bank had paid off a very large prior mortgage, we would have an equitable subrogation claim” (tr at 11). It is this Courts role to enact the will of the legislature, and the will of the legislature is clear — to provide, inter alia, “a swifter and more assured way of allowing [a] defrauded homeowner to be made whole” (Letter from NY St Prime Assembly Sponsor, July 3, 2019, Bill Jacket, L 2019, ch 167 at 5). Accordingly, it is hereby ORDERED, ADJUDGED AND DECREED THAT the Fraudulent Deed filed on March 6, 2020, with the New York City Department of Finance, Office of the City Register, and so recorded on March 20, 2020, is hereby declared void ab initio, in that the Fraudulent Deed was falsely filed by defendant, Jasmine Morgan, acting in concert with others, and said deed was fraudulently signed by someone who stole the identity of Preston R. Banks, that defendant Jasmine Morgan importuned this property transfer by posing as a relative of the purported Preston R. Banks, that the true Preston R. Banks did not give permission or authority for anyone to transfer the Property, and that the signature which appears on the Fraudulent Deed is not his, and it is further ORDERED that the New York City Department of Finance, Office of the City Register, shall note on its records, indexes, and books that the deed dated March 6, 2020, and so recorded on March 20, 2020, under CFRN 2020000103103, and underlying documents are null, void, and of no legal effect, and it is further ORDERED that the Queens County District Attorneys Office shall cause a true, complete, and certified copy of this Order to be recorded with the New York City Department of Finance, Office of the City Register, along with a copy of the deed dated March 6, 2020, and so recorded on March 20, 2020, under CFRN 2020000103103, without undue delay, and it is further ORDERED that upon presentation of a true and complete certified copy of this Order, the Queens County Register is hereby directed to record and index this Order against the subject premises commonly known as 110-18 198th Street, Queens County, New York, Block 10937, Lot 121, and it is further ORDERED that, whereas this Order arises from a criminal prosecution, the New York City Department of Finance, Office of the City Register, is to waive any filing and/or recording fees that would otherwise apply to the recording of a court order. This constitutes the decision and order of the Court. Dated: March 24, 2023
