Court Grants Defendant's Motion to Dismiss - Multiple Million Dollar Mortgage Fraud Case Dismissed by a Preliminary Hearing Magistrate, According to Kestenbaum Eisner & Gorin LLP

Sep 19, 2011, 18:03 ET from Kestenbaum Eisner & Gorin LLP

LOS ANGELES, Sept. 19, 2011 /PRNewswire/ -- A Los Angeles Superior Court judge (Honorable M.L. Villar De Longoria, Division 41, CJC) agreed today with defense attorney Dmitry Gorin, partner in Kestenbaum Eisner & Gorin, that absent a personal waiver by the defendant, a felony complaint must be dismissed if a preliminary hearing is not held within 60 days of the arraignment.  This is the second time the mortgage fraud case was dismissed. The case was dismissed against all other defendants as well.

An initial felony complaint was filed against Mr. McConville in September of 2009, case # BA332079, the government seeking a $15 million bail.  In the trial court (Honorable Michael Pastor, Dept 107, CJC), the People moved to dismiss the case pursuant to Penal Code section 1385.  The government had alleged a multiple-million dollar mortgage fraud operation against Mr. McConville and others.

The case was then refiled, case# BA361189 . The People sought to continue the preliminary hearing. Mr. McConville's attorney (and all other defense lawyers), Mr. Gorin, objected to a continuance, but the Court overruled the objection and granted the continuance based on a finding of good cause.  At no point did Mr. McConville personally waive his right to a preliminary hearing within 60 days of arraignment.

Penal Code section 859(b) is clear and absolute, absent a personal waiver by the defendant, which did not occur in this matter, a felony complaint must be dismissed if a preliminary hearing is not held within 60 days of the arraignment, whether or not good cause exists.  Any finding of good cause by the Court still did not permit a continuance beyond the 60 days without a personal waiver from the defendant.

Based on California law, Mr. McConville cannot be prosecuted for the same offenses, after a felony case has been dismissed two times. The government is in the process of reviewing their next step in the case.


SOURCE Kestenbaum Eisner & Gorin LLP