Tuesday, October 21, 2014
Some Good News For 9/11 First Responders...FealGood Foundation Optimistic But Still Working Hard on Their Behalf
Statement from the FealGood Foundation Regarding the Victim's Compensation Fund's Third Annual Report
Friends – After reviewing the new statistics put out by the VCF today at www.vcf.gov , we at the FealGood Foundation are encouraged and remain optimistic that the VCF has turned the corner in rendering awards to those who have waited to long for compensation. The new statistics show a dramatic increase in award determinations, and we expect another dramatic increase by the VCF’s next Annual Report. The VCF has an obligation to the 9/11 Community at large, and we believe they are closer each day to streamlining a process that will meet the demands of thousands who suffer. While we see the improvement each day, and with each report, we at the FGF will not rest until the VCF meets its goal by 2016. That means working with all parties involved to ensure everyone eligible has been given their just award. The VCF, the Law Firms, the WTC Health Clinics need to continue to work in harmony and continue to keep an open dialogue and share new ideas to implement so we all see this process working at its best.
The FealGood Foundation
Contact: John Feal 631 724 3320/// firstname.lastname@example.org
Tuesday, July 29, 2014
Disputed Witness Statements Obtained by Suffolk Detectives; Tavares and Leser in Another Murder Case?
FREELANCE INVESTIGATIONS' EXCLUSIVE
Allegedly the Accused was Denied Access to An Attorney...Was Never Mirandized and Detectives Allegedly Falsified Statements and Allegedly Attempted to Bribe Witnesses...
A Pattern of Behavior Emerges for Suffolk County Detectives?
Last week a murder conviction was thrown out and a new trial ordered by the judge because the prosecution in the case never revealed the role of two detectives in the case who have been discredited in at least two other cases. And now there is another man sitting in jail, Shawn Lawrence, awaiting trial for a different murder he says he did not commit and he claims the same two detectives also used false and/or coerced witness statements to arrest him in his case.
Both cases involve Brady violations and allegations of false witness statements, according to documents obtained by Freelance Investigations. According to the attorney for the man awaiting trial "Both Detectives Tavares and Leser are involved in the Lawrence case and will be subpoenaed to court if the People do not present them."
The two Suffolk County Detectives; Ronald Tavares and Charles Leser are already under investigation for a discredited confession over three years ago in Huntington Station and another case recently reported by Newsday ("Murder Confession in Dispute" by Sandra Peddie and Andrew Smith; June 22, 2014). They may have also violated procedures in another murder case about to go to trial, according to the attorney for Shawn Lawrence the man charged in a 2010 murder.
Court Appointed Attorney, Joseph Hanshe, of Sayville, said his client, Shawn Lawrence, who is currently incarcerated awaiting trial for the 2010 murder of James Terry and shooting of David Hodges and Ralph Counsel, had a similar experience with those homicide officers involved in his case. He also alleges misconduct of another Suffolk County Detective, Thomas Walsh, who allegedly attempted to bribe a witness in the case to lie and pressured him to sign a document known to contain false statements. Detectives, including Detective Walsh, Detective Ronald Tavares and another Detective, John McCleer, also allegedly went to his home and threatened one of the witnesses with jail time if he did not sign the falsified witness statement.
Ralph Counsel, one of the shooting victims, is going to testify that Mr. Lawrence was NOT one of the shooters, according to the court appointed investigator who interviewed Mr. Counsel.
DETECTIVES ALLEGEDLY THREATEN WITNESS WITH JAIL
According to an April 14, 2014 letter from Mr. Hanshe to the Judge in the case, William J. Condon in Suffolk County Supreme Court, "A witness I subpoenaed for the hearing and trial (in the Lawrence case), Mr. Burwell has advised me that the homicide detectives are at his door threatening him with jail time unless he signs a document in their possession." Mr. Burwell had contacted the attorney several times that day to document the harassment and attempts to have him "sign a document against his best interest and understanding under threat of jail time", according to the letter. Mr. Burwell was not even at the scene of the crime and was at the home of Ms. Sherry Morant, according to Mr. Hanshe and a written statement from Tariq Burwell.
In June of 2012, Michael Mastronardi, President of Metropolitan Security & Special Services had his associate James Contino interview Ms. Sherry Morant and Tariq Burwell:
They indicated that Ms. Morant is the cousin of Angela Wilson, described as the common law wife of the deceased, James Terry. Reportedly, Ms. Morant and Mr. Burwell were together on the night of the homicide, 01/12/2010. They received a phone call advising that James Terry had been injured, at which time they drove to Andpress Plaza, the location of the shooting. When they arrived they could not get close to the crime scene because of Police activity. Both Ms. Wilson and Ms. Morant exited the vehicle: Mr. Burwell remained in the car because he had stopped reporting to parole and was fearful of being arrested. Tariq Burwell was adamant that he never spoke to Det. Thomas Walsh and that he never made a statement implicating the client Shawn Lawrence. A signed sworn statement was taken from Tariq Burwell, he and Ms. Morant have indicated a willingness to testify in court if requested. (From the Report by Mastronardi/Contino)
According to Mr. Hanshe:
Det. Walsh allegedly obtained a statement from Tariq Burwell that it was Allan McGhee (who has taken a plea) and Shawn Lawrence that were the shooters in the James Terry murder in North Amityville, NY . I subpoenaed Burwell to the pretrial hearings and he denied under oath that he gave any statements to the Police. The Police disclosed the statement allegedly obtained by Det. Walsh at the Hearings wherein Burwell was said to have stated that he was in a particular room at the Andpress Plaza and witnessed the shooting.
We have interviewed 4 witnesses, including the owner of the room; including Tariq Burwell who noted he was not there that evening. Tavares and Leser provided a statement that Burwell denies signing, that says he gave this statement to Walsh. Both Tavaris and Leser are trying to cover Walsh. Tavares and Leser did the same thing that is noted in the recent front page Newsday article. (July 25, 2014 "Murder Conviction Tossed" by Andrew Smith.)
NOT MIRANDIZED...DENIED ATTORNEY PHONE CALL...?
Mr. Hanshe also said his client was denied his rights to an attorney after a video of the police interrogation shows him asking for an attorney many times in the first ten minutes of the interview. The interview was conducted on April 14, 2012 and lasted for over four hours without Mr. Lawrence being Mirandized or given a chance to have an attorney present, despite the fact that the police report of the interview clearly stated "During the interview process, at approximately 1445 hours, Shawn Lawrence invoked his right to council."
When the attorney cross examined Detective McCleery on May 1, 2014 as part of a Huntley Hearing, he admitted they continued to interview or interrogate him after he had asked to speak to his attorney several times.
(Huntley or Miranda hearings: The Huntley hearing is a hearing about statements that prosecutors claim an accused made. At the Huntley hearing, the accused challenges the way the police obtained the statements.)
On page 14 of (Huntley Hearing) court documents obtained by Freelance Investigations, Detective McCleery is asked about the day of the arrest of Mr. Lawrence by Mr. Hanshe, Mr. Lawrence's attorney.
Q: (Mr. Hanshe) Now, at that time, when you put the handcuffs on, was he read his Miranda rights?
A: (Det. McCleery) He was not.
The time of the arrest was 1:42pm when he was told he was under arrest and he was handcuffed behind his back in East Farmingdale on Route 110. The officers did not mention the charges were for murder until they got him into the car. They arrived in Yaphank at 2:17, a little over half an hour later.
Later in the Huntley Hearing, comments that were supposedly uttered in the car by Mr. Lawrence before he was Mirandized ,were written down by the Detectives during the car ride and some were written after the car ride by the Detective from his memory, according to Detective McCleery's testimony.
Page 24 (Huntley Hearing)
Q: (Hanshe) Now ,when you were writing this or when he was making these comments in the backseat of the car, was Detective Walsh talking to him?
A: (Det. McCleery) Well at that point he was trying to tell him to calm down. And at one point he attempted to read him his rights.
Q: (Hanshe) And that was not effectuated, correct?
A: (Det. McCleery) No, it was not.
Q: (Hanshe) Actually his rights weren't read to him until he eventually got to police headquarters, correct?
A: ( Det. McCleery) No, that is incorrect sir.
Q: (Hanshe) He never got his rights read to him, correct?
A: (Det. McCleery) That's correct.
Page 33 (Huntley Hearing)
The first Detective goes into question Mr. Lawrence who is handcuffed to the wall and the "interview" is on video with other Detectives able to view it on a 42" screen outside the interrogation room.
Q: (Hanshe to Detective McCleery) And Detective Sargent Best began to ask questions and Mr. Lawrence said, "I want a lawyer, I want a lawyer, I want a lawyer. I want my family here. I want to be able to call them ." is that correct?
A: (Det. McCleery) Actually, I think he said I am not going to answer any questions, I want my lawyer here, I want to contact my people. But I'm not certain of the exact words, but those three things.
About thirty five minutes had passed since Mr. Lawrence was in the room...
Pages 36-37 (Huntley Hearing)
Q: (Mr. Hanshe) Now who--you said Detective Best was the first officer to begin to talk to or interrogate Mr. Lawrence, right?
A: (Det. McCleery) I would not use the word interrogate, no sir.
Q: (Hanshe) You would use interview?
A: (Det. McCleery) Well, actually that's not what it is called, date of interview...It's to obtain basic pedigree. It's not interrogation.
Q: (Hanshe) There are questions and he asked those questions-and at that point Mr. Lawrence said , " I want a lawyer," Correct?
A: (Det. McCleery) Actually, I don't know how many questions he actually answered, if any.
Q: (Hanshe) I don't think he answered any. He wanted-I think he made a statement saying, "I want a lawyer", correct?
A: (Det. McCleery) I don't recall the exact words, but words to that effect, "I'm not answering any questions, I want to talk to my lawyer and I want to call my people."
Detectives McCleery, Walsh and Serratta were all watching this "interview" of Mr. Lawrence from the video screen outside the interrogation (interview) room.
Page 37 (Huntley Hearing)
Q: (Hanshe) And when he asked for a lawyer and his people, that was not provided to him right then and there, was it?
A: (Det. McCleery) What was not provided to him?
Q: (Hanshe) His telephone and the ability to make a phone call to his lawyer?
A: (Det. McCleery) No. Those calls were not made then, no.
Q: (Hanshe) Okay, is it the policy of the Department to after a prisoner asks for a lawyer to continue talking to him?
A: (Det. McCleery) Well, interrogation ceases at that point.
Q: (Hanshe) So we switch from interview to interrogation now?
At that point DA Newcombe speaks up saying "Your honor, he just asked about the procedures."
The Court (Justice William Condon) "Yeah. You're dealing with semantics there..but--
The topic changes..to the supplemental report of the arrest that was filled out by Charles Leser (page 5) and the fact that despite Officer McCleery saying Mr. Lawrence made these statements in the car, where the form requires the date and time of any statements made and the names of the persons or officers who heard them...the form reads..."None was made." This despite the fact that the detectives had a page of statements allegedly made in the car, before he was ever Mirandized and not on any tape, but most of which was hand written after the fact at the station by a police officer.
Eventually, Mr. Lawrence is allowed to call Mr. Murphy, his attorney and then he called his fiance.
Page 61 (Huntley Hearing)
Detective Walsh sat in the room while Mr. Lawrence spoke to his attorney and according to Detective McCleery, who was questioned about this, "That is standard procedure".
Page 63 (Huntley Hearing)
Q: (Mr. Hanshe to Detective McCleery) All the time you were present with Mr. Lawrence, his Miranda rights were never explained to him correct?
A: (Detective McCleery) Correct.
Q: (Hanshe) And to your knowledge, all the time he was in the interview room his Miranda rights were never explained to him or told to him?
A: (Det. McCleery) He was never advised of Miranda...That is correct.
According to Court Documents Mr. Lawrence was "interviewed" from 2:20 pm until 7pm when he was transported to the 1st Pct on Route 109 in Babylon where they arrived at 7:27 pm.
MR. LAWRENCE VOLUNTARILY TOOK AND
On September 19, 2012 Mr. Lawrence passed a polygraph that he volunteered to take to prove his innocence. Although not admissible in Court, lie detector results are often used by law enforcement to narrow down the probability that a suspect is guilty, especially when someone volunteers to take a test, it is seen as cooperative on many levels. Although Mr. Lawrence was asked many questions and the test was conducted by a credentialed professional, the three relevant questions were:
On January 12, 2010 were you on the property of Andpress Plaza in North Amityville anytime after 10 pm?
On January 12, 2010 did you at any time hold a gun in your hand?
On January 12, 2010 did you shoot at James Terry, David Hodges and Ralph Counsel while they were in the van?
RESULTS: Based on the pretest interview I had with Mr. Lawrence, the polygraph examination I conducted and the physiological data I evaluated, in my opinion:
Mr. Lawrence DID NOT shoot the three individuals that were at Andpress Plaza, North Amityville on January 12, 2010 at about 11:15 pm as charged.
(Test Conducted and opinion by Joel M. Reicherter, Certified Polygraph Examiner 1997-present: Adjunct Instructor for United States Department of Defense, National Center for Credibility Assessment; Former Instructor: American International Institute for Polygraph, 1988-present Adjunct Professor, Suffolk County Community College...)
ANOTHER WITNESS DENIES HE MADE PHOTO-LINE UP ID...
AND ALLEGES BRIBE
Another witness in the case against Mr. Lawrence, James D. Jones, also denies he signed a photo line-up picking Mr. Lawrence as the shooter. Mr. Jones subsequently signed a notarized statement claiming that Detective Walsh attempted at the precinct to bribe him with $50 dollars to sign a statement he did not write. In the December 24, 2013 written statement, Mr. Jones stated he was up for seven days and off his psychotropic medicine when the alleged signed statement obtained by Detective Walsh in April was allegedly taken. He does not remember ever signing it.
I did not see Allen McGhee around the vicinity where James Terry was killed. I've known Allen McGhee for approximately 25 years. Detective Walsh attempted to bribe me with $50.00 at the precinct. He also showed me pictures of Shawn Lawrence and Allen McGhee. I was up for seven days and was without my psychotropic medication. I don't remember if I did or did not sign something. I believe this was in April according to my arrest papers. I've been clean for four months and under no illusion.
I remembered Detective Walsh's phone number 631-831-3793. He placed a visit here at Riverhead to see me with Investigator Santa Cruz present. He had (Detective Walsh) had no business questioning me about Allan McGhee or Shawn Lawrence. Anybody can identify Shawn Lawrence and Allan McGhee when they know them their entire life. I did see 3 people enter The Andpress Plaza through the whole in the fence. I did see someone shooting in the rear Plaza parking lot. I did see James Terry's van and someone shooting. I did see people running. I was by Angela Page's apartment earlier. I stated that they were three people running through the fence. They were too far to see the faces. I saw theyre body types. If a statement was written in April, I was on drugs known as crack cocaine was not taking my Haldol Dekka. I am diagnosed as Schizo-effected and was in-out of the hospital during April, May and June.
Today I am not on any drugs and am on regulated medication. I remember in April them saying they were not going to charge me with whatever I was locked up for. The SCPD did charge me anyway. Det. Walsh told me if I needed to contact him to do so through Investigator Santa Cruz as he did not want a record of me calling him from the jail phone.
James Jones Notarized Statement December 13, 2012
On May 27, 2010 Detective Charles Leser (Shield # 0951) and Detective Ronald Tavares (Shield # 1157) say they interviewed Tariq Burwell of Bay Shore about the murder of James Terry that occurred on January 12, 2010. Mr. Burwell has a history of drug possession and lives in Wyndanch.
Charles Leser showed Tariq Burwell a photo line-up and supposedly he picked out a person known to him as "Zig" aka Shawn Lawrence...Mr. Leser signed the line-up. James Jones also allegedly picked Shawn Lawrence, "Zig" and another shooter Allan McGhee aka "LA" out of a photo line-up. Mr. Jones however denies that the words on the photo-line-up are his and the initials and signature on the line-up document in no way match the name or signature on his notarized statement. The handwriting is different and the spelling of Allen McGhee's name is different as well.
Mr. Burwell signed an affidavit on June 19, 2012 that contained the following statement:
According to Detective Walsh's Felony Complaint (that was never signed by anyone), Mr. Burwell's identification of Mr. Lawrence was the sole reason for the arrest. How can this be possible asks Mr. Lawrence from jail?
On January 12, 2010 at approximately 11:15 pm I was at home (address redacted) Wyndanch, New York with Ms. Sherry Morant when she received a phone call from Angie Wilson (her cousin) advising that Ms. Wilson's common law husband had been shot at Ampress Plaza, N. Amityville, NY.
James Terry and Ms. Wilson have 3 children together. Ms Morant and I picked Angie up at her house and drove her to Ampress Plaza. However we were not able to get close to the crime scene. Ms. Wilson got out of the car with Ms. Morant. I never left the car because I was wanted for violating my parole.
To the best of my recollection I have never spoken to Detective Walsh and I never gave him a statement identifying Shawn Lawrence as shooting James Terry or anyone else on 1/12/2010 (Notarized Affidavit of Tariq Burwell June 19, 2012)
The Police Department in Suffolk County have two other written statements allegedly made by Tariq Burwell. He denies ever writing or signing either one. One is two pages long supposedly taken in May of 2010 allegedly witnessed by Detective Charles E. Leser, the other dated February 7, 2010 and was allegedly witnessed by Detective Thomas Walsh.
Statement of Tariq Burwell taken by Detective Thomas Walsh (The signatures do not appear to match in any way.)
I , Tariq Burwell Being Duly Sworn Deposes and says: I am 32 years old. I have provided Detective Walsh with my address and phone number.
On January 12, I was at the Andpress Plaza Apartments, Harrison Avenue, N. Amityville. I got there about 9:30 am and stayed there until after midnight.
Sometime around 8:30 pm I went to Ronda's Apartment to buy some loose cigarettes. Ronda lives in Apartment # (redacted) in Andpress Plaza. While I was inside Ronda's apartment the people in there were talking about a fight that happened earlier between Ronda's brother "Fraz" and another black guy I know "LA". They said the fight was over some shrimp or some seafood. A guy in the apartment (never identified) said to "Fraz" that he better be careful because "LA" plays with them guns and he'll be back, he going to go home and get that gun. Fraz said he wasn't scared of the young guys. I left the apartment and went to hang out at my friend Dashone's Apartment. (Never interviewed???) Dashone's real name is Carl Andrews and he lives in Apartment # (redacted) in the Plaza. At about 10:50 PM I went outside and spoke with James Terry who was sitting in the driver's seat of his van that was parked in the parking lot behind Dashone's Apartment. I went up to the driver's side of the van. I saw "Fraz" sitting in the middle of the back seat.
(Editor's Note: Ralph Counsel was in the back seat when he was shot in the buttocks).
James asked me if I had any work for him. I told him no. I spoke with James for about a minute then went back into Dashone's Apartment. I went to the back of the apartment to smoke a cigarette, Dashone, his girlfriend and another girl were playing cards at the living room table. As I was smoking, I was looking out the back window. I saw James Terry's van start to back out of the parking space it was in. At the same time I heard voices outside the window I was looking out. The window was open a few inches to let the smoke out but the blinds were open. I then saw a black guy I know as "Zig" and another black guy I know as "LA"walk from near my window toward Jame Terry's van, "Zig" is a tall black male, 6'3", Bald Head and a Goatee. (e in James is missing in statement). He is me (crossed out in statement) Has a medium build. I know "Zig" for about fifteen years. "Zig" was wearing a black hoodie and black pants. "LA" is a short, chubby black male, shorter than 5'8'. I've known "LA" for about 3 weeks. I don't know "Zig's" government name. As they walked toward James Terry's van I saw "Zig" with a Black semi-automatic handgun in his right hand.
Editor's note: Mr. Lawrence is left handed.
I also saw "LA" with a chrome or silver handgun. "LA" was wearing a black ski cap, brown sweatshirt and Black (crossed out) Dark Pants. I saw a third black guy, 5' 6", thin to medium build, wearing all black. That guy was with "LA" and "Zig" but I don't know his name. As they approached the van I heard "LA" exchange words with someone in the van. I couldn't hear what they were saying, I saw "Zig" raise his gun, point it at Jame Terry's van (e again left off name) and start shooting. "LA" immediately started shooting his gun at the van, "LA" was standing by the driver's door of the van and "Zig" was standing near the rear passenger door. I heard multiple shots from different guns going off. I actually saw multiple shots being fired at the van. The third guy took of running toward Harrison Ave while "Zig" and
"LA" kept shooting at the van. Then "LA" and "Zig" also ran toward Harrison Ave. As they were running away I heard a couple more shots go off away from the area of the van. I saw the van rolling until it hit a parked car. I saw "Fraz" get out of the rear of the van and fall to the ground. I got away from the window and didn't say anything about what I saw until tonight. Also tonight, Detective Walsh showed me six photos of black males. I picked #3 as the guy I knew as "LA". I now know his name to be Allan McGhee. Allan McGhee is one of the guys I saw shooting into James Terry's van on January 12, 2010 at the Andpress Plaza Apartments.
I have read the above statement consisting of three pages and I swear it is all true.
This statement was allegedly witnessed and written for Tariq Burwell by Detective Thomas Walsh and it was also notarized by Detective Walsh as well on February 7, 2010, according to documents obtained by Freelance Investigations.
The next statement the Suffolk County Police Department say Tariq Burwell gave them was on May 27, 2010. This time the officer who said he witnessed Tariq Burwell make and sign the statement was Charles E. Leser. He also wrote the statement for Mr. Burwell and notarized his own witnessing of the statement allegedly given to him by Mr. Burwell and the signature of the alleged witness.
In the May version Mr. Burwell now says there were four men not three, he now identified the other two alleged shooters as "Little Rock" and "J-Rock". He said he was originally afraid to tell the detectives their names as they knew his family, according to his May statement. He also says that all four shooters visited him twice after James Terry was killed and told him they knew he saw the shooting and told him to "...keep it quiet. They said that if the Police came to question me I was not to say anything and I was to ask for a lawyer." In this version Mr. Burwell then changed his story from the first statement again, this time saying it was "LA" who shot first. He was told he "knew the rules of the street" and should not talk to the Police.
Mr. Burwell's signature on this statement also does not appear to match either of the other two statements, including the one from 2012, where he disavows ever signing the first two statements taken by Detective Walsh and Detective Leser.
DETECTIVES AND TAVARES and LESER WRITE ANOTHER FALSE STATEMENT?
In another much publicized case an off-duty Nassau County Police officer who had been drinking all evening shot a cabdriver in Huntington. Originally the cabdriver was arrested but after an internal affairs investigation it was determined he was unlawfully shot and the officer who had been drinking had shot and beat the unarmed cabdriver in Huntington Station. Suffolk County Detectives Ronald Tavares and Charles Leser were also involved in creating an alleged false incriminating statement written by them and signed allegedly by the cabdriver when according to medical records he was "Under the influence of Morphine as a pain medication and after he had been shot twice and had one bullet still in his chest and one in his left arm"
(Newsday June 22, 2013 "Officer's Account of Shooting Contradicted by Internal Affairs Report" by Gus Garcia-Roberts and Sandra Peddie)
The article goes on to note that when the cabdriver/shooting victim who originally was arrested by the Police and eventually was cleared of any wrongdoing finally read the statement Detectives Tavares and Leser wrote and had him sign, it contained numerous false statements including one that described the cabdriver as "revving" his Prius engine and aiming his car at the Officer who shot him. He allegedly signed the statement that said "I felt he (Officer DiLeonardo) fired at me to protect himself because I drove at him." Mr. Moroughan, (the cabdriver) said that was not true, that he tried to get away and backed his car out and drove away.
DID DETECTIVES TAVARES and LESER ALSO DENY HIM AN ATTORNEY?
Mr. Moroughan told internal affairs investigators he asked for an attorney, but was denied one by Detectives Tavares and Leser. One of the detectives wrote a sworn statement for Moroughan and asked him to sign it and the statement indicated that he had been read his rights. Mr. Moroughan's godmother just happened to be a Nassau County Assistant DA at the time, in an interview with both Nassau and Suffolk County Internal Affairs, according to the Newsday article, she heard Mr. Moroughan ask repeatedly for an attorney, repeatedly yelling it over and over and when he saw her he said, "That's my lawyer. That's my lawyer. I want my lawyer." Allegedly the hospital staff was overheard discussing that the Officer involved was drunk, something neither Tavares nor Leser mentioned in their report. According to the Newsday story there were at least three witnesses that neither the Nassau nor the Suffolk Detectives ever bothered to contact regarding the shooting. At least one of these witnesses later corroborated the cabdriver's later version of events as true, not the version written by Suffolk County Detectives Tavares and Leser. The Detectives had him sign the false statement written by them while he was under the influence of morphine and before his surgery to remove the bullets. According to the cabdriver, the Detectives statement falsely had him attacking the Police, not the other way around as determined by the internal affairs investigation.
Grand Jury Empaneled...DA Improprieties Cited
Mr. Hanshe sought relief after the Grand Jury indicted his client writing an affirmation in support of a motion to renew and re-argue before Judge William Condon. Mr. Hanshe noted many improprieties on the part of the Suffolk County prosecutor, Robert Biancavilla including not allowing Mr. Lawrence or his alibi witness to testify, despite the attorney on the case at the time, clearly notifying them of desire to have Mr. Lawrence testify before the Grand Jury and to present the alibi witness to testify. The attorney for Mr. Lawrence at the time did so in advance of DA Biancavilla's presentation to the Grand Jury. Mr. Hanshe sought relief including dismissal of the indictment, Sandevol relief, barring Molineaux evidence, Huntley relief, Wade relief, Mapp/Dunaway relief or in the alternative a hearing on the matter, Discovery and leave to make further motions.
When questioned about it Mr. Biancavilla denied that he failed to communicate the request for testimony to the Grand Jury, falsely stating in a written document to the Court that he never received any notice of the witnesses intention of testifying. Faxed documents however provided to Freelance Investigations clearly show that Mr. Biancavilla was informed in a timely manner despite his denials to the Court on December 4, 2013 when he wrote:
Furthermore, at know time (spelling mistake was Biancavilla's) were the people informed by defendant's attorney, Robert Del Col, Esq., that the defendant wished to present any other witnesses.
On April 18, 2012, the law offices of Robert Del Col, the attorney at the time of the Grand Jury, sent a letter and notice of intent to present an alibi witness to the Grand Jury where the matter was scheduled to be presented the next day on April 19th. The letter was faxed and the fax transmission information is clearly present on the page. The witness Alicia Martin, of Amityville, planned to testify that Shawn Lawrence was with her at the time of the shooting. She never got a chance. In fact Mr. Hanshe noted in his request for a dismissal of the indictment, that the prosecutor let Ms. Martin sit in the DA's office the whole time instead of bringing her to the Grand Jury letting her believe she was going to be called. She never was.
Improprieties in the presentation of the case to the Grand Jury by District Attorney Biancavilla were alleged by Mr. Hanshe in his motion to re-argue and renew included but were not limited to the following:
1. The evidence before the Grand Jury was not legally sufficient to establish the offenses charged or any other lesser offense.
2. The prosecutor's instructions to the Grand Jury were not recorded for each element of each count charged resulting in the minutes being insufficient.
3. Necessary instructions for each count were improperly given or insufficient so as to impair the Grand Jury's ability to intelligently or properly consider the evidence.
4. The Grand Jury was never instructed that statutory presumptions are not conclusive.
5. The Grand Jury was not instructed regarding who decides legal sufficiency which is supposed to fall on the Jurors to decide. It is improper for the prosecutor to inform the Grand Jury that he determined enough evidence existed to warrant an indictment.
6. Inordinate delay between the instructions at the beginning of the term and instructions on the law which only came at the beginning of the presentation.
7. The prosecutor did not give limiting instructions regarding evaluating defendant's prior convictions.
8. The prosecutor failed to answer questions regarding possible lesser offenses.
9. The prosecutor failed to inform the Grand Jury that a prosecution witness testified under a grant of immunity, a cooperation agreement, or a private understanding had been reached as is required.
10. The Grand Jury were not advised to avoid using extensive media coverage or what they may have heard or read elsewhere about the case.
11. A material statement was withheld, to the extent that the Grand Jury was misled.
12. The prosecutor administered the oath to all witnesses instead of the Grand Jury foreperson or other Grand Juror as is proper legal procedure.
13. The prosecutor improperly introduced evidence of the defendants pre-trial silence or improperly commented on the defendants failure to testify before the Grand Jury.
14. The prosecutor foreclosed questioning of a witness by a Grand Juror or prevented a witness from answering a question posed by a Grand Juror. The prosecutor failed to have testimony read back to the Grand Jury.
15. The prosecutor interjected personal beliefs, or opinions or vouched for witness credibility.
16. The prosecutor presented evidence known to be false.
17. The prosecution withdrew the presentation of evidence after a vote was taken and resubmitted without leave of the court.
18. The indictment was based on immunized testimony or testimony compelled under threats.
19. Inadmissible hearsay evidence was presented, either directly through the introduction of out of court statements, exhibits or inferred through the manner in which testimony was presented.
20. Documents were improperly subpoenaed (Improper to issue a "Grand Jury" subpoena while the Grand Jury was not in session).
21. The prosecutor failed to subpoena a witness whom the Grand Jury requested to hear.
22. The prosecutor only introduced the inculpating portions of the defendants statement and failed to introduce exculpatory portions that were a continuous interrogation.
23. The Grand Jury's secrecy and confidentiality was compromised and/or unauthorized persons were present in the Grand Jury or during videotaping testimony made elsewhere, but presented to the Grand Jury.
24. A laboratory report was not properly certified by the same person who conducted the analysis of the ballistics report.
25. The prosecutor presented improper evidence regarding information that served the police officer's determination of probable cause to arrest the defendant. Probable cause is not an element of a charge, is inadmissible even at trial and is therefore irrelevant to a Grand Jury. (According to People v Thomas if this information was presented to potentially prejudice the ultimate decision reached by the Grand Jury,
the proceeding was defective, thus warranting the dismissal of the indictment.)
26. The prosecutor failed to inform the Grand Jury that an alibi witness was present in the DA's Office and was there to testify.
27. The defendant was not afforded a Speedy Trial.
With regard to physical evidence in the case, Mr. Hanshe contends the property was seized in violation of Mr. Lawrence's Fourth Amendment Constitutional Rights.
The evidence seized included units of clothing, a DNA buccal swab, cell phone and computer records and social network records. The warrant under which the property was seized was issued without probable cause and was based on affidavits and/or sworn testimony that contained material and false allegations that were made knowingly and in reckless disregard for the truth. The warrant further failed to describe the things to be seized with particularity and was overly broad and executed beyond its' scope. The warrant was executed at night and was not an authorized "no-knock" warrant and the officers failed to make a timely return of the warrant which failed to contain a direction that the warrant be returned to the court without regard to whether any property seized was seized as a result of the search pursuant to CPL 690.45 (8).
The defense also insisted it seriously doubted the existence of any informant or that the officer truthfully reported in his affidavit in support of the warrant that such informant existed or that he accurately reported the information he allegedly received.
Detective Walsh allegedly suggested to Mr. Burwell and other witnesses that Mr. Lawrence was the perpetrator of the crime. The failures of the court appointed investigator to interview at least 30 witnesses due to lack of money is a serious issue brought to the attention of the Court with Mr. Hanshe requesting additional monies be provided so that his client can get a fair trial.
There is not one shred of physical evidence connecting Mr. Lawrence to this crime and the "eyewitness" testimony of the less than credible witnesses are all that has linked the defendant to this crime, according to Mr. Hanshe. Experts would be needed to establish that "eyewitness" testimony is generally unreliable.
For these and other reasons Mr. Hanshe requested a dismissal of the Grand Jury indictment.
ORIGINAL VIDEO OF SHOOTING DAMAGED BY DA's OFFICE?
A copy of the video of the shooting from the Plaza surveillance tapes clearly shows that the perpetrators of the crime are all shorter than the six foot fence they run past...Mr. Lawrence is 6'4'' and therefore it would appear he could not possibly be one of the shooters. Freelance Investigations has obtained a copy of the video. If the original tape hard drive is damaged and unable to be used in court then Mr. Lawrence's evidence that he is innocent may be lost. Because he is 6'4", Mr. Hanshe insists he could not have been one of those seen running next to the six foot fence as they were all shorter than the fence.
In a recent correspondence Mr. Hanshe discussed the video of the murder scene noting the following:
Earlier in the evening, there was a disagreement between Allan McGhee (formerly a co-defendant in the case) and David Hodges (shot later that evening). McGhee is allergic to shrimp and apparently Hodges gave him some and the initial fight occurred. McGhee is about 5ft 7 inches, 160 lbs. An ambulance arrived for Mr. McGhee at 21:33 to attend to Mr. McGhee's allergic reaction, but he had already departed. Mr. Hodges remained at the party at apartment #16. Two others, James Terry (eventually murdered) and Ralph Counsel (shot in the buttocks) arrive in a 2006 Honda Odyssey, to pick up Hodges from Apartment #16 (the party). After departing #16, they make a right hand turn to park in back of #30 in a parking space instead of leaving (presumably to do drugs).
At 23:01 the first assassin arrives at Andpress Plaza
23:02.01 the second and third assassins arrive
23:03.4 on camera, you can see four assassins
23:05.02 the four assassins appear near a fence, all under the six foot height of the fence
23:05 Van with three victims parks to do drugs
23:04.44 the four assassins walk back toward the Van and stand in back of apartment #30
23:09 the Van backs out of the parking spot in an attempt to leave the scene; the assassins move to the Van to carry out the assassination.
As a result: James Terry was murdered; David Hodges was severely maimed with a debilitating head injury; and Ralph Counsel was shot in the buttocks.
Mr. Hanshe noted that his client "Shawn Lawrence is 6 ft 4 inches with shoes on. As you watch the video, you will see that all of the assassins are approximately the same height." Mr. Hanshe insists he has further proof of his client's innocence and looks forward to proving that at the upcoming trial.
PROBLEMS WITH THE ORIGINAL VIDEO?
In April 2014, the DA set up two or three meetings with Mr. Hanshe and Mr. Lawrence to view the original video, but each time the DA's Office cancelled the meetings stating the video was not working properly. The original surveillance equipment was confiscated by the SCPD back in January of 2010. A copy was provided in September of 2013 to Mr. Lawrence who was pro-se at the time. When Mr. Lawrence requested to view the original copy (as is his right by law) it took several months before his request was accommodated. By that time his case had been assigned to Mr. Hanshe as his legal aid (18-B) counsel. The three April appointments set up for Mr. Hanshe and his client were all cancelled with the DA's office claiming that they could not get the original video to work properly.
In May of this year, Suffolk ADA Laura Newcombe, the new ADA assigned to the case (after Mr. Biancavilla was removed in January for unknown reasons) sent a new copy of a clearer version of the video to Mr, Hanshe. This was turned over to the video expert assigned to the case and his determination was that the aspect ratio of the video had been distorted and that the original video needed to be reviewed for a proper testimony by him.
Another appointment to view the original was set up by the DA's office for Friday, June 6th and once again when Mr. Hanshe and Mr. Lawrence arrived the DA said the video was again not functioning properly and they were unable to get it to play. Prior to that appointment on June 6th, on the same morning they were supposed to meet to finally get a chance to view the original tape, District Attorney Newcombe went to Judge Condon's courtroom and put on the record that she should not be held liable if the video was damaged or information from the video hard drive was lost. She appeared to be technically trying to cover the DA's office for any future problems with the video.
When Mr. Lawrence and Mr. Hanshe arrived at the DA's Office later the same day, they both observed that the hard drive had already been removed from the original motherboard and had been already placed in an evidence bag. So there was never a possibility of them playing it that day and Mr. Lawrence and Mr. Hanshe contend that DA Newcombs' visit to the Judge that morning was done to cover the fact that the DA's office may have already tampered with the hard drive making it unable to be viewed.
Mr. Lawrence requested that his attorney ask the video expert to at least make a determination of the height and weight of the four persons on the video as well as Larry Williams, who is the superintendent of the apartment complex where the crime took place. He was also the first person to speak to the first officer on the scene. Mr. Lawrence is asking for:
1.) Still shots of all four perpetrators on the video...one when the single perpetrator walks over to the van by himself, then back toward the other perpetrator.
2.) When the three perpetrators are standing next to the gate by the dumpster.
3.) When all four perpetrators walk on the sidewalk together toward the back of the van by Ronda's apartment. Then, when they come back and walked in front of the van as the van backed out and driving away from Ronda's apartment.
4.) When the four perpetrators stand on the side of the van, they raise their arms shooting at the van as the van backed out. Request the video expert to also make still shots of Larry Williams getting in an out of his vehicle to speak with Police. He asks this to show that even Mr. Williams who is shorter than Mr. Lawrence does not fit the description of the men on the video who are all shorter than the six foot fence they stand next to.
Mr. Lawrence believes the DA's office tampering with the original video is a clear Brady Violation and the failure of the People to disclose exculpatory material in response to specific discovery requests, in this case the original video, verges on prosecutorial misconduct. (Brady v Maryland).
Mr. Lawrence has never been a member of any gang and Mr. Hanshe recently was able to successfully sever the case and prevent Mr. Lawrence from being tried with another defendant in the case, who clearly had gang affiliations. Mr. Lawrence has never been arrested for or connected to any gun at any time.
THE DA RESPONDS TO THE MOTION TO DISMISS AND MR. HANSHE COUNTERS
Ms. Newcombe responded to Mr. Hanshe's requests for dismissal with an affirmation in opposition to the defendants Notice of Motion on February 11, 2014.
The Court decided in a decision dated June 15, 2012 that after an in camera review of the minutes, the Grand Jury presentation was sufficient and on January 28, 2013 the Court said it had already ruled on the sufficiency of the Grand Jury presentation.
In his Affirmation in Reply to the People's Opposition, Mr. Hanshe noted that even though the Court issued a Decision and Order concerning the sufficiency of the Grand Jury, it did so without taking into account the Witness the Defendant asked through his Counsel be produced. In fact the witness was misled by the staff of the Office of the District Attorney when she was permitted to stay in the waiting room of the DA's Office instead of being transported to the Grand Jury to testify. Mr. Hanshe wrote that the blatant lack of proper procedure and prosecutorial misconduct deprived the Grand Jury and the Court not only of the Defendant's Alibi witness(s) testimony but any other testimony that could have supported the Defendant's position. There is nothing in the record provided that the Grand Jury "Rejected the Defendant's Request to hear testimony of additional witnesses." Mr. Hanshe contends that the DA is jumping to conclusions, erroneously that the Grand Jury was given this evidence to consider and that according to her they "clearly rejected the defense request to hear additional testimony..."
Ms. Newcombe cited People v Gray in support of her position stating that in that case the jury chose not to hear the alibi witness.
Mr. Hanshe responded that in that case the Grand Jury was presented with the option of hearing the alibi witness...Mr. Hanshe countered that in Mr. Lawrence's case, despite the fact that the defense indicated it wanted to present an alibi witness to the Grand Jury, the members of the Jury were never informed of that nor was the Grand Jury asked if it wished to hear alibi testimony. "The Assistant District Attorney is jumping to conclusions, erroneously, that the Grand Jury was given this information to consider. Upon information and belief, this is a misrepresentation of the facts."
According to Mr. Hanshe:
Next, Ms. Newcombe dealt with the Sandoval Hearing and said the people are not opposed to a hearing to determine the scope of the cross examination should the defendant testify at trial. Mr. Hanshe agreed that there would be a need for a Sandoval Hearing on the eve of the trial.
"What is clear is that the defendant was deprived of due process of law and his sixth amendment rights. Nothing in the record before this Honorable Court indicates the Grand Jury "clearly" rejected the alibi testimony."
According to Mr. Hanshe, the Felony Complaint in the case before the Court indicated that the sole
reason for the Defendant's arrest on these charges, two years after the alleged murder was a statement
made by Tariq Burwell. The defense interviewed Tariq Burwell and provided the Court with a copy of this statement clearly indicating he never spoke to the Police about this matter. Other statements to the Court indicate that the Detectives were attempting to bribe witnesses to testify against the Defendant.
Consequently, the basis for this arrest is a clear misrepresentation witnessed by an Oath of Detective Walsh saying he took a statement of Tariq Burwell, according to the defense.
"Molineaux Relief" was called premature by DA Newcombe. Saying that if the People intend to introduce certain evidence at trial, they will pursue such intent by way of a motion in limine and promised that the defendant would be notified of such intent at the proper time. Mr. Hanshe countered that the Defense had received a notice that the People intended to offer evidence at trial of statements made by the Defendant to law enforcement personnel.
The date of the crime was January 12, 2010 at or about 11:09 pm. The Defendant was arrested for this crime on April 14, 2012 at 1:42 pm, 2 years, 3 months and 3 days after the date of the murder. There is a video of the Defendant's interrogation at Homicide Division in Yaphank, a copy of which was provided to the Defense. At the inception of the interview tape, that was obtained by Freelance Investigations, at 2:27 pm Mr. Lawrence stated that "he wants to make a phone call to call his lawyer"; yet the Detectives continue to interrogate and "badger" him and "incite" him and they kept him in the interrogation room in Yaphank for 4 hours and 38 minutes without access to the requested counsel.
"Statements allegedly made by the Defendant after the arrest and prior to the the beginning of the videotaped statements in the interrogation room are fabricated by the Detectives", according to Mr. Hanshe. The Defendant was on his lunch break from work when he was arrested. The arrest was made without probable cause based on the alleged sole statement of Tariq Burwell who denied ever speaking to the Detective or ever implicating Mr. Lawrence in the crime. The Defendant was arrested without an arrest warrant and without any physical evidence linking him to the crime, which is only authorized when the police officer has reasonable cause to believe that such a person has committed a crime in his presence.
In the police felony complaint that was never signed by Officer Walsh, the crime was labelled as a CIP...or a Crime in Progress. But since the arrest was made over two years after the crime, it defies logic that the officer made the arrest for a "crime in progress". Perhaps Detective Walsh was using that description to make an end run around his failure to obtain a warrant for the arrest.
The issue of a "Huntley Hearing" dealing with the suppression of statements allegedly made voluntarily to the Police was the next item dealt with by Ms. Newcombe. It is the People's position that statements were made voluntarily and were spontaneous in nature. The defendant was never threatened with use of force nor was he ever induced to give such statements and therefore, according to Ms. Newcombe the statements are admissible as evidence. The People asked the Court to deny the defense motion to suppress the statements or to order a Huntley hearing.
Mr. Hanshe moved to preclude the introduction at trial of any statements that are not included in the CPL 710.30 notice.
Based on Mr. Lawrence's application, the Court granted his motion for a combined "Huntley" "Wade" and "Dunaway" pre-trial hearing held on April 22, April 30th and May 15, 2014 to determine the propriety of the arrest of the defendant, the voluntariness of the alleged statements made by the defendant to the police and the propriety of the identification procedure employed by the police in identifying the defendant in connection with the criminal charges of murder in the second degree, two counts of attempted murder in the second degree and criminal possession of a weapon in the second degree.
Suppression of Identification Testimony and Evidence
The People opposed the Defendant's motion to suppress the identification testimony, but consented to a hearing therein, but the "Wade" hearing should be limited in scope and should not address the probable cause leading to the arrest, according to Ms. Newcombe. Mr. Hanshe reiterated his former position and moved the Court to suppress any identification testimony regarding the Defendant or in the alternative, a (Wade Hearing) to determine their admissibility. Upon information and belief the previous identifications by the prospective witnesses were improperly made or coerced.
The People argued that the Police had an articulable and reasonable suspicion to justify their approach of the defendant, and there was probable cause to arrest the defendant, thereby requesting the Court to deny the defendant's motion to suppress any evidence seized from the defendant on the basis that the police lacked probable cause to arrest the defendant. Ms. Newcombe based her contention on the grounds that CPL 710.60 provides that motion papers must state the grounds of the motion and must contain sworn statements of fact...Ms. Newcombe alleged that the defense failed to put forth any sworn allegation of fact to support such a claim. "Where motion papers are conclusory in nature and contain no factual allegations supporting defendant's claim, the motion may be summarily denied." was her argument.
The Defense moved to suppress the identification of the defendant by any witness on the grounds that the procedure employed, two years , three months and 3 days after the alleged crime, was unduly suggestive and obtained illegally in contravention of Defendant's rights. The People provided certain "Confirmatory" Identification was made of the Defendant. It is the Defendant's position that any identification of the Defendant was not "Confirmatory", but rather unduly suggestive and coerced. In fact, one Witness provided the Defendant's investigator with an affidavit indicating that Detective Walsh attempted to bribe the Witness with a proffer of $50.00. (Exhibit F) Not only does this suggest the ID procedure was unduly suggestive, but in addition, suggests an illegal bribe was offered to at least one Witness. Consequently, the Defendant requested a Wade Hearing on the issue of Identification.
WADING THROUGH THE WADE HEARING ISN'T EASY...
During the Wade hearing, according to the decision by Judge William J. Condon the people presented three credible witnesses; Suffolk County Police Detective John McCleer; Suffolk County Police Detective Thomas Walsh and Suffolk County Police Detective Ronald Tavares. The Judge wrote that the three witnesses impressed him with their professionalism and "The Court finds that the testimony of all three witnesses was honest and forthright. Therefore the testimony of each of the three witnesses was honest, candid and forthright. Accordingly, the testimony of the three witnesses is credited by the Court."
The only problem with that according to Mr. Lawrence is that Detective Tavares testified about the photo line-up and the document that had the witness Tariq Burwell's alleged initials and signature on them. But Detective Tavares is NOT the Detective whose name appears on the photo line-up document. Detective Charles Leser's name is the one that appears on the photo line-up with the initials and signature that Tariq Burwell allegedly had signed. Mr. Burwell denies in an affidavit submitted to the court that he ever signed the alleged statements of February 7th and May 27th 2010 and he denies initialing the photo line-up that Detective Leser's name appears on. Mr. Lawrence asks the question why was Detective Tavares testifying about a document with someone else's name on it and why didn't Detective Leser testify in the pretrial since his name was on the document. Mr. Lawrence said he is still waiting for the transcript of Detective Tavares' testimony.
During the Wade portion of the hearing, Detective Tavares testified that on May 27th 2010 he presented Tariq Burwell with a single sheet photo array of six male subjects, each of similar age, build similar hair type and similar facial features. In rebuttal, the Defense put on Tariq Burwell himself who said he did not identify the defendant Shawn Lawrence as a shooter in this matter and that he was not in the custody of the police on that day. The Police testified he was in custody and that he had been fingerprinted as proof. Mr. Burwell had already had his prints in the system according to him and he still denies he ever said Mr. Lawrence was the shooter. Mr. Burwell still denies signing the statements attributed to him.
Detective Tavares and Detective Leser have been accused of forcing a cabdriver who was a shooting victim in Huntington Station to sign a false statement they wrote up. The statement was disavowed when it was determined the officers had been drinking when off duty and during the time of the shooting.
On February 28, 2014 Mr. Hanshe again moved the Court to suppress any and all evidence seized or discovered as a result of the Defendant's illegal arrest that was unconstitutional and wholly without probable cause.
The photo array was not considered to be overly suggestive toward the defendant, according to the judge, something Mr. Lawrence disagrees with saying he believed there was a substantial likelihood the he would be singled out for identification as according to him the physical characteristics did not match his age range and his own physical characteristics closely enough.
JUDGE RULES ON "HUNTLEY" PORTION of HEARING
During the "Huntley Portion" of the hearing dealing with the suppression of statements allegedly made voluntarily to the Police, by Mr. Lawrence, on the day of his arrest, Detective McCleer testified that the defendant was taken into police custody at approximately 1:42 on April 14, 2012 at or near Route 110 in Farmingdale. He also testified that he told Mr. Lawrence there would be no discussion of the incident or the allegations during his transport to police headquarters. Nonetheless, the defendant allegedly made numerous unsolicited statements during that transport and allegedly made further statements at police headquarters. The Court considered the voluntary nature of the custodial statements and those on the audio and video...and found that the People did not coerce the statements, that they were not involuntary and that the People proved this beyond a reasonable doubt.
Accordingly, Judge Condon denied Mr. Lawrence's application to suppress his custodial statements.
Mr. Lawrence argues that the documents submitted to the Court and signed by Detective Walsh who arrested Mr. Lawrence, have a section that says "Any Oral Statements Made"...and the answer is none.
When one listens to the four hour video of the Lawrence interrogation Mr. Lawrence asks for a lawyer several times in the first few minutes, yet none is provided and the Detectives continue to question him hour after hour.
When a phone call to his lawyer is finally provided to him hours later, the Detective sat in the room and listened to Mr. Lawrence's side of the phone call, something the officer testified is "standard procedure."
During the "Mapp/Dunaway" portion of the hearing, the Court considered whether the Police had probable cause to arrest the Defendant.
The Court said the People had three witnesses that would testify Mr. Lawrence was the shooter, Mr. Burwell (who denies ever identifying Mr. Lawrence), Mr. Ralph Counsel, (one of the shooting victims who according to the Defense intends to testify Mr. Lawrence was NOT the shooter) and Mr. Hodges (the other victim who was shot in the head, has been unable to be questioned by the defense due to medical issues). Somehow the DA has placed Mr. Hodges on their witness list, despite the fact that he is medically unable to be interviewed according to medical reports obtained by the defense.
The Court made the statement of three witnesses, despite the fact that the felony complaint had only one name on it and that was Tariq Burwell...the man who continues to deny ever identifying Mr. Lawrence as the shooter.
Judge Condon then made the statement that all physical evidence obtained as a result of the arrest would not be suppressed. The only problem with that, is that according to the Defense, there is absolutely not one shred of physical evidence connecting Mr. Lawrence to this crime.
DNA TESTING CLEARS MR. LAWRENCE COMPLETELY
Results of DNA testing were finalized on May 28, 2012. Pursuant to CPL 240 and CPL 240.90 the People have 45 days after arraignment to file motions for Discovery. The Defendant was arraigned on April 25, 2012. Forty five (45) days after the indictment was June 9, 2012. Since June 9, 2012 to the date of the DA's Motion by Order to Show Cause it had been 673 days or one year, ten months and two days. From the Court's own Order of January 28, 2013, the DA was supposed to provide Defense Counsel with all Discovery material within thirty days of the order (February 28, 2013 (See Exhibit C)
The Defense requested that if a DNA buccal swab was ordered by the Court, then the Defendant requested a DNA laboratory expert of his own choosing be present when the swab was obtained and he be present when the analysis was done at the Suffolk County Crime Laboratory. Alternately, the Defense requested permission to obtain a DNA analysis at the expense of Suffolk County to carry out its' own DNA profile examination. Mr. Hanshe then requested a protective order for his client.
When the DNA results from the buccal swab finally came back, they did not in any way match any of the DNA obtained from the crime scene. In fact, Mr. Lawrence was unequivocally ruled out as having any DNA connected to any part of the crime scene.
In response to the Defense claims that it did not receive certain items of Discovery, particularly lab reports and medical records, Ms. Newcombe stated the items were available for defense counsel's review at any mutually agreed upon time... (February 11, 2014...Laura Newcombe for Thomas Spota)
Mr. Lawrence has asked his attorney to request the charges be dismissed for lack of any credible evidence. Mr. Lawrence has been in jail for over two years in clear violation of his rights to a speedy trial, he has also argued.
The trial date has been moved to September 15, 2014. The Judge is on vacation and the original video has yet to be viewed by the defense as it unable to be played, according to the last information available from the DA's office.
Last week, Suffolk County District Attorney spokesperson Robert Clifford, was presented with a preview of this article and a request for comment. No response at all from the DA's Office at time of publication
Mr. Hanshe said, "I cannot wait to get to trial. It’s shameful what is going on in this case. Mr. Lawrence has been incarcerated for over two years."
Thursday, May 15, 2014
HUNTINGTON TOWN LOSES APPEAL IN PERKS/YULE COURT DECISION
TOWN MUST PAY PERKS' ATTORNEY MILLIONS IN LEGAL FEES
Decided on May 7, 2014
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
(Index No. 3857/10)
[*1]In the Matter of Local 342, Long Island Public Service Employees, etc., respondent,
Town of Huntington, appellant.
Bond, Schoeneck & King, PLLC, Garden City, N.Y. (James P.
Clark and Hilary L. Moreira of counsel), for appellant.
Edward J. Yule, LLC, Northport, N.Y., for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR 7511 to confirm an arbitration award, the Town of Huntington appeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated May 9, 2012, which, inter alia, granted the petition.
ORDERED that the order is affirmed, with costs.
In the arbitration award at issue, the arbitrator determined that the Town of Huntington breached a collective bargaining agreement by failing to pay certain legal fees on behalf of the grievant. The Supreme Court properly concluded that the arbitrator's determination did not clearly violate a strong public policy, was not totally or completely irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power (see Matter of Erin Constr. & Dev. Co., Inc. v Meltzer, 58 AD3d 729). Although the payment of a public employee's legal fees "would constitute an impermissible donation from the public purse in instances where there is no prior legal obligation on the part of the State or a municipality to provide reimbursement, the reimbursement is proper and considered additional remuneration where there is a prior legal obligation" (Matter of Security & Law Enforcement Empls., Dist. Council 82 [County of Albany], 96 AD2d 976, 978, affd 61 NY2d 965). In this instance, the relevant collective bargaining agreement expressly created a prior legal obligation on the part of the Town to pay the subject legal fees incurred by the grievant (see Matter of Security & Law Enforcement Empls., Dist. Council 82 [County of Albany], 96 AD2d 976; cf. Zimmer v Town of Brookhaven, 247 AD2d 109).
The Town's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the petition to confirm the arbitration award.
SKELOS, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
Clerk of the Court
Sunday, March 23, 2014
WATER and AQUIFER TESTING NECESSARY
In Nassau and Suffolk Environmentalists and Legislators Work Together
Recently, a group of environmentalists met in Oyster Bay and they were joined in their effort by a Nassau County politician calling for the restoration of funding to a stalled program critical for monitoring the region's groundwater aquifer system. The program's funding was stopped in 2010 and the United States Geological Survey was forced to interrupt collection of data about groundwater levels, salt intrusion, storm related effects on shoreline erosion and stream flow monitoring, among other things. This data can be of critical importance to water suppliers and others. It was funded temporarily last year by the Nassau Suffolk Water Commissioner's Association, but needs a reliable source of funding as the holes in the data are problematic. There is an effort underway to fully restore the funding and for the County legislature to approve a new contract negotiated by the Nassau County Department of Public Works with the USGS for around $140,000 a year. Legis. David Denenberg (D-Merrick) joined with civic and environmental groups calling for the immediate restoration of the funding.
Newsday's Jennifer Barrios wrote an article related to the funding titled "Nassau Urged to Fund Aquifer Tests". Dr. Carmine Vasile, a Patchogue resident with a doctoral degree in electrophysics, who was a former Grumman Inventor of the Year, (1992) responded to the article and sent out this comment to several media, environmental and political venues. Dr. Vasile has been a persistent and vocal critic of the the Suffolk County Water Authority, the Department of Health and other New York governmental agencies he asserts are not testing the water for certain known critical and deadly elements...including radon and other radiologicals and their long-lived radioactive daughters.
Radon is the second leading cause of cancer, next to smoking and is naturally present in the ground in certain varied concentrations, depending upon the location. In 1976 the Environmental Protection Agency enacted what is known as the Radionuclides Rule under the aegis of the Safe Drinking Water Act in order to improve public health and lower the risks of cancers due to exposure to radon and radionuclides and it has been revised since then. However, no MCL or Maximum Contamination Level has yet been set for radon or radionuclides in New York State, so there is no way to know whether or not the levels of exposure from the waterborne radionuclides exceed safe standards or not.
They haven't made the standards...so how could any level exceed non-existent standards?
Dr. Vasile's Unedited Comments Sent to Freelance Investigations:
If this program is approved we will know how deep the aquifers are, but not the concentrations of cancer-causing toxins. Since 1976, the EPA has never enforced its Radionuclides Rule and failed to set an MCL for Radon, the 2nd leading cause of lung cancer after smoking.
In fact the EPA promulgated the Radionuclides Rule under the Safe Drinking Water Act (SDWA) in 1976 and revised it in December of 2000. The revised rule became law on December 8, 2003. The Radionuclide Rule established a mandate to begin initial monitoring under state regulated monitoring plans on December 8, 2003 and to complete initial monitoring by December 31, 2007. United States Community Water Systems (CWSs)—systems serving over 15 homes or 25 persons—are regulated by the rule.
The purpose of the Radionuclide Rule is to improve public health by reducing the risk of various cancers caused by exposure to waterborne radionuclides. The Radionuclide Rule creates four categories of regulated radionuclide contaminants along with their mandatory Maximum Contaminant Levels (MCL) and recommended Maximum Contaminant Level Goals (MCLG). The MCLG is the level at which no toxicity exists. It is always zero. (Dr. Carmine Vasile Ph.D. Electrophysics )
The Radionuclides Rule....A Quick Reference Guide
The following is some basic information about radionuclides and the radionuclides rule taken directly from the Environmental Protection Agency Website.
This information was taken directly and without editing from the EPA Website:
To view it directly go to the following link.
66 FR 76708 December 7, 2000 Vol. 65, No. 236
Reducing the exposure to radionuclides in drinking water will reduce the risk of cancer. This rule will also improve public health protection by reducing exposure to all radionuclides.
The rule retains the existing MCLs for combined radium-226 and radium-228, gross alpha particle radioactivity, and beta particle and photon activity. The rule regulates uranium for the first time.
Community water systems, all size categories.
*This document provides a summary of federal drinking water requirements; to ensure full compliance, please consult the federal regulations at 40 CFR 141 and any approved state requirements.
Public Health Benefits
Implementation of the Radionuclides Rule will result in . . .
Reduced uranium exposure for 620,000 persons, protection from toxic kidney effects of uranium, and a reduced risk of cancer.
Estimated impacts of the Radionuclides Rule include . . .
Annual compliance costs of $81 million.
Only 795 systems will have to install treatment.
4mrem/yr MCL 0
Gross alpha particle
15 pCi/L MCL 0
Combined radium- 226/228
5 pCi/L MCL 0
Uranium MCL 0
**A total of 168 individual beta particle and photon emitters may be used to calculate compliance with the MCL.
Critical Deadlines & Requirements
For Drinking Water Systems
June 2000 - December 8, 2003
When allowed by the State, data collected between these dates may be eligible for use as grandfathered data (excluding beta particle and photon emitters).
December 8, 2003
Systems begin initial monitoring under State-specified monitoring plan unless the State permits use of grandfathered data.
December 31, 2007
All systems must complete initial monitoring.
December 2000 - December 2003
States work with systems to establish monitoring schedules.
December 8, 2000
States should begin to update vulnerability assessments for beta photon and particle emitters and notify systems of monitoring requirements.
EPA meets and works with States to explain new rules and requirements and to initiate adoption and implementation activities.
December 8, 2002
State submits primacy revision application to EPA. (EPA approves within 90 days.)
Gross Alpha, Combined Radium-226/228, and Uranium (1)
Beta Particle and Photon Radioactivity (1)
Four consecutive quarters of monitoring.
No monitoring required for most CWSs. Vulnerable CWSs (2) must sample for: • Gross beta: quarterly samples. • Tritium and Strontium-90: annual samples.
If the average of the initial monitoring results for each contaminant is below the detection limit: One sample every 9 years.
If the average of the initial monitoring results for each contaminant is greater than or equal to the detection limit, but less than or equal to one-half the MCL: One sample every 6 years.
If the average of the initial monitoring results for each contaminant is greater than one-half the MCL, but less than or equal to the MCL: One sample every 3 years.
If the running annual average of the gross beta particle activity minus the naturally occurring potassium-40 activity is less than or equal to 50 pCi/L: One sample every 3 years.
A system with an entry point result above the MCL must return to quarterly sampling until 4 consecutive quarterly samples are below the MCL.
If gross beta particle activity minus the naturally occurring potassium-40 activity exceeds 50 pCi/L, the system must: • Speciate as required by the State.
• Sample at the initial monitoring frequency.
(1) All samples must be collected at each entry point to the distribution system. (2) The rule also contains requirements for CWSs using waters contaminated by effluents from nuclear facilities.
Grandfathering of Data
When allowed by the State, data collected between June, 2000 and December 8, 2003 may be used to satisfy the initial monitoring requirements if samples have been collected from:
► ► ►
Each entry point to the distribution system (EPTDS). The distribution system, provided the system has a single EPTDS.
The distribution system, provided the State makes a written justification explaining why the sample is representative of all EPTDS.
Saturday, March 15, 2014
Frank Petrone's Taxpayer Funded Political Theater: ACT FOUR: Scene Five...The Scarpati-Reilly Deposition Part 3
Last month Freelance Investigations published an Exclusive Article revealing that Governor Andrew Cuomo has requested the New York State Department of Environmental Conservation (DEC) look into serious allegations made by a former Town of Huntington Harbormaster and Hazardous Materials Coordinator against some former and some current Town Board members of the Town of Huntington.
William Townsend Perks has been raising red flags for over fifteen years that radiated scrap or "grizzly" was being trucked and burned in the Town of Huntington waste-to-energy incinerator (then Ogden Martin) now known as the Covanta Incinerator. It has cost him and his family dearly. To catch some of you up with the story...
Mr. Perks supplied Freelance Investigations with evidence that indicates truckloads of radiated scrap (grizzly) were burned and radiated waste was trucked illegally on neighborhood streets perhaps for over a decade. This was done without any permits or notification to proper authorities--for as far back as 1994 and through at least 2003. The State DEC upon receiving the letter from Governor Cuomo, decided the matter was serious enough to open a criminal investigation into the allegations sent to them by the Governor's Office. (To see full article press the link: http://freelance-documentdrivennews.blogspot.com/2014/02/governor-cuomo-asks-state-dec-to.html)
Mr. Perks has been labelled overly litigious by the Town, but he insists he was only trying to protect himself and the employees who had an absolute right to know what they were being exposed to because New York State has very strict and specific Right-To-Know Laws, but also because these people were being exposed to radiated materials in the course of doing their jobs for the Town. Then they went home in the clothes that they had been exposed to radiation in. They wore them home to be washed in the same washing machines with the clothes of their babies and wives and children and grandparents and other family members, potentially exposing them as well. Radiation is colorless, odorless and tasteless...without a radiation detector, there is no way to know if radiation is present or how much exposure there may be.
The Town has refused for years to pay for Mr. Perks' legal fees when he was falsely accused of an assault in a Town Board Resolution. The resolution was passed in order to spend nearly $100,000 dollars to hire a Fact-Finder to investigate the alleged assault by Mr. Perks of a Town Councilwoman., Susan Scarpati-Reilly.
According to Supervisor, Frank Petrone, they did so because there were multiple media reports that had already exposed the alleged assault. The problem is there were no media reports about an assault at that time. However, the press had a field day with the "Horny Harbormaster and the Town Councilwoman" stories-- for years after that. Almost all of the news outlets ignored the serious issues about the radiation and were only focusing on the sleazy alleged affair between the two and the myriad of cross-accusations and lawsuits they were able to exploit to sell papers.
The Town refuses to pay Mr. Perks' legal fees to this day...continuing to spend millions in order not to have to pay what originally was a bill for about $70,000 submitted by his attorney, Mr. Edward Yule. That original legal bill has now burgeoned over these many years of forced litigation by the Town, to over five million with interest that was awarded by Judge Joseph Farneti, after the years of continued arbitration and in an appeal by the Town of Mr. Perks' legal fees for his attorney, that were awarded by the arbitrator.
The Town has now paid for over fourteen years of litigation and spent millions in attorney's fees in order not to have to pay Mr. Perks' original legal fees of about $70,000 dollars. They continue to waste the taxpayer's money to the very present day, even though arbitration and Judge Farneti's decision sided with Mr. Perks and his Attorney, Ed Yule and said that the Town is responsible for Mr. Perks' legal fees because they were always covered by his union's collective bargaining agreement.
To this very day, the Town insists on spending more taxpayer money in legal fees to now appeal the Judge's Decision that supported the arbitrator's decision saying they should just pay Mr. Yule.
Conversely, Huntington Town has willingly and pretty much without questions spent millions in legal fees over fourteen years to pay for the defense of litigants sued by former Town Councilwoman Scarpati-Reilly and for her and their own defense against a sexual harassment lawsuit brought against her and the Town by Mr. Perks. The jury decided Ms. Scarpati-Reilly did sexually harass Mr. Perks, but did not hold the Town liable for her actions and awarded Mr. Perks no monetary compensation.
He Said...She Said...
He Supplied DNA...She Refused to...She Shut Up
Mr. Perks has always testified that he had an affair with the married Councilwoman and Ms. Scarpati-Reilly has always denied that. However, when Ms. Scarpati-Reilly sued Mr. Perks for defamation based on his assertion they had an affair, she said he was lying. He said he had DNA to prove he wasn't...the judge insisted she supply DNA to compare to blood and hair samples Mr. Perks said he obtained from his houseboat where he alleged the affair had taken place on occasions.
Ms. Scarpati-Reilly did not appear at several scheduled court appearances and never submitted to the court ordered DNA testing. So the Judge warned her once more on the record in open court, that she had to submit her DNA by a certain date, because after all, she was the one who was suing Mr. Perks saying he was lying about the affair. Mr. Perks' defense was that what he was saying was true and the DNA could prove that-- he asserted. When Ms. Scarpati-Reilly again did not comply with the court ordered DNA test, which was just a cheek swab, the judge noted and so it was not invasive as she had claimed earlier, according to court documents, when she failed to comply again, the judge dismissed her defamation case against Mr. Perks.
Mr. Perks kept filing grievances for himself and also on behalf of the other employees, because they never had the proper training or Haz-mat gear to protect them from exposure to radiation, he said. Even the DEC personnel assigned to the incinerator in East Northport, when the newly installed radiation detector continued to go off-- admitted to Mr. Perks they had no training related to radiation exposure whatsoever. When told the alarm was continuing to go off... the background level was raised five points higher so then, according to an interoffice memo, the alarm didn't go off as much after that.
The document in question was about the radioactive waste and dated May 18, 2000 from the facility manager at Ogden Martin; Thomas Chambers. It shows that from January to April of that year there were 25 incidents of radioactivity at the plant. Mr. Chambers wrote:
“With the exception of (3) ferrous metal loads returned from Gershow recycling most all incidents involved metal isotopes utilized in diagnostic testing. In the beginning of April 2000 we raised the detection level of the Bicron radiation detector to (5) times background and therefore the amount of detections dropped off considerably in April."
According to testimony of former Huntington Town Councilwoman, Susan Scarpati-Reilly, (from her deposition in a federal court case) the Town Board knew about the radiation at the plant as far back as 1994/95, but they handled it and took care of it in the private and undocumented Town Board Executive Sessions... because in Ms. Scarpati-Reilly's exact words, they were concerned about "litigation".
Radioactive isotopes were found in the fly ash of the burned scrap that was buried in the landfills to cap them. When tested it was revealed they contained radioactive isotopes with half lives of several billion years.
On February 18, and May 12, 1999 NDL Organization Inc. located at 1000 Lower South Street in Peekskill, New York, conducted an analysis under Gamma Spectroscopy of the Ash Content, Debris and Sludge (Slag & Debris) from the Ogden Martin Facility at 99 Town Road in East Northport and found that it contained: Thorium 232, Uranium 238, K-40 (Potassium) and Cesium 137.
Uranium-238+D at 8.6 pCi/g Half Life: 4.46 Billion Years
Thorium-232 +D at 91.2 pCi/g Half Life: 14 Billion Years
K-40 (Potassium) at 0.94 pCi/g Half Life: 1.25 Billion Years Cesium-137 at 0.82 pCi/g Half Life: 30 Years
Thorium- 232 is classified as a carcinogenic and emits alpha particles. It is extremely insoluble, but can become more soluble in the presence of high concentrations of organic materials.
Uranium-238 emits alpha particles. They are less penetrating than other forms of radiation, and weak gamma rays. As long as it remains outside the body, uranium poses little health hazard, if inhaled or ingested, however, its radioactivity poses increased risks of lung cancer and bone cancer. Uranium is also chemically toxic at high concentrations and can cause damage to internal organs, notably the kidneys.
Half-life is the period of time it takes for a substance undergoing decay to decrease by half. (Information from: The Environmental Health Division of the Wisconsin State Laboratory relating to Radiochemistry)
Here is part three and the final part of the deposition from Susan Scarpati-Reilly...
In the matter of William T. Perks against the Town of Huntington and Susan Scarpati-Reilly as Councilwoman for the Town of Huntington and individually heard in United States District Court of the Eastern District of New York.
Rains & Pogrebin Lawfirm:
Ernie Stolzer, attorney for the Town of Huntington
James (Jim) Clark, attorney for the Town of Huntington
Jason Abelove, attorney for Susan Scarpati-Reilly
Edward Yule, attorney for William Perks
The deposition of Susan Scarpati-Reilly took place over several days and generated over a thousand pages of testimony.
March 12, 2001
April 5, 2001
April 19, 2001
April 20, 2001
April 23, 2001
May 7, 2001
The following is an account of the testimony contained in the deposition on MAY 7, 2001, the last day of the deposition.
THE DEPOSITION OF TOWN COUNCILWOMAN SUSAN SCARPATI-REILLY
May 7, 2001
At the end of the last deposition day, April 23, 2001 Ms. Scarpati-Reilly allegedly tossed an Exhibit at Mr. Yule, the attorney for William Perks and yelled at him and his client to stop staring at her and walked out of the deposition. The characterization of her actions was objected to by Ms. Scarpati-Reilly's attorney, Jason Abelove and the subject was left for a judge's ruling.
The deposition picked up where it left off and Mr. Yule showed the witness an exhibit and began the questioning again.
The common political affiliations between Mr. Perks and Ms. Scarpati-Reilly eventually caused them to become closer socially and in 1996 he would call her and tell her his marital problems. They had lunch together often and Ms. Scarpati-Reilly enjoyed his company because he was funny, personable and engaging according to her description. Their friendship was close until the incident at the Mobil Oil Transfer Station on February 28, 1999 she testified.
Ms. Scarpati-Reilly said she had a meeting in December, 1998 with Mr. Nolan, Mr. Perks' director, Mr. Anastasia, the head of Maritime Services Division and Josephine Jahier, who showed up late.
LILCO apparently owed about $16,000 dollars in permit fees and this was a matter for discussion, according to the deposition. Mr. Yule then asked about a 12B6 motion Ms. Scarpati-Reilly submitted to Federal Court. There was an affidavit submitted with the motion and the judge ruled that was not proper. In the affidavit Ms. Scarpati-Reilly wrote, "I feel it imperative to stress to this Court that not only did I never have a sexual relationship with the plaintiff, I never threatened the plaintiff with the loss of his job."
The Fact-Finder's report was full of "non-facts", according to Ms. Scarpati-Reilly and she reiterated that she did not believe asking Mr. Perks to submit his resignation did amount to threatening him with loss of his job.
Q: Do you still believe that today, that you never threatened him with loss of his job?
Q: Then you wrote, there's a comma, "other benefits of his employment." Do you still believe that you never threatened the plaintiff with the loss of other benefits of his employment?
Q: What about you never threatened the plaintiff with criminal prosecution?
A: Never did.
Q: Didn't you go to the police station on February 28, 1999?
Q: Didn't you go to the DA's office a couple of times thereafter?
Q: Didn't you speak on the phone on a number of occasions with persons, whether they be secretaries or actual ADA's of the Suffolk County District Attorney's Office?
When she went to the Mobil Oil Transfer Station that rainy Sunday evening, she said she was upset because Mr. Perks was out of uniform, didn't have the truck and equipment she felt he needed to do his job and she wanted to speak to him about permit and summonses that should have been handled the prior summer.
Mr. Yule asked the witness what rule or Town code required Mr. Perks to have equipment in his truck and she could not cite any specific rule or law. Mr. Perks has insisted the equipment he needed was at the station and he didn't need to have the Town truck and equipment in order to do his job that night.
BACK TO THE 2ND PRECINCT...
Mr. Yule asked Ms. Scarpati-Reilly if she ever asked the police to have Mr. Perks "locked up".
A: I was going home. I didn't have any time to write out an affidavit and play around with the police department. It takes two or three hours in order to do all that. I didn't have the time, I had people waiting for me.
Q: Did the police tell you that you had to wait around and fill out all sorts of paperwork before they would lock him up?
A: Did the police tell me that?
A: I have my knowledge of bringing clients down in the past for that kind of situation.
Q: But when you went to the precinct did you say the words "I want you to have him ," quote, "locked up." end quote?
Q: Did you ever say I wanted him arrested?
Q: --"right now"?
Q: Then you went on to say in this affidavit, "because I was assaulted." You wrote that word "assaulted"?
A: I didn't write it. My attorney prepared this.
Q: But you signed it right?
A: Yes, I did.
Q: You signed it under penalty of perjury?
A: Sure did.
Q: You know the difference between assault and harassment; right?
A: Yes. I do.
Q: When you went to the precinct, did you ever tell them that you were assaulted?
A: No, I told them I was slapped on the arm.
Mr. Yule asked about a subpoena Ms. Scarpati-Reilly had received to appear in Mr. Perks' arbitration case and if she thought it was still good. She said, the Town Attorney, Thelma Neira told her she no longer had to appear under subpoena at a meeting they had a week prior to discuss the arbitration.
Then Mr. Abelove and Mr. Clark both objected to any more questions regarding their conversation, once again citing privilege.
The attorneys proceeded to argue whether or not Mr. Yule was badgering Ms. Scarpati-Reilly, Mr. Yule insisted he was merely asking questions and continued with the examination.
In the affidavit, Ms. Scarpati-Reilly used the word "assault" and Mr. Yule pressed her about it.
Q: You used the word assault in this affidavit. What's the definition of assault?
A: Which form?
Q: Well, when you used it here in the affidavit.
A: It could be a civil assault, intentional striking of an individual.
Q: So that's what you meant, a civil assault, when you wrote that in there?
A: I didn't write this. This was prepared by my attorney.
Q: But that's your signature on it?
A: Yes, and I overlooked that when I signed it. I just ran--I think I testified already that this was not worded the way I would have worded it, but it was worded by my attorney. He wasn't available when I signed it. I was under pressure to get it done quickly, because he was under pressure to get it done quickly because of time restraints and so I didn't get an opportunity to go word by word with my attorney and I guess I didn't really notice it at the time. I just went through it.
Q: Did you ever notify the Court that it was an error?
A: No, but I will.
Q: Two years later?
A: Yeah, I am just noticing it.
Q: Did you notify the Town regarding your use of the word assault in an affidavit was a mistake?
A: I just found out about it, so I will notify the Town. I think they're here. So notified.
Mr. Perks said that Ms. Scarpati-Reilly initiated the contact with Court by submitting an affidavit of her own volition that was ruled out of order by Judge Mischler. Mr. Perks, said "The time constraint was created by her own actions in an attempt to derail her original assault charge, which by now was a runaway train with Frank Petrone as the engineer and conductor and the Town Board as passengers, while taxpayers bought the ticket."
Ms. Scarpati-Reilly had written in her affidavit that the most serious portion of Mr. Perks' conversation with Mr. DeGregorio, was the fact that "he wants us to change the story. He wants me to go to the police, was threatening that I had to change my story, tell them it wasn't me."
Mr. Perks asked in a recent interview, "Why would anyone ask her to go back to the police that she had already spoken to and try to tell them it wasn't really her? That it was a man pretending to be her? Does that make sense to anyone...? The DA didn't think so either."
She continued, "Yeah He threatened me. He threatened that I was going to be found dead if she didn't change the story and tell the police that it wasn't me who filed the incident report."
Q: Did you tell the Assistant District Attorney that it was really tampering with a witness? That you felt that was the charge that should have been brought against Mr. Perks?
A: I told--it was a litany, a litany of things, but I believe I would leave that up to their discretion. It was more I guess, Mr. DeGregorio.
Q: Did you ever tell the DA that Mr. Perks threatened your life?
Mr. Perks said, "In previous depositions she said I threatened she would be found dead on the side of the road from suicide....the officials didn't buy that story, so now she changes her original premise and now she includes the threat against her life by me...She no longer says suicide, now it's a threat of murder. So we've morphed from a slap on the arm, to assault, to threat of suicide, to threat of murder...and still no one is biting. Now she is dragging Mr. DeGregorio into this." Mr. Perks added "She said it was up to the DA's discretion...they referred her back to the police and by March 11th she had already told the police she didn't want to go any further with the complaint...but that didn't stop the Town from going forward with their own in-house investigation against me."
Mr. Yule then showed the witness Plaintiff's Exhibit 30, a memo Ms. Scarpati-Reilly wrote to Mr. Perks dated November 23, 1998 and it had her initials next to her name.
The memo was related to the need for additional employees to be certified and trained as on-scene incident commanders or hazardous material technicians. At that point in time, only Mr. Perks was qualified and Mr. Acker and Rick Rollins had failed to become certified because they both failed the exam. Or as Ms. Scarpati-Reilly described it, "Obstacles were put in the way." As a result she asked Jody Anastasia and the Oil Spill Control Board to schedule another exam, so they could become qualified.
Mr. Acker's management status made it difficult for him to assign him to inspect tankers on overtime, Ms. Scarpati-Reilly said and that was why in the memo she wrote to Mr. Perks, "Therefore, you can assign another employee to cover ship inspections during non-working hours." This was an authority that Mr. Perks had as Oil Spill Response Manager, she said.
At some point there was a complaint from Matt Gross about the overtime, but Mr. Acker and Mr. Rollins were not certified to handle oil spills. She also asked Mr. Perks to prepare a weekly schedule to assign personnel to be on call in case there were a tanker inspection, but she had no idea if he ever did that.
Mr. Perks was more qualified and more highly certified to handle oil spills than any one else at the Town, including his bosses; Peter Waznys, Phil Nolan and Josephine Jahier.
According to Mr. Perks none of the three had any training or practical experience or certification in any of the requirements of the job. Jody Anastasia had some qualifications and experience from his service in the Coast Guard, but the Town refused to allow Mr. Perks to work for him as harbormaster. "They insisted on making me work out of title and classification at the landfill as hazardous material's coordinator.", he said.
When asked why Peter Waznys didn't write the memo to his employee, Ms. Scarpati-Reilly said he asked her to do it.
Q: Peter Waznys as director, asked the Councilwoman to write a memo to Waznys's subordinate?
Switching to Exhibit 30A; an interoffice memo from Susan Scarpati-Reilly to Mr. Perks dated November 23, 1998 and a draft memorandum prepared by Bob DeGregorio dated September 17, 1996 Mr. Yule, then showed her a memo dated November 24, 1998 from Mr. Perks to Susan. She could not recall receiving the memo, but it was most likely given to Mr. Yule by her attorney she agreed. She said she got quite a few memos in 1998, but she didn't always read them all, sometimes she just glanced at them, then filed them.
Ms. Scarpati-Reilly attended all the meetings of the Oil Spill Response Board, but it was Mr. Perks who really chaired the public meetings and set the agenda, although all members shared their opinions, she testified. Despite the fact that Patricia Del Col was the director, Ms. Scarpati-Reilly said she was asked by Ms. Del Col to distribute the Standard Operating and Notification Procedures on behalf of the Oil Spill Control Board.
Ms. Scarpati-Reilly said "I stepped into the shoes of Frank Petrone to do that." She did that because Frank never did it when asked to by Pat Del Col and she wasn't sure if Frank told Del Col to ask her to do it, but Pat said to her, "Here on behalf of the Oil Spill Control Board, you send it out.". She could not say why Mr. Petrone didn't send out the cover letter himself. There was considerable discussion of how far back they could go on charge backs and it was decided one year was the limit.
"THE LIE...The Shower"
Questioning by Mr. Yule shifted to a previously identified web page (Plaintiff's 21) from August or September of 1999, written by Ms. Scarpati-Reilly.
Q: Why did you feel the need to put a website entitled quote, "The Lie", end quote?
A: Because that was what the press was--the terminology of the press.
Bob DeGregorio did not help her write that, she said.
Mr. Matthews, the Town Attorney, first heard of the incident of February 28, 1999 when he went to Mr. DeGregorio's home on March 7, 1999 and met with Ms. Scarpati-Reilly and Mr. DeGregorio. Testifying she believed Mr. Matthews was there in his official capacity he told her that she was "doing the right thing". She could not say how long the meeting lasted and she was there as a Councilwoman as she is always acting in her official capacity 24 hours a day, clarified by Mr. Abelove that when she is taking a shower, even though that is not an official duty, "The Councilwoman is in the shower."
Similarly she said, when asked if Mr. Matthews was there as a friend or in his official capacity as Town Attorney, "The same thing. He is a lawyer. He never takes that off. He also had an appointment. He never--he can't shake that. That's what he was."
A: Just like a police officer, 24 hours a day. You're on duty 24 hours a day. Same exact thing.
Ms. Scarpati-Reilly said she assumed that at the meeting set up by Bob DeGregorio with Mr. Matthews, he was acting on behalf of the Town in capacity as Town Attorney.
Then as the three of them sat at the table, she testified, John Matthews took her hand and Bob's hand and said a prayer. There was no question on the table at the time, "At the end of our discussions, he grabbed both of our hands and said a prayer."
A short five minute break was taken and the questioning continued about the "incident" on February 28, 1999.
Q: Councilwoman, from February 28, 1999 until March 9, 1999, did Mr. Perks ever tell you directly he was going to kill you?
Q: Did he ever say he was going to kill your family?
A: I never talked to Mr. Perks except for March 3.
Q: Did he tell you then that he was going to harm your family.
A: He said my children would suffer.
Q: He said your children would suffer?
A: He said they would be hurt.
Q: Of course you went to the police after that; right?
A: I went to the District Attorney's office.
Q: What did they do?
A: I--I told them--what did they do? I told you what they did. I was waiting for Mr. Cohen to get back to me and I spoke to Mr. Cohen. At that point he advised me to proceed to the police if I was to choose that route and then I decided the fact-finder had been appointed and I would handle it in that fashion.
There was a discussion between Ms. Scarpati-Reilly and Mr. Ed Hennesey where it was mentioned that if Mr. Perks didn't cooperate with the Fact-Finder and she didn't either, then they would have nothing and there would be nothing to investigate. Ed Hennesey, was contacted by the union (by his own brother Harry) and asked Ms. Scarpati-Reilly if she would accompany him to speak with Mr. Yule.
She said Ed Hennesey did not encourage her to plead the 5th when she spoke to the Fact-Finder, nor did Harry. She did let the Fact-Finder know that Perks had threatened her children and her life she testified and Mr. Labush made no comment but "was concerned" she said.
Plaintiff's 20, the Ethics Board web pages, were shown to her and she said she wrote them but had Mr. DeGregorio review them prior to publishing them. He suggested grammatical changes, but wasn't acting as a Town Attorney she said because he wasn't employed by the Town at that time. Then she said he hadn't been appointed by the Town. Records show he was dismissed by the Town as Environmental Counsel at that time and re-hired as outside counsel when he asked them for numerous sick and vacation days he had no in no way documented, but demanded to be paid for. He never punched a clock and no one had kept track of his time, except him.
In paragraph 68 of the website she wrote a letter to the press apologizing for "misstatements" and in the letter she said, deponent, referring to herself "was careful not to mention Perks' threats of being found dead from suicide. This was done at the explicit instruction of the District Attorney's Office."
Mr. Perks noted: "Now she is saying that the District Attorney's Office had instructed her to change the story and it is back to suicide."
"DEPENDS ON WHAT YOUR DEFINITION OF A LIE IS"
Maureen McCormick, the Suffolk ADA, specifically told her to do that Ms. Scarpati-Reilly testified.
A: I told them I had lied to the press. They said they weren't telling the press anything either. I said that I had to send a letter of apologies to them and um--as a result, they said, "Well be careful not to talk about the threats that I was to be found dead through suicide" because it was still at that point in time being discussed whether we were going to try and put a tap on his phone and have him speak with Mr. Perks and see if Mr. Perks would again make those threats and to obviously--
Q: Why did you have to send a letter to the newspaper?
A: I just felt it was my obligation, as an elected official to apologize to the public for stories that were being written that week.
Q: You wrote a letter apologizing for your lying?
Q: Would an analogy for a misstatement be a lie?
A: Depends on what your definition of a lie is. I don't know what your definition is. You call me a liar all the time, so I don't know.
Q: What is your definition of a liar?
A: There were misstatements. I was trying to protect myself and my family from harm.
Q: Physical harm?
A: Yes, yes.
Q: But what's your definition of a lie?
A: Maybe not completely truthful.
Q: I mean you even referred to yourself a few moments ago of having lied; right?
A: I don't know. Can I have that read back please?
MR ABELOVE: (Ms. Scarpati-Reilly's attorney) I honestly don't remember her saying that, so--
Q: (YULE) I'll ask you another question then. Would it be an accurate statement to characterize your false statement to the press saying it wasn't you who filed the complaint and then later apologizing for that as lying to the police?
A: (Scarpati-Reilly) It was extortion. Mr. Perks was extorting me, coercing me into telling the press these particular misstatements in order to, I guess, further his own, I guess, benefit. And for me I was being threatened, my family was being threatened.
Q: As a result of that you lied?
A: As a result of that I followed Mr. Perks' instructions to protect myself and my family.
Q: But those instructions, you say they were from Perks? You got them directly from DeGregorio; right? You never got them directly from Perks?
A: No, directly from Perks.
Q: You did?
A: Yes, I did.
Q: When was that?
A: On March 3, in a telephone conversation I had with him.
Q: Then after that telephone conversation you went to his house?
Mr. Perks upon reading this part of the transcript said, "Now she is accusing me of extortion and coercion and is saying I told her to lie to the press, when just a few paragraphs earlier she said it was the DA..."
Mr. Yule then asked about the Ethic's Board report and Ms. Scarpati-Relly said she had read it.
Q: Is it fair to say that they did not believe your version of the facts that Perks had threatened your life?
A: I think the document speaks for itself.
Q: Did they believe you?
A: I have no idea. I have never spoken to them.
Q: You read their report right?
A: Yeah, a long time ago.
Ms. Scarpati-Reilly said she removed her web page about the report, but did not know when she did so.
"This all happened in the space of a few months and she had written a rebuttal to their report." Mr. Perks said, "So how could she possibly have forgotten that so quickly?"
Conflicts of interest between attorneys was the topic next up on Mr. Yule's roster and Ms. Scarpati-Reilly did not find any problem or conflict of interest when she met with Town Attorney, Matthews and Bob DeGregorio in Mr. DeGregorio's home. There was no problem with them praying together that day. Then Mr. Yule showed her a quote from Mr. Matthews from a press release where he said:
She believed the quote was from the Observer and Huntington News article dated August 19, 1999.
"Ultimately we believe that a judge and/or jury will dismiss all claims against the Town. To the extent that Mr. Perks has any claim of harassment, we believe it is between Mr. Perks and Ms. Scarpati-Reilly." (Town Attorney; Jim Matthews)
When asked, she said she did not believe after reading it that Mr. Matthews had a conflict of interest when he met with her that Sunday at Mr. DeGregorio's home.
Next she was asked if she thought it was a conflict of interest for her to represent her husband and children in the defamation case where she could have been called as a material witness. Mr. Abelove objected, instructed her not to answer and it was marked for a ruling.
She was asked if she thought it was a conflict of interest when she spoke to Laura Perks and she did not.
She did tell Mr. Labush that before the vote on the resolution appointing the Fact-Finder, that she tried to let Mr. Petrone, the Supervisor and Mr. Matthews, the Town Attorney that the word assault was not correct or accurate and was a mistake "and needed to be changed."
Q: When did you tell him that?
A: I told him in the informal interview as well as in the deposition.
Q: But you didn't mention it in the deposition?
A: I did mention it in the deposition.
Q: What did you say in your deposition, to the best of your recollection?
A: I said that I had confronted Jim Matthews as well as Frank Petrone over the word of assault and ask that it be changed.
Q: Why were you involved in discussions of the resolution when you abstained from the vote?
A: Because the resolution, I had to make--I had to vote on it. I decided after reading the resolution that I abstained on it.
Ms. Scarpati-Reilly said she didn't make a public comment on it because she thought she had made adequate representation to the Town Attorney and to the Town Board Supervisor. Then she also told the Fact-Finder who was supposedly investigating on behalf of the Town, that it was done improperly.
Ms. Scarpati-Reilly used the word assault in her affidavit to the judge. When confronted about that fact, she said, "I didn't. I told you I reviewed that very quickly. I did not catch that at the time. I just caught it today when you showed it to me."
Q: You mean you caught it the last time when I showed it to you just before you walked out.
A: I don't believe so. I don't think I got to that page yet.
(Editor's Note: She had gotten to that page and she was shown it at the last deposition day.)
Q: The last thing you'd like to see is Mr. Perks have his attorney paid for during that investigation; is that a fair statement?
MR. ABELOVE: During which?
MR. YULE: The Fact-Finder.
MR. ABELOVE: Objection. That's just badgering her.
MR. YULE: No it's not.
MR. ABELOVE: I think the last thing she'd like to see is her kids getting murdered.
MR. YULE: Maybe you should check the witnesses out before you make statements about Perks' alleged threats about their children because no one in the world seems to know about these threats.
MR. ABELOVE: Objection. I mean you are badgering the witness.
MR. YULE: I'm talking to you in response to your statement.
MR. ABELOVE: But you're being sarcastic.
MR. YULE: And so--
MR. ABELOVE: --and totally unprofessional.
MR. YULE: So are you.
MR. ABELOVE: What's sarcastic, the comment? I objected on the record.
MR. YULE: I will not argue Jason--
MR. ABELOVE: --and you came back with sarcasm.
MR. YULE: You stated my client was going to kill her kids, but there is not a single person in the DA's Office that will back you up.
MR. ABELOVE: All right. That's it. I mean any more of this and I'm ending this deposition because it's totally inappropriate. Now you're pointing at me and giving me attitude and being argumentative.
MR. YULE: I'm asking you to stop calling my client a murderer.
MR. ABELOVE: When did I call your client a murderer?
MR. YULE: Well, you'll read the transcript.
MR. ABELOVE: Read the transcript from what? No I didn't.
The verbal volley between attorneys finally ended and Mr. Yule showed Plaintiff's 22 to Ms. Scarpati-Reilly. She said no one had helped her write it and no one reviewed it before she published it. In it she said Mr. Perks falsely accused her of sexual harassment, but could offer no proof except her testimony.
Ms. Scarpati-Reilly stated that Mr. Perks had not substantiated his claims of sexual harassment, however a jury in United States District Court eventually found her guilty of sexually harassing Mr. Perks, but released the Town from any financial liability and awarded Mr. Perks no financial remuneration.
The next few questions referred to transfer of funds from the Oil Spill Trust and Agency account that Ms. Scarpati-Reilly had sent a memo to the comptroller asking about. Josephine Jahier and Phil Nolan were the ones that got the printouts of the shortfall and Ms. Scarpati-Reilly could not say for sure if Mr. Perks was ever notified.
Winding down the questioning Mr. Yule asked if Ms. Scarpati-Reilly ever told Mr. Matthews that Mr. Perks had assaulted her. She said "No.".
Q: Did you ever tell the District Attorney's Office that you were the subject of extortion?
A: They're the ones that told me.
Q: Which one?
A: I don't recall which one.
Q: Either Mr. Williams or Ms. McCormack?
Q: At that meeting when you were there with Mr. DeGregorio--
Q: --Did you ever tell the Fact-Finder that you were the subject of extortion?
A: Um--I believe he also acknowledged that.
Q: How did he acknowledge that?
A: We had a conversation about the fact that I was being blackmailed. That's why I believe in the transcript he asked me if I felt I was coerced.
Q: Did you ever tell the police that you were the subject of extortion?
A: No. I only talked to the police to make an incident report on February 28 and when I talked to the sergeant concerning the actual incident on--on the 8th of March, that I had decided at that point in time not to pursue any more discussions with the police department.
Q: Did you ever say to Sergeant Hunt that you had a change of heart?
Q: Did you ever tell Kenneth Kelly (the Fact-Finder's investigator) you had a change of heart?
Q: Did you ever tell James Matthews about the extortion, blackmail and death threats?
A: Um--Mr. Matthews didn't want me to go into too many specifics.
Mr. Perks said he could not believe that "Now in addition to : being out of uniform, having no Town truck, slapping her in the head, then on the arm (that slid off because it was raining and she had on a slicker, then harassment, then assault, then threat of suicide on side of road, then attempted murder of her and her children, then extortion and coercion and now blackmail has been added to the list of allegation against me. To this day no one from the Police or the District Attorney's Office or the Town Ethic's Board has ever contacted me to discuss her allegations." Clifford Bart, the Town's outside counsel in this matter admitted twice on the record that the Town did not dispute Mr. Perks' version of events that night.
Questions about her conversations with Mr. Matthews and questions about off the record statements to the Fact-Finder were not answered with Mr. Abelove claiming privilege.
Q: You talked in your last deposition about Tuohey having the proxies on the vote for the republican party. Do you remember that? There was some talk of that?
Q: Did you find yourself being in a difficult position, you being in fact Tuohey's superior, being elected Councilwoman and him having the authority over you in a sense as a republican by having proxies?
A: I find an extreme conflict of interest for the republican party, as well as the conservative party, to have employees of the Town judge you when you go to stand before them, but that is the system.
Q: Do you think it is illegal to trade proxies for a job?
Q: Do you that was done in the Town of Huntington?
Q: You think it involved Mr. Tuohey and the republican party?
A: It involved Mr. Tuohey and the supervisor.
Q: Do you believe Petrone by condoning that or being involved in that, participated in something that was illegal?
A: I guess the people will judge that fact.
Q: Did Tuohey trade his vote with the supervisor?
A: I can't answer that question like that.
Q: Did Tuohey trade his proxies to go along with what Supervisor Petrone had wanted in order to settle his grievances?
A: To get more than what he had requested to settle his grievances.
Ms. Scarpati-Reilly said she didn't go to the Public Integrity Unit of the DA's Office about this.
"Unfortunately in Town government, I see a lot of things that I think are very questionable. I don't go running to the police department or the District Attorney's Office to report every single thing that I see.
If it hurts the public, yes, I would. Did it hurt the public in this fashion, no."
Previously Ms. Scarpati-Reilly testified that radiation being burned in the Ogden Martin Facility was discussed in secret Executive Session meetings as far back as '94/95. They "took care of it" she stated, but never informed employees or members of the public that may have been exposed to deadly radiation, because the Town was worried about "Litigation."
Q: As a result of those proxies that Tuohey traded, did Mr. Tuohey earn more money as a result of that working for the Town?
MR. ABELOVE: She said she believes that he traded. It's her opinion.
MR. YULE: Yes, understood.
A: He had gone from a grade 10 to a foreman 3.
(That is a huge jump from a blue collar employee into the supervisory unit which was only one position from the top.) Mr. Perks said, "Everyone was aware of what had transpired and it set a terrible precedent again."
Several questions later:
Q: Do you believe Brian Tuohey and George Hoffman were in conspiracy together to get you around the time of the Mobil Station?
Q: Did you ever get Perks a laptop?
A: Did I ever get him a laptop? I never got him one personally.
Q: Did you use your influence in any way to get Perks a laptop for his job as oil spill response manager?
A: Pat Del Col asked me to look into it and I did it for her.
Q: So you got it for Pat Del Col at her request for Perks?
Apparently General Services had gotten an extra one and instead of sending it back, Pat Del Col asked if they could purchase the second one and so Susan Scarpati-Reilly approached Bob LaBower (really Labua) and asked if they could purchase it for use by the Oil Spill Control Board.
Up to that point Mr. Perks typed at least 500 memo's by himself, without any support staff, so the laptop would be very helpful, Ms. Scarpati-Reilly testified. She had turned all those memos over during discovery and had received a copy of all of Mr. Perks' grievance through discovery as well.
She saw his personnel file through discovery and reviewed it with her attorney in advance of the litigation.
Mr. Yule directed Ms. Scarpati-Reilly's attention to January of 1998 and a reorganization meeting regarding the budget and a statement she had made about it to the Fact-Finder...
"They said I could have the truck, even though we had the money in the account."
The "they" was the Town Board and the money was in the Trust & Agency account.
Q: Is it fair to say that you sided with Frank Petrone on the rest of the vote, the rest of the Town vote, and then they voted to get the truck?
Q: How did it come about that you compromised your vote, not compromised, but that you gave them a little something and did they give you something back in return, which included the truck for the oil spill response manager?
(After a brief objection to form...Ms. Scarpati-Reilly answered)
In the course of business, when the resolution came up, we discussed in an executive session, the reorganization with a new administration coming in. They wanted to put in 200,000 plus in jobs for various people that they wanted to appoint and bring into Town Hall and to establish a whole brand new constituent service unit.
As a result of that, knowing how I felt about adding more jobs, they said to me in negotiations, you know, what--what would you like to add to this because I know the supervisor had some things he added. I believe the democrats, themselves, had decided amongst themselves what they really had wanted.
As a result of that, I negotiated for equipment at the park in East Northport. I negotiated for some seed money for the commercial fishing marina. I negotiated for some money for the nature center in Crab Meadow Beach and at the end of that, that session, they agreed to have the controller sign off on the purchase order for the oil spill response emergency vehicle, which had been pending for a couple of months, but that didn't require any kind of vote because that was something Pat Del Col had requested for about eight months and Frank and the controller's office had some discussions about it and they wouldn't sign off on it until such time as after the resolution passed. They agreed to let Mike Fabiano sign off on the purchase order.
Ms. Scarpati-Reilly denied giving her vote to the supervisor in order to get the truck, saying, "No. There was no vote for an oil spill response emergency vehicle." The Fact-Finder mentioned in his report that selling a vote would be considered criminal activity and for that reason and others forwarded the report to the Suffolk County District Attorney's and State Attorney General's offices.
Ms. Scarpati-Reilly said she had to file an Article 78 in order to get a copy of the transcript of her deposition with the Fact-Finder, because even after "Foil"-ing for it, they refused to give it to her.
Mr. DeGregorio had stopped by her home just the day before this testimony and she said had spoken with him concerning his upcoming EBT that he had been subpoenaed for. They also discussed the fact that he had gotten a position working for the Town "of counsel" and that he would be handling bank closings and such.
Denying that she discussed what he was going to say, Ms. Scarpati-Reilly said, "I think I may have said something to him in the very beginning, at least a month ago, I may have said something."
Q: You haven't said anything to him regarding what kind of questions I was asking you.
A: No. I usually described your demeanor to him.
Calling Mr. DeGregorio a good friend, but not her best friend she said she did not know if Mr. DeGregorio was going to show up for his EBT but he told her he had discussed the timing of it with Dave Besso. (Another attorney, representing Mr. DeGregorio).
Editor's question: Did the Town pay for Besso too?
Questions reverted back to topics already covered as Mr. Yule began to wind the deposition down to a close...
Q: What other Town employees, to your knowledge, submit daily logs as to where they plan to be each day?
A: I have no idea.
Q: Do you think it was proper for you as a Councilwoman to lobby on behalf of Perks' grievances with the union?
A: I lobbied on behalf of all the employees in the Town of Huntington, with the union.
The website she had first published around February or March of 2000, she said, but had changed it subsequently.
Ms. Scarpati-Reilly was then asked about the Town's sexual harassment policy and when she had first received a copy of it. She could not recall if she had received one in 1993, when she first was elected, but testified that she herself used to give lectures to the professors and assistant professors in sexual harassment policy at SUNY at Farmingdale; which she arranged through the Dean's office there. She did that either between '87-'89 or '88-'90, she wasn't sure, but it was for at least two years, she testified.
Q: Are you familiar with Sexual Harassment Law Title 7?
A: At this stage, no.
Q: No. Back then when you taught it?
A: At that point yes.
Q: From that point to now you lost your familiarity with Title 7?
A: I'm no longer doing civil--writing violations and such with the County. That was kind of an offshoot of that.
Lisa Baisley usually took complaints of that nature, Ms. Scarpati-Reilly said, but she herself, was writing a draft sexual harassment policy in conjunction with their attorneys.
Q: Did there come a time when it was formally voted on and adopted?
A: Pursuant to a consent decree, yes.
Q: You heard everyone here, Councilwoman, that they never--they testified that they never received any policy until sometime after this incident. There was a lot of testimony to that.
MR. ABELOVE: Objection.
Q: Do you disagree? In other words, did the Town distribute it's current sexual harassment policy that's in existence now, was it distributed prior to February 28, 1999?
MR. ABELOVE: Objection.
A: No. Not that one.
Q: Why didn't you correct the depositions if there were errors in the deposition of the Fact-Finder when you finally did see it?
A: Who was I going to correct and submit to?
Q: You could write a letter to the Fact-Finder.
A: It was a political document. The Fact-Finder got his pay and that's what he was supposed to do. He was no longer employed by the Town.
Editor's Question: Why didn't Ms. Scarpati-Reilly bring these allegations to the Public Integrity Division at the Suffolk District Attorney's Office?
The final questions referenced a NEWSDAY article dated Sunday, April 2, 2000 and Ms. Scarpati-Reilly underlined what she thought was wrong with it. She said she did contact NEWSDAY about the inaccuracies, but they never published a correction.
At that point Mr. Yule ended his deposition of Ms. Scarpati-Reilly.
THE TOWN CUTS ABELOVE LOOSE...
Mr. Abelove continued to represent Ms. Scarpati-Reilly in this and several other legal cases started by Ms. Scarpati-Reilly and the Town continued to pay his fees until 2002. The Town even paid his legal fees for a defamation lawsuit initiated against Mr. perks on behalf of herself and her family. This suit was dismissed when she refused on several occasions to comply with a court order to provide DNA to compare with samples Mr. Perks said he retrieved from his houseboat, when they had their liaisons there.
Editor's Question: Why would the Town pay for a personal lawsuit initiated by Ms. Scarpati-Reilly without knowledge or resolution by the Town Board?
On September 3, 2003 Mr. Abelove wrote a letter to Judge Joanna Seybert (USDC) who had been presiding over the federal court case brought by Mr. Perks against the Town of Huntington et-al and Susan Scarpati-Reilly for sexual harassment. (99Civ, 481 (JS) (MLO)
In this letter Mr. Abelove asks to be removed as counsel for Ms. Scarpati-Reilly because:
The instant matter had over 60 names on the witness list and over 10,000 pages of documents were involved and his client (Susan Scarpati-Reilly) had submitted papers to the court in which Mr. Abelove wrote,
"...she (Scarpati-Reilly) admits she has no intention of paying legal bills incurred. When I have brought this matter up to her she has started screaming at me, hung up the phone on me and has not spoken to me since November, 2002. The Town of Huntington (hereinafter "Town"), who by resolution agreed to pay Scarpati-Reilly's legal bills have proven, by their words and their actions, that they have no intention of paying any legal fees. Frank Petrone, the Supervisor of the Town, has unabashedly stated in a quote to NEWSDAY, "He's not getting another nickel, Town Supervisor said of Abelove, "I don't care how unfair it is." I have been advised by Thelma Neira, Esq., that the Town has advised her not to pay any more legal bills. Further as is detailed below and in the papers before this Court, the Town's actions illustrate they have no intention of paying any legal bills.'
"If Magistrate Judge Orenstein's Report and Recommendation (that he stay on as her counsel) is upheld, I will be in a position where: (i) my relationship with my client is irreparably damaged as, even if she begins to return phone calls, she will yell and scream at me when I raise the issue of payment; and (ii) I am forced to try a case without being fully able to prepare as there is no money to subpoena witnesses, copy exhibits, retain experts, etc. These are clearly grounds for relief."The Town had paid all the legal bills from November 1, 1999 through May 1, 2002. The Town had paid every bill submitted monthly by Mr. Abelove for the Scarpati-Reilly legal representation. Each bill was apporoved by Thelma Neira and paid within 150 days and on the rare occasion she had a problem with an invoice she would simply phone Mr. Abelove's office and it was resolved amicably, he wrote.
Then after May 1, 2002 at the conclusion of discovery and following the filing of a separate and lengthy complex Summary Judgement motion by the Town and Scarpati-Reilly, the Town initiated settlement discussions with Mr. Perks' attorney. The Town's proposal was rejected by both Mr. Perks and Susan Scarpati-Reilly. Right after the rejection, on or about May 31, 2002, Mr. Abelove received a letter from Thelma Neira stating he did not notify the Town in a "timely manner" that he had hired Charles Weintraub Esq. to be "of counsel" and that not only were they not going to pay for time spent by Mr. Weintraub, but that the Town was "claiming credit" for over $30,000 dollars of work that had already been approved and paid for by the Town. Ms. Neira also wrote that "The Town would not pay any future bills on certain items without descriptions that would violate the attorney-client work product privileges."
Mr. Abelove argued further:
It can be of no coincidence that the first time the Town objected to pay any part of my legal bills is after Plaintiff and Scarpati-Reilly rejected the Town's settlement proposal. It was only after such a rejection that my bills were re-reviewed with a new perspective, and the Town sought credit for items which had already been approved and paid for. Clearly the Town is seeking to gain legal advantage in federal action by refusing to provide Scarpati-Reilly with a defense.
Mr. Abelove said Judge Orenstein was wrong when he said the Town had not authorized the retention of a second attorney because the Town had paid bills for the second attorney as far back 2000, where the bills for two lawyers had been submitted and approved and paid for by the Town as far back as February 3, 2002 and they did not deny that fact.
Mr. Abelove noted that the Town waited months and in some cases years to question unauthorized and inappropriate charges and only did so "...at a time they seek to pressure Defendant Scarpati-Reilly to accept their settlement proposal."
Mr. Abelove also indicated Ms. Neira was now requiring him to divulge specifics of research, telephone calls and meetings in violation of the attorney-client and attorney-work product privileges.
Claiming he had not communicated with his client, Susan Scarpati-Reilly except for one time since November 2002, he said that phone call ended with her screaming at him and hanging up when he brought up the topic of legal fees.
Magistrate Orenstein noted "the staggering cost to the Town to bring in new counsel at this point in the litigation." Mr. Abelove countered, "The problem has been created by the Town, as they retaliate against Susan Scarpati-Reilly for not accepting their settlement proposal."
Finally, Mr. Abelove wrote to Judge Seybert that he had offered to reduce his future fees by 10% after the filing of his Article 78 Petition in exchange for the payment in full of the balance of legal fees owed (this as long as there would be a neutral third party to review future entries the Town might object to.)
The Town rejected that offer outright, offered no counter offer and advised Mr. Abelove's attorney that "...they would never pay any more legal fees to my office."
Editor's Note: But they did pay his fees and they are still paying....and there is no end in sight after 15 years.
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