In Our Opinion.
It’s Time To Pull The Plug On Larry Schwartz
It has come to our attention that the Westchester County Commissioner of Public Safety, Tom Belfiore, has been supplying Deputy County Executive Larry Schwartz with police intelligence, BCI Reports, on applicants for pistol permits, and other County residents. If true, the practice is not lawful, and constitutes an unacceptable
conspiracy, and usurping of powers by two public employees, neither of which are directly answerable to the public, and one of whom serves at the pleasure of the other. Sure, both were appointed by County Executive Andy Spano. And he, ostensibly, is answerable to the voters.
However, everyone knows Larry is the real County Executive. And, that situation is not healthy for decent, law-abiding citizens, whether applicants for a Pistol Permit, or not, because Larry’s lust for power and control knows no limit. From his perch on the ninth floor of the County Office Building, he has controlled Westchester County
Government, in all three of its branches: the Executive, of course; the Legislative, by it’s purse strings, with all of the funds raised from Democrats going into Andy’s campaign coffers for distribution as Larry sees fit; and the Judicial, similarly, historically in collaboration with individuals such as Guilio Cavallo, Nick Spano, and Jeanine
Pirro corruptly controlling the nomination and election process.
Under Larry Schwartz, County Government has been a ‘closed shop’ for nearly ten years. It’s not merely about patronage and money. Larry’s diabolical control involves indecency, and unconscionable, and unconstitutional, violations of individuals’ civil rights; in one instance driving a gifted young attorney and public servant, working
in the County Executive’s office, to suicide, a man whose only “disloyalty” was his unwillingness to betray his political party, the Democrats, and their candidate for District Attorney, Tony Castro, to join Larry’s scheme to re-elect Jeanine Pirro.
Larry never forgave David Meyer for his unwillingness to join the countywide race-fixing conspiracy of 2001. After pushing him from the office, he blackballed him everywhere he went, with every prospective employer. David, with a wife and two young children, pleaded with him, 48 hours before his plunge, to stop badmouthing him. But, Larry told him he would “never work again.”
We do not believe an individual as ruthless and conscienceless as Larry Schwartz ought to have a hand in the selection of who will be granted a pistol permit. He shouldn’t have had a hand in selecting the County’s solid waste hauler, either. However, because he did, we are doing business with a company from Connecticut that
the City of New York specifically would not do business with because of its Mob ties, and we are paying nearly twice the $70 million we once paid, and could have renewed for another five years, but for Larry’s control of the County Legislature.
One has to wonder about deals like that. Where do the unnecessary millions of taxpayer dollars squandered on a vender with, at best, a checkered history, really go?
We are not persuaded that the pistol permit application process should be taken from the hands of elected, County and Supreme Court Justices, and entrusted entirely to Larry and his cronies, simply because he has enlisted the support of the District Attorney’s Office. The relationship between that office and his has been far too incestuous to begin with. To be more specific, the DA’s so-called Public Integrity Unit has been a joke for years, a virtual oxymoron.
Elected judges are accountable to the voters, and their decisions are subject to scrutiny, due process, and recall. The same cannot be said for Larry and his gang. As We understand it the real question is: Why does County Executive Andrew Spano keep Larry Schwartz employed and in control, someone whose cruel agenda has injured, and turned away so many good citizens and public servants?
Our Readers Respond...
Dear Editor:
My name is Nicole Zumbo, and I just wanted to thank you for not forgetting my friend Robert Viscome. I live in West Harrison, and went to school with Rob all my life, from kindergarten, until that fateful day. I think it is great
how you have persued this story, and have reminded the people of Westchester of the lies, and deceit, that Jeanine Pirro has cast on this case, and many others. I myself witnessed John, and Beth’s, public mourning for Rob, and fell victim their deceit as well. They, along with Jeanine, the detectives, and those young men and
women who watched as my good friend lie dying on the floor, do not deserve to be let of the hook as easily as they have. I think of Rob everyday; this time five years ago we were celebrating in Cancun, Mexico together, and now look. I miss him dearly as do so many that had the good fortune of knowing him.
I thank you from the bottom of my heart for trying your best to remind people of him, and the injustice that surrounded his case. You are absolutely right, it is never to late to tell the truth, and I hope one day the guilty parties involved will stand up, and tell the community that they were wrong. West Harrison, misses him dearly, and we still five years later are mourning our loss, but with articles like, “It’s Never to Late to Tell the Truth” we
have hope that people have not forgotten our fallen friend. May his life have not been in vain. Thank You.
Nicole Zumbo
Dear Editor:
There have been several articles from the NY Law Journal covering Judith Kaye’s recent hoopla over New York State Supreme Court judicial pay raises. Their salaries are not meritbased compensation as $136,700 per year is guaranteed across the board whether their workload on the bench is productive or not. It is likewise guaranteed whether their competency has been questioned by litigants and brought before judicial review
boards, and when their judicial immunity essentially “unionizes” them as a protected work force. To my knowledge, a judicial seat is not forced upon them with whip and chain but, rather, is a career choice judges seek, like any other career application choice. Similarly, to other salaried employees, if satisfaction with the position is lacking, a career move is available.
Surely, a public service position is not the usual route for those eager to earn handsome salaries. Could there be perks to the job that are not disclosed to the general public’s knowledge that lure judges to these $136,700 positions of deprivation? On April 10 The New York Times reported that “the pay issue has galvanized
the bench. Judge Kaye said that some judges have urged work stoppages or slowdowns, which she would not condone.” Some lawyers and many litigants opine that there were in place, by the bench, work slowdowns and stopages already, if complaints of such are any indication. In fact, Judith Kaye said her proposed reforms, for which she asked an additional twenty months as Chief Judge, was to address the snail’s pace of litigation in a
court decried as crowded, costly, and traumatizing to the public.
It may be worthy to note that those before the New York State Supreme Court who are asked to pay the exorbitant and excessive fees of attorneys may not themselves get cost of living salary increases to afford the often frivilous litigation fees brought by these judges’ peers at the Bar. Ain’t life tough?
Westchester Guardian Reader
Name Withheld
Dear Editor:
I am writing to question the Con-ict of Interest in the One Stop Employment Center of Mt. Vernon. It is
the only One Stop owned by the Department of Social Services. Do you think they are going to refer jobs to
people on welfare, the very people they make so much money off ?
No they aren’t, they are the bloodsuckers of the poor. DSS has over 65,000 welfare recipients most of whom are not eligible for employment because of the various service programs and Workfare they must attend. The One Stop Employment Center has Welfare oriented programs, which have nothing to do with employment.
Department of Labor is a State run program, so how is it our local county government owns a One Stop Employment Center? People who want to work shouldn’t have to deal with the Department of Social Services
at all. The name of the Center is even a lie, you’d think there would be jobs lined up at a place called One Stop Employment, but in reality it’s just another place to lure people into the Welfare system.
Tracy King
Dear Editor:
Last week major New York City newspapers published articles covering the most recent actions of New York
State’s Chief Judge, Judith Kaye, entitled, amongst others, Kaye Calls Pay Impasse ‘Infuriating’, Raises Prospect Of Suit If Raises Not Approved; Kaye Prepared To Sue For Judicial Raises.
Then, there was an editorial in the New York Law Journal entitled, Bar Should Mobilize For Judicial Salary
Hikes, which now causes me to observe that the litigant/public opinion on these matters should be expressed to the same legislators as the Law Journal and other newspapers propose members of the Bar lift their pen and sound their voice to.
Sheldon Silver, Joseph Bruno and individual Assemblypersons may well be interested to learn that not every New York State citizen believes these jurists deserve a cost of living increase paid from taxpayers’ contributions.
Where are the performance reviews before these raises are considered earned? Where in the State Constitution
is it written State Supreme Court Jurists’ salaries are commensurate with the salary of Federal District Court
judges?
A few weeks ago, Judge Milonas suggested the mandatory retirement age of judges be extended. Last week, Judge Kaye proposed to ask State Comptroller Thomas DiNapoli and State Attorney General Andrew Cuomo whether the Judiciary may unilaterally move to increase judicial salaries should the Governor and Legislature not enact the pay hike. How will the acknowledged needed reforms of the Court occur when all emphasis has been on jurists, the length of their stay on the bench, and the compensation they receive while they’re sitting there?
Some twenty-month fix-it job, Judge Kaye!
A Concerned Litigant
Dear Editor:
My name is Nicole Zumbo, and I just wanted to thank you for not forgetting my friend Robert Viscome. I live in West Harrison, and went to school with Rob all my life, from kindergarten, until that fateful day. I think it is great
how you have persued this story, and have reminded the people of Westchester of the lies, and deceit, that Jeanine Pirro has cast on this case, and many others. I myself witnessed John, and Beth’s, public mourning for Rob, and fell victim their deceit as well. They, along with Jeanine, the detectives, and those young men and
women who watched as my good friend lie dying on the floor, do not deserve to be let of the hook as easily as they have. I think of Rob everyday; this time five years ago we were celebrating in Cancun, Mexico together, and now look. I miss him dearly as do so many that had the good fortune of knowing him.
I thank you from the bottom of my heart for trying your best to remind people of him, and the injustice that surrounded his case. You are absolutely right, it is never to late to tell the truth, and I hope one day the guilty parties involved will stand up, and tell the community that they were wrong. West Harrison, misses him dearly, and we still five years later are mourning our loss, but with articles like, “It’s Never to Late to Tell the Truth” we
have hope that people have not forgotten our fallen friend. May his life have not been in vain. Thank You.
Nicole Zumbo
Dear Editor:
There have been several articles from the NY Law Journal covering Judith Kaye’s recent hoopla over New York State Supreme Court judicial pay raises. Their salaries are not meritbased compensation as $136,700 per year is guaranteed across the board whether their workload on the bench is productive or not. It is likewise guaranteed whether their competency has been questioned by litigants and brought before judicial review
boards, and when their judicial immunity essentially “unionizes” them as a protected work force. To my knowledge, a judicial seat is not forced upon them with whip and chain but, rather, is a career choice judges seek, like any other career application choice. Similarly, to other salaried employees, if satisfaction with the position is lacking, a career move is available.
Surely, a public service position is not the usual route for those eager to earn handsome salaries. Could there be perks to the job that are not disclosed to the general public’s knowledge that lure judges to these $136,700 positions of deprivation? On April 10 The New York Times reported that “the pay issue has galvanized
the bench. Judge Kaye said that some judges have urged work stoppages or slowdowns, which she would not condone.” Some lawyers and many litigants opine that there were in place, by the bench, work slowdowns and stopages already, if complaints of such are any indication. In fact, Judith Kaye said her proposed reforms, for which she asked an additional twenty months as Chief Judge, was to address the snail’s pace of litigation in a
court decried as crowded, costly, and traumatizing to the public.
It may be worthy to note that those before the New York State Supreme Court who are asked to pay the exorbitant and excessive fees of attorneys may not themselves get cost of living salary increases to afford the often frivilous litigation fees brought by these judges’ peers at the Bar. Ain’t life tough?
Westchester Guardian Reader
Name Withheld
Dear Editor:
I am writing to question the Con-ict of Interest in the One Stop Employment Center of Mt. Vernon. It is
the only One Stop owned by the Department of Social Services. Do you think they are going to refer jobs to
people on welfare, the very people they make so much money off ?
No they aren’t, they are the bloodsuckers of the poor. DSS has over 65,000 welfare recipients most of whom are not eligible for employment because of the various service programs and Workfare they must attend. The One Stop Employment Center has Welfare oriented programs, which have nothing to do with employment.
Department of Labor is a State run program, so how is it our local county government owns a One Stop Employment Center? People who want to work shouldn’t have to deal with the Department of Social Services
at all. The name of the Center is even a lie, you’d think there would be jobs lined up at a place called One Stop Employment, but in reality it’s just another place to lure people into the Welfare system.
Tracy King
Dear Editor:
Last week major New York City newspapers published articles covering the most recent actions of New York
State’s Chief Judge, Judith Kaye, entitled, amongst others, Kaye Calls Pay Impasse ‘Infuriating’, Raises Prospect Of Suit If Raises Not Approved; Kaye Prepared To Sue For Judicial Raises.
Then, there was an editorial in the New York Law Journal entitled, Bar Should Mobilize For Judicial Salary
Hikes, which now causes me to observe that the litigant/public opinion on these matters should be expressed to the same legislators as the Law Journal and other newspapers propose members of the Bar lift their pen and sound their voice to.
Sheldon Silver, Joseph Bruno and individual Assemblypersons may well be interested to learn that not every New York State citizen believes these jurists deserve a cost of living increase paid from taxpayers’ contributions.
Where are the performance reviews before these raises are considered earned? Where in the State Constitution
is it written State Supreme Court Jurists’ salaries are commensurate with the salary of Federal District Court
judges?
A few weeks ago, Judge Milonas suggested the mandatory retirement age of judges be extended. Last week, Judge Kaye proposed to ask State Comptroller Thomas DiNapoli and State Attorney General Andrew Cuomo whether the Judiciary may unilaterally move to increase judicial salaries should the Governor and Legislature not enact the pay hike. How will the acknowledged needed reforms of the Court occur when all emphasis has been on jurists, the length of their stay on the bench, and the compensation they receive while they’re sitting there?
Some twenty-month fix-it job, Judge Kaye!
A Concerned Litigant
Court Report:
County Police Detective Brings Federal Civil Rights Suit
Against Larry Schwartz and Thomas Belfiore
UNITED STATES DISTRICT COURT
SOUTHEN DISTRICT OF NEW YORK
-------------------------------------------------------x
DAVID E. BYRNES,
Plainti , 07 Civ. 0811 (CLB)
-against- FIRST AMENDED
COMPLAINT
THOMAS BELFIORE, individually,
LAWRENCE S. SCHWARTZ,
individually, and the COUNTY OF Jury Trial Demanded
WESTCHESTER,
Defendants.
-------------------------------------------------------x
Plainti DAVID E. BYRNES, by his attorneys Lovett & Gould, LLP, for his first
amended complaint respectfully states:
NATURE OF THE ACTION
1. This is an action for compensatory and punitive damages, proximately
resulting from Defendants’ conduct as engaged in jointly and under color of
the laws of the State of New York, for violations of Plaintiff’s right of intimate
association as guaranteed by the First and/or Fourteenth Amendments to the
United States Constitution, 42 U.S.C. §1983.
JURISDICTION
2. The Court’s jurisdiction is invoked pursuant to 28 U.S.C. §§1331, 1343.
THE PARTIES
3. Plaintiff DAVID E. BYRNES (hereinafter “D. Byrnes” and/or “Plaintiff ”) is
a citizen of the United States, a domiciliary of the State of New York, and a resident
of the Northern Counties. At all times relevant to this complaint he was employed
as a sworn member of the Defendant County’s Department of Public Safety
Services. Byrnes (presently a “Detective”) is the husband of Jacqueline Byrnes
(hereina er alternatively referred to as “J. Byrnes”), a Supervising Caseworker for
Child Protective Services employed by the Defendant County in its Department of
Social Services. D. Byrnes wife Jacqueline is also the plainti in Byrnes v. Mahon,
07 Civ. 0663 (CLB), a First Amendment and Selective Prosecution civil rights
action, which was - led in this Court on January 26, 2007.
4. Defendant THOMAS BELFIORE (hereinafter “Belfiore”), who is sued in
his individual and personal capacities only, at all times relevant to this complaint
was the duly appointed Commissioner of the Westchester County, New York,
Department of Public Safety Services. Belfiore, like his predecessor-in-title (Louis
D’Aliso) is micromanaged and controlled by Defendant Schwartz with respect to
the day-to-day administration of the Department of Public Safety Services.
5. Defendant LAWRENCE S. SCHWARTZ (hereinafter “Schwartz”), who
is sued in his individual and personal capacities only, at all times relevant to this
complaint was the duly appointed Deputy County Executive for the County of
Westchester. As such, and notwithstanding his status as the “Deputy” County
Executive, Schwartz de facto has arrogated to himself (with the knowing
acquiescence of the actual County Executive) the plenary authority and powers
of the elective office of County Executive and thus actually serves as the day-today
hands-on administrator of the various Departments of the County including
Public Safety Services and Social Services. With respect to Public Safety Services
Schwartz personally (commencing in 2005 and continuing to the present) has
sought to arrogate to himself, through Belfiore, complete control over the entire
pistol permit licensing/revocation system in the County of Westchester - - initially
by arranging, albeit unsuccessfully, for state legislation to exclude the current
judicial licensing officers’ (more specically Judge J. Emmet Murphy and Judge
Rori Bellantoni) pivotal role in that system. Subsequent to his failure to secure
the referenced legislation (and at a meeting with Westchester County District
Attorney Janet DiFiore, Westchester County Attorney Charlene Indelicato, Deputy
Westchester County Attorney Lori Alessio, Westchester County Clerk Tim Idoni,
Belfiore, Judge J. Emmet Murphy, and Judge Rori Bellantoni) Schwartz directly
threatened Judges Murphy and Bellantoni to the effect that if they do not acquiesce
in his planned take-over of pistol permit licensing/revocations, he intended to
use or abuse his public office and cause them injury with respect to their judicial
careers. See N.Y. Penal Law §195.00 (Official Misconduct); N.Y. Penal Law
§110.00/135.60(8, 9)(Attempted Coercion in the Third Degree).
6. Defendant COUNTY OF WESTCHESTER (hereinafter “County”) is a
municipal corporate subdivision of the State of New York duly existing by reason
of and pursuant to the laws of said State.
THE FACTS
7. For a substantial period of time prior to July of 2005 Plaintiff ’s wife nondisruptively
expressed, within and outside of the County workplace, her factbased
opinions as a concerned citizen/taxpayer that:
a. Systemic under-staffing by the County and/or the County Executive of
the Child Protective Unit (hereinafter “Unit”) in the County’s Department of Social
Services presented a clear and present danger to the health and safety of physically
and/or emotionally abused children within the Department’s jurisdiction,
b. Systemic under-budgeting of the Unit by the County and/or the
County Executive, resulting in a grossly insufficient staffing, left those children
continuously at serious risk of physical injury and/or death at the hands of
abusive parents and/or guardians, and inter alia,
c. Systemic deficiencies in the Department of Social Service’s training
capabilities and/or programs, resulting in substantially less-than-competent staff
in the Unit, continuously left those children at serious risk of physical injury
and/or death due to abusive parents and/or guardians.
8. Following the scalding deaths on or about July 29, 2005, of two infants
subject to the jurisdiction of the Unit, which deaths were the proximate result
of the under- budgeting, under-staffing and systemic deficiencies referenced in
the preceding paragraph “7”, Schwartz acting by and through County Executive
Andrew Spano publicly albeit falsely blamed J. Byrnes for those children’s deaths
and in that connection announced that she will be demoted.
9. Following that public condemnation of J. Byrnes, Schwartz directed the
County Commissioner of Social Services (Kevin Mahon) to commence against J.
Byrnes a civil service disciplinary proceeding with the object of punishing her for
her expressions of opinion referenced supra and chilling her in the prospective
exercise of her First Amendment rights regarding those matters. Mahon agreed
to do so and with the assistance of Schwartz counsel (including Deputy County
Attorney Lori Alessio) Mahon instituted the punitive proceeding.
10. During the course of J. Byrnes’ ensuing disciplinary hearing, and because
her previous expressions of opinion regarding the above-referenced matters of
public concern were widely reported in the media, Defendants determined to
take further retaliatory action against the Byrnes family - - this time targeting
Plaintiff for retribution.
11. In that connection and with respect to Schwartz’ efforts to take control
of pistol permit licensing/revocations in the County, during the Fall of 2006
Schwartz obtained from Belfiore a list of all full-carry pistol permit holders - -
review of which revealed to Schwartz that J. Byrnes had such a full-carry permit
as issued to her by Judge J. Emmet Murphy.
12. Under the circumstances Schwartz directed Belfiore to punitively revoke
J. Byrnes’ full-carry pistol permit - - an objective that Belfiore subsequently
learned was impossible to realize by reason of its outright illegality.
13. At or about the same time Plaintiff made application for a full-carry
pistol permit. When Schwartz learned of that application he instructed Belfiore
to prevent issuance of that permit - - another objective impossible to realize by
reason of its outright illegality.
14. Frustrated by his inability to have J. Byrnes’ permit revoked and/or to
block issuance to D. Byrnes of a full-carry pistol permit, Schwartz then entered
into a plan with Belfiore by reason of which Plaintiff was “investigated” with
respect to the issuance of J. Byrnes full-carry pistol permit. Despite the absence of
any evidence whatsoever regarding misconduct and/or incompetence by Plaintiff,
Belfiore with the concurrence and approval of Schwartz directed the Commanding
Officer of the Special Investigations Unit of the Department of Public Safety
Services (Lieutenant Thomas A. Gleason) to in-writing inform Plaintiff that:
a. Allegations of misconduct with respect to him had resulted in
findings that the supposed misconduct was “substantiated”,
b. Belfiore, without benefit of a due process disciplinary hearing, “has
approved these findings”, and,
c. Belfiore had pre-determined not only Plaintiff ’s guilt but also
determined that the punishment to be imposed (demotion) was going to result
in Plaintiff ’s: “ return to the civil service status of Police Officer”.
15. In connection with and as apart of Schwartz and Belfiore’s retaliatory
plan, Belfiore:
i) Summarily removed Plaintiff from the Pistol Permit Unit, where he
had been continuously assigned for approximately eight years, and,
ii) Re-assigned Plaintiff to the General Investigations Unit (hereinafter
“GIU”) of the Department of Public Safety Services.
16. As a result of that re-assignment:
a. In the GIU Plaintiff was and continues to be required to work everrotating
shifts, including shifts that include weekends, holidays, and nights,
b. Plaintiff was deprived of his Monday-to-Friday, day-time shift that he
had during his tenure in the Pistol Permit Unit, and,
c. Plaintiff ’s familial inter-relationship with J. Byrnes has been
deliberately impaired by reason of inter alia his rotating shifts, night-time duty
assignments, holiday and/or weekend work assignments which, among other
consequences, have prevented Plaintiff and his wife from being together on
special religious holidays such as Christmas and Easter.
17. Plaintiff ’s involuntary re-assignment to the GIU is regarded by
both Plaintiff ’s co-workers and Plaintiff to be punitive, a de facto demotion,
degrading, and a major set-back to Plaintiff ’s career path within the Department
of Public Safety Services since assignment to the Pistol Permit Unit is regarded
by members of Plaintiff ’s Department (given the steady day-time, week-day
shifts) as prestigious and enviable.
18. As a proximate result Defendants are currently pursuing, by means of
Senior Assistant County Attorney (Matthew Gallagher), disciplinary charges
with a pre-ordained objective of punitively terminating Plaintiff ’s employment
and financially crippling the Byrnes’ family.
19. By reason of Defendants’ conduct Plaintiff has been caused to suffer: a
substantial and devastating impairment of his marital relationship with his wife,
Jacqueline; emotional upset; anxiety; public humiliation; public embarrassment;
public shame; pecuniary losses; irreparable damage to his professional career in
law enforcement; irreparable damage to his reputation, both professional and
personal; and he has otherwise been rendered sick and sore.
AS AND FOR A CAUSE OF ACTION
20. Repeats and realleges as if fully set forth the allegations of fact contained
in paragraphs “1” to “18”, inclusive.
21. Under the premises Defendants’ retaliatory conduct violated Plaintiff ’s
right of intimate association as guaranteed by the First and/or Fourteenth
Amendments to the United States Constitution, 42 U.S.C. §1983.
WHEREFORE a judgment is respectfully demanded:
a. Awarding against the individually named Defendants such punitive
damages as the jury may impose,
b. Awarding against all Defendants such compensatory damages as the
jury may determine,
c. Awarding against all Defendants reasonable attorney’s fees and costs, and,
d. Granting such other and further relief as to the Court seems just and proper.
Dated: White Plains, N.Y.
April 12, 2007
LOVETT & GOULD, LLP
By:______________
Jonathan Lovett (4854)
Attorneys for Plaintiff
222 Bloomingdale Road
White Plains, N.Y. 10605
County Police Detective Brings Federal Civil Rights Suit
Against Larry Schwartz and Thomas Belfiore
UNITED STATES DISTRICT COURT
SOUTHEN DISTRICT OF NEW YORK
-------------------------------------------------------x
DAVID E. BYRNES,
Plainti , 07 Civ. 0811 (CLB)
-against- FIRST AMENDED
COMPLAINT
THOMAS BELFIORE, individually,
LAWRENCE S. SCHWARTZ,
individually, and the COUNTY OF Jury Trial Demanded
WESTCHESTER,
Defendants.
-------------------------------------------------------x
Plainti DAVID E. BYRNES, by his attorneys Lovett & Gould, LLP, for his first
amended complaint respectfully states:
NATURE OF THE ACTION
1. This is an action for compensatory and punitive damages, proximately
resulting from Defendants’ conduct as engaged in jointly and under color of
the laws of the State of New York, for violations of Plaintiff’s right of intimate
association as guaranteed by the First and/or Fourteenth Amendments to the
United States Constitution, 42 U.S.C. §1983.
JURISDICTION
2. The Court’s jurisdiction is invoked pursuant to 28 U.S.C. §§1331, 1343.
THE PARTIES
3. Plaintiff DAVID E. BYRNES (hereinafter “D. Byrnes” and/or “Plaintiff ”) is
a citizen of the United States, a domiciliary of the State of New York, and a resident
of the Northern Counties. At all times relevant to this complaint he was employed
as a sworn member of the Defendant County’s Department of Public Safety
Services. Byrnes (presently a “Detective”) is the husband of Jacqueline Byrnes
(hereina er alternatively referred to as “J. Byrnes”), a Supervising Caseworker for
Child Protective Services employed by the Defendant County in its Department of
Social Services. D. Byrnes wife Jacqueline is also the plainti in Byrnes v. Mahon,
07 Civ. 0663 (CLB), a First Amendment and Selective Prosecution civil rights
action, which was - led in this Court on January 26, 2007.
4. Defendant THOMAS BELFIORE (hereinafter “Belfiore”), who is sued in
his individual and personal capacities only, at all times relevant to this complaint
was the duly appointed Commissioner of the Westchester County, New York,
Department of Public Safety Services. Belfiore, like his predecessor-in-title (Louis
D’Aliso) is micromanaged and controlled by Defendant Schwartz with respect to
the day-to-day administration of the Department of Public Safety Services.
5. Defendant LAWRENCE S. SCHWARTZ (hereinafter “Schwartz”), who
is sued in his individual and personal capacities only, at all times relevant to this
complaint was the duly appointed Deputy County Executive for the County of
Westchester. As such, and notwithstanding his status as the “Deputy” County
Executive, Schwartz de facto has arrogated to himself (with the knowing
acquiescence of the actual County Executive) the plenary authority and powers
of the elective office of County Executive and thus actually serves as the day-today
hands-on administrator of the various Departments of the County including
Public Safety Services and Social Services. With respect to Public Safety Services
Schwartz personally (commencing in 2005 and continuing to the present) has
sought to arrogate to himself, through Belfiore, complete control over the entire
pistol permit licensing/revocation system in the County of Westchester - - initially
by arranging, albeit unsuccessfully, for state legislation to exclude the current
judicial licensing officers’ (more specically Judge J. Emmet Murphy and Judge
Rori Bellantoni) pivotal role in that system. Subsequent to his failure to secure
the referenced legislation (and at a meeting with Westchester County District
Attorney Janet DiFiore, Westchester County Attorney Charlene Indelicato, Deputy
Westchester County Attorney Lori Alessio, Westchester County Clerk Tim Idoni,
Belfiore, Judge J. Emmet Murphy, and Judge Rori Bellantoni) Schwartz directly
threatened Judges Murphy and Bellantoni to the effect that if they do not acquiesce
in his planned take-over of pistol permit licensing/revocations, he intended to
use or abuse his public office and cause them injury with respect to their judicial
careers. See N.Y. Penal Law §195.00 (Official Misconduct); N.Y. Penal Law
§110.00/135.60(8, 9)(Attempted Coercion in the Third Degree).
6. Defendant COUNTY OF WESTCHESTER (hereinafter “County”) is a
municipal corporate subdivision of the State of New York duly existing by reason
of and pursuant to the laws of said State.
THE FACTS
7. For a substantial period of time prior to July of 2005 Plaintiff ’s wife nondisruptively
expressed, within and outside of the County workplace, her factbased
opinions as a concerned citizen/taxpayer that:
a. Systemic under-staffing by the County and/or the County Executive of
the Child Protective Unit (hereinafter “Unit”) in the County’s Department of Social
Services presented a clear and present danger to the health and safety of physically
and/or emotionally abused children within the Department’s jurisdiction,
b. Systemic under-budgeting of the Unit by the County and/or the
County Executive, resulting in a grossly insufficient staffing, left those children
continuously at serious risk of physical injury and/or death at the hands of
abusive parents and/or guardians, and inter alia,
c. Systemic deficiencies in the Department of Social Service’s training
capabilities and/or programs, resulting in substantially less-than-competent staff
in the Unit, continuously left those children at serious risk of physical injury
and/or death due to abusive parents and/or guardians.
8. Following the scalding deaths on or about July 29, 2005, of two infants
subject to the jurisdiction of the Unit, which deaths were the proximate result
of the under- budgeting, under-staffing and systemic deficiencies referenced in
the preceding paragraph “7”, Schwartz acting by and through County Executive
Andrew Spano publicly albeit falsely blamed J. Byrnes for those children’s deaths
and in that connection announced that she will be demoted.
9. Following that public condemnation of J. Byrnes, Schwartz directed the
County Commissioner of Social Services (Kevin Mahon) to commence against J.
Byrnes a civil service disciplinary proceeding with the object of punishing her for
her expressions of opinion referenced supra and chilling her in the prospective
exercise of her First Amendment rights regarding those matters. Mahon agreed
to do so and with the assistance of Schwartz counsel (including Deputy County
Attorney Lori Alessio) Mahon instituted the punitive proceeding.
10. During the course of J. Byrnes’ ensuing disciplinary hearing, and because
her previous expressions of opinion regarding the above-referenced matters of
public concern were widely reported in the media, Defendants determined to
take further retaliatory action against the Byrnes family - - this time targeting
Plaintiff for retribution.
11. In that connection and with respect to Schwartz’ efforts to take control
of pistol permit licensing/revocations in the County, during the Fall of 2006
Schwartz obtained from Belfiore a list of all full-carry pistol permit holders - -
review of which revealed to Schwartz that J. Byrnes had such a full-carry permit
as issued to her by Judge J. Emmet Murphy.
12. Under the circumstances Schwartz directed Belfiore to punitively revoke
J. Byrnes’ full-carry pistol permit - - an objective that Belfiore subsequently
learned was impossible to realize by reason of its outright illegality.
13. At or about the same time Plaintiff made application for a full-carry
pistol permit. When Schwartz learned of that application he instructed Belfiore
to prevent issuance of that permit - - another objective impossible to realize by
reason of its outright illegality.
14. Frustrated by his inability to have J. Byrnes’ permit revoked and/or to
block issuance to D. Byrnes of a full-carry pistol permit, Schwartz then entered
into a plan with Belfiore by reason of which Plaintiff was “investigated” with
respect to the issuance of J. Byrnes full-carry pistol permit. Despite the absence of
any evidence whatsoever regarding misconduct and/or incompetence by Plaintiff,
Belfiore with the concurrence and approval of Schwartz directed the Commanding
Officer of the Special Investigations Unit of the Department of Public Safety
Services (Lieutenant Thomas A. Gleason) to in-writing inform Plaintiff that:
a. Allegations of misconduct with respect to him had resulted in
findings that the supposed misconduct was “substantiated”,
b. Belfiore, without benefit of a due process disciplinary hearing, “has
approved these findings”, and,
c. Belfiore had pre-determined not only Plaintiff ’s guilt but also
determined that the punishment to be imposed (demotion) was going to result
in Plaintiff ’s: “ return to the civil service status of Police Officer”.
15. In connection with and as apart of Schwartz and Belfiore’s retaliatory
plan, Belfiore:
i) Summarily removed Plaintiff from the Pistol Permit Unit, where he
had been continuously assigned for approximately eight years, and,
ii) Re-assigned Plaintiff to the General Investigations Unit (hereinafter
“GIU”) of the Department of Public Safety Services.
16. As a result of that re-assignment:
a. In the GIU Plaintiff was and continues to be required to work everrotating
shifts, including shifts that include weekends, holidays, and nights,
b. Plaintiff was deprived of his Monday-to-Friday, day-time shift that he
had during his tenure in the Pistol Permit Unit, and,
c. Plaintiff ’s familial inter-relationship with J. Byrnes has been
deliberately impaired by reason of inter alia his rotating shifts, night-time duty
assignments, holiday and/or weekend work assignments which, among other
consequences, have prevented Plaintiff and his wife from being together on
special religious holidays such as Christmas and Easter.
17. Plaintiff ’s involuntary re-assignment to the GIU is regarded by
both Plaintiff ’s co-workers and Plaintiff to be punitive, a de facto demotion,
degrading, and a major set-back to Plaintiff ’s career path within the Department
of Public Safety Services since assignment to the Pistol Permit Unit is regarded
by members of Plaintiff ’s Department (given the steady day-time, week-day
shifts) as prestigious and enviable.
18. As a proximate result Defendants are currently pursuing, by means of
Senior Assistant County Attorney (Matthew Gallagher), disciplinary charges
with a pre-ordained objective of punitively terminating Plaintiff ’s employment
and financially crippling the Byrnes’ family.
19. By reason of Defendants’ conduct Plaintiff has been caused to suffer: a
substantial and devastating impairment of his marital relationship with his wife,
Jacqueline; emotional upset; anxiety; public humiliation; public embarrassment;
public shame; pecuniary losses; irreparable damage to his professional career in
law enforcement; irreparable damage to his reputation, both professional and
personal; and he has otherwise been rendered sick and sore.
AS AND FOR A CAUSE OF ACTION
20. Repeats and realleges as if fully set forth the allegations of fact contained
in paragraphs “1” to “18”, inclusive.
21. Under the premises Defendants’ retaliatory conduct violated Plaintiff ’s
right of intimate association as guaranteed by the First and/or Fourteenth
Amendments to the United States Constitution, 42 U.S.C. §1983.
WHEREFORE a judgment is respectfully demanded:
a. Awarding against the individually named Defendants such punitive
damages as the jury may impose,
b. Awarding against all Defendants such compensatory damages as the
jury may determine,
c. Awarding against all Defendants reasonable attorney’s fees and costs, and,
d. Granting such other and further relief as to the Court seems just and proper.
Dated: White Plains, N.Y.
April 12, 2007
LOVETT & GOULD, LLP
By:______________
Jonathan Lovett (4854)
Attorneys for Plaintiff
222 Bloomingdale Road
White Plains, N.Y. 10605
The Advocate
Richard Blassberg
United States Attorney Garcia Must Not
Let Down The People Of Westchester
United States Attorney, for the Southern District of New York, Michael J. Garcia could not have known the colossal corruption that would be exposed when he published the toll-free number, 1-877-END-GRAFT, in The Journal News nearly a year ago. Even those close to Westchester politics, those thoroughly familiar with one or two branches of County Government, and the corrupt goings-on over the years, will likely be surprised by the enormity and the inclusiveness of the network of corruption and crime that will be revealed if Garcia and his “untouchables” take the time and the care to root it all out.
As Mr. Garcia has begun to understand, only too well, Westchester has been a “Beehive of Corruption” and, for twelve years, Jeanine Pirro was the “Queen Bee”. If the United States Attorney, and his investigative arm, the F.B.I., are to be faithful to their mandated mission they must eliminate all vestiges of the hive, the worker bees, who continue in their activities, even in the Queen’s absence.
However, one problem Mr. Garcia and his investigators must overcome involves their own prior, unwitting, cooperation with Mrs. Pirro as they, too, in a number of instances, got sucked into her unlawful and unconstitutional activities. We are not talking about mere guilt by association, as was the case when James Comey, former Yonkers resident, and first appointee to the United States Attorney’s Office for the Southern District of New York, by George W. Bush, back in 2001, assured everyone in the press and on television that he and his staff could trust Pirro and work with her. Comey had no hesitation making that statement despite the fact that his office, under MaryJo White, had successfully prosecuted and convicted Pirro’s husband Al for 38 counts of Tax Fraud, several counts of which, it was revealed at trial, Jeanine herself had committed, hands-on.
We are speaking about the critical involvement of federal authorities, the Justice Department and the F.B.I., in some of DA Pirro’s most egregious and unlawful prosecutions as in the DiSimone case, described by United States Court of Appeals Judge Calabresi as involving, “The worst Brady violations I have seen in twelve years on this bench.” In that case, Pirro got the F.B.I. to put two individuals into witness protection, Darren Mazzarella, and his bother Nick, in exchange for Darren’s knowingly false testimony against DiSimone, despite the fact that the Mazzarellas were in federal custody for two separate, unrelated murders. Unfortunately, the Di-
Simone unconstitutional prosecution was but one of several cases in which Mrs. Pirro succeeded in sucking federal authorities into her self-serving, unlawful prosecution machine.
Nevertheless, prior unwitting involvement with Mrs. Pirro’s unlawful prosecutorial misconduct should not prevent federal authorities from making a thorough exposure, and rooting out, of corruption at every level in Westchester. Anything less would be a betrayal of the public trust, and Attorney Garcia does not come off as the kind of public servant who cannot be trusted.
Given their history, and relationship to Pirro, certain targets would seem obvious, former State Senator Nick Spano, amongst them. Irrespective of the relationship he enjoyed for many years with her, his close association
with, and financial support of, individuals such as Zehy Jereis, Giulio Cavallo, Anthony Mangone, and other election fraudsters, flashes like a bright neon sign on Nick’s back, “Come check me out!”
His recent denials regarding Jereis, and the Yonkers Chamber of Commerce State Grant, are really pathetic, and must give other politicos who have cozied up to him, or worked hard for him, against candidates of their own party, sleepless nights and bad bowel movements.
Nicky and Jeanine had one of those co-dependent, dysfunctional relationships for a dozen years. She would cover up his election fraud, indeed, assist in it, as she did in 2004, and he would get judicial and other appointments approved by the State Senate for her. Naturally, much of what they did for each other required the cooperation of other power-players, Larry Schwartz, Giulio Cavallo, Reggie LaFayette, Tom Belfiore, and others, to pull off.
In some respects Westchester politics is less like other areas of the country, where partisan lines and party loyalty are more clearly defined, and play a more predictable role in election outcomes. By now Attorney Garcia is well aware that Westchester is run by a cabal, the center of which for a dozen years was DA Pirro, the one member who had the power to prosecute all the other members. Now, in Pirro’s absence, the center position has been occupied by Larry Schwartz, controller of the money, the jobs, the contracts, and the secrets. And, if asked, he will declare his ability to apprehend and prosecute his opponents through surrogates in law enforcement and the courts who are beholden to him.
Amazingly, despite the obvious presence of federal investigators, like so many sharks in local waters, Larry & Company somehow continue as before. Perhaps they feel impervious to scrutiny. Or, maybe they just can’t
help themselves. Of course, it’s always possible they’re making the mistake of not taking Michael J. Garcia too seriously.
Richard Blassberg
United States Attorney Garcia Must Not
Let Down The People Of Westchester
United States Attorney, for the Southern District of New York, Michael J. Garcia could not have known the colossal corruption that would be exposed when he published the toll-free number, 1-877-END-GRAFT, in The Journal News nearly a year ago. Even those close to Westchester politics, those thoroughly familiar with one or two branches of County Government, and the corrupt goings-on over the years, will likely be surprised by the enormity and the inclusiveness of the network of corruption and crime that will be revealed if Garcia and his “untouchables” take the time and the care to root it all out.
As Mr. Garcia has begun to understand, only too well, Westchester has been a “Beehive of Corruption” and, for twelve years, Jeanine Pirro was the “Queen Bee”. If the United States Attorney, and his investigative arm, the F.B.I., are to be faithful to their mandated mission they must eliminate all vestiges of the hive, the worker bees, who continue in their activities, even in the Queen’s absence.
However, one problem Mr. Garcia and his investigators must overcome involves their own prior, unwitting, cooperation with Mrs. Pirro as they, too, in a number of instances, got sucked into her unlawful and unconstitutional activities. We are not talking about mere guilt by association, as was the case when James Comey, former Yonkers resident, and first appointee to the United States Attorney’s Office for the Southern District of New York, by George W. Bush, back in 2001, assured everyone in the press and on television that he and his staff could trust Pirro and work with her. Comey had no hesitation making that statement despite the fact that his office, under MaryJo White, had successfully prosecuted and convicted Pirro’s husband Al for 38 counts of Tax Fraud, several counts of which, it was revealed at trial, Jeanine herself had committed, hands-on.
We are speaking about the critical involvement of federal authorities, the Justice Department and the F.B.I., in some of DA Pirro’s most egregious and unlawful prosecutions as in the DiSimone case, described by United States Court of Appeals Judge Calabresi as involving, “The worst Brady violations I have seen in twelve years on this bench.” In that case, Pirro got the F.B.I. to put two individuals into witness protection, Darren Mazzarella, and his bother Nick, in exchange for Darren’s knowingly false testimony against DiSimone, despite the fact that the Mazzarellas were in federal custody for two separate, unrelated murders. Unfortunately, the Di-
Simone unconstitutional prosecution was but one of several cases in which Mrs. Pirro succeeded in sucking federal authorities into her self-serving, unlawful prosecution machine.
Nevertheless, prior unwitting involvement with Mrs. Pirro’s unlawful prosecutorial misconduct should not prevent federal authorities from making a thorough exposure, and rooting out, of corruption at every level in Westchester. Anything less would be a betrayal of the public trust, and Attorney Garcia does not come off as the kind of public servant who cannot be trusted.
Given their history, and relationship to Pirro, certain targets would seem obvious, former State Senator Nick Spano, amongst them. Irrespective of the relationship he enjoyed for many years with her, his close association
with, and financial support of, individuals such as Zehy Jereis, Giulio Cavallo, Anthony Mangone, and other election fraudsters, flashes like a bright neon sign on Nick’s back, “Come check me out!”
His recent denials regarding Jereis, and the Yonkers Chamber of Commerce State Grant, are really pathetic, and must give other politicos who have cozied up to him, or worked hard for him, against candidates of their own party, sleepless nights and bad bowel movements.
Nicky and Jeanine had one of those co-dependent, dysfunctional relationships for a dozen years. She would cover up his election fraud, indeed, assist in it, as she did in 2004, and he would get judicial and other appointments approved by the State Senate for her. Naturally, much of what they did for each other required the cooperation of other power-players, Larry Schwartz, Giulio Cavallo, Reggie LaFayette, Tom Belfiore, and others, to pull off.
In some respects Westchester politics is less like other areas of the country, where partisan lines and party loyalty are more clearly defined, and play a more predictable role in election outcomes. By now Attorney Garcia is well aware that Westchester is run by a cabal, the center of which for a dozen years was DA Pirro, the one member who had the power to prosecute all the other members. Now, in Pirro’s absence, the center position has been occupied by Larry Schwartz, controller of the money, the jobs, the contracts, and the secrets. And, if asked, he will declare his ability to apprehend and prosecute his opponents through surrogates in law enforcement and the courts who are beholden to him.
Amazingly, despite the obvious presence of federal investigators, like so many sharks in local waters, Larry & Company somehow continue as before. Perhaps they feel impervious to scrutiny. Or, maybe they just can’t
help themselves. Of course, it’s always possible they’re making the mistake of not taking Michael J. Garcia too seriously.
The Parole Game By Jeffrey Deskovic
Background
When a judge pronounces a sentence upon a defendant, he or she does so after there has been a judgment of guilt. Sometimes the judgment of guilt has been obtained because the defendant has entered a plea of guilty; other times because, after a trial, a jury has pronounced a defendant guilty. In either case, the judge has already become familiar with the facts of the case. There is a also a report that has been prepared by the Probation
Department, called a Pre-Sentence Investigation, which provides further relevant information about the defendant.
Sentences have two parts to them, a minimum and a maximum. The minimum is the least amount of time the judge has decided will serve the ends of justice, the maximum is the most. For example, if a person has been sentenced to fifteen to life, that means that he must serve the fifteen years before appearing in front of the Parole Board to be considered for release. The board may let the person go, or they may decline to do so. Declining is called a hold. The hold may be for any amount of time up to two years, at the conclusion of which the prisoner will make another appearance at the board for re-consideration.
There are criteria that the Parole Board is supposed to use to evaluate cases. The Board is supposed to consider whether or not a person has tried to better himself, turned his life around, as demonstrated by his educational record and his disciplinary record. From these two pieces of evidence the Board is supposed to be considered
whether, if released, the applicant will live and remain at liberty without breaking the law. Other ancillary factors that are looked at include family ties, because having good family ties has been linked to rehabilitation, jobs lined up, and any letters of support.
Additionally, the seriousness of the crime, meaning that the more serious the offense, the more demanding the standard is for determining if a person has indeed turned their life around. Again, past conduct is the only standard by which to predict future conduct, hence again the educational and disciplinary records are relevant.
When George Pataki became governor, he swore an oath to uphold the laws of the state. That included the statute governing parole. There were numerous news articles, in which he would publicly say that we must
end parole for those convicted of violent crimes, indicating that he wanted the state legislature to change the laws surrounding parole. The legislature never did that, realizing the wisdom in allowing people the opportunity to turn their lives around and then be able contribute to society. The lawmakers are representatives of the people, thus this refusal constituted the will of society.
Pataki, by law, was supposed to continue to make sure that the laws were carried out. Unable to get his way, he then told the Parole Board to start automatically denying parole applications of anyone convicted of a violent
crime, including those of first-time offenders, and those who had demonstrated a commitment to self improvement and were therefore in a good position to contribute to society. In fact, there were a variety of statements made to reporters, anonymously of course, from people in the Pataki administration, that the Board had been told not to parole those who had been convicted of violent crimes. Similarly, there were public statements by Parole Board members that the Board “had gotten the message.” At one point, Brion Travis,
was removed as a parole commissioner and transferred to a job at the Insurance Department, as a result of paroling a woman, Kathy Boudin, who had been convicted of a felony murder but who had served her time, stayed out of trouble, and bettered herself, and of whom the sentencing judge has stated, in assessing the facts of the case that he saw no reason why Boudin should not be released after her minimum if she stayed out of trouble.
This sent a clear message to the Board and constituted blatant interference and contravention of the law. To highlight the acknowledged illegality, the Pataki administration officially denied that the move was related to the decision to parole Boudin. Yet, off the record, an official “with knowledge of the situation” said that the move was a direct result of that very decision.
For a long time, courts had resisted arguments that a blanket, en masse, one size fits all, illegal verbal instructions by the governor to the board was the reason for denials and that the hearings themselves were a farce, akin to a show trial, in which the outcome had been predetermined before the interview had ever begun. Then, in the early 2000’s courts began recognizing this and accordingly started reversing decisions.
But even then, not every case which had a legitimate claim was reversed. Many were not. Then there were those who by the time the case made it through the internal review levels and given the slow turning of the wheels of justice, they had finished the extra time imposed as a result of the hold and were making new appearances in front of the Parole Board.
Thus, court cases was dismissed as ‘moot’, even though the applicants were in a position to have the same thing happen to them. Then, even as to those that the slow wheels of justice had not derailed, which were reversed, many of those cases were overturned by higher courts on appeal. The higher echelons of the judiciary were, and are still, unwilling to acknowledge what had become undeniable to some of the lower courts. That left the prisoners in a “no man’s land: In prison for a crime, having finished their sentence minimum and done all that they could do to demonstrate that they had changed, yet unlawfully denied relief by the Board, and having no judiciary
that was willing to enforce the laws and their rights, even as the law had originally been imposed on them.
There are other Parole Board policies that are unfair. For example, in recent years, even though it is not in the law governing parole, the Parole Board has come to require verbal expressions of taking responsibility and expressing remorse. This places innocent people who have been wrongfully convicted, in the tenuous position of having to choose between having a chance at freedom via parole by admitting to something that they had not done in order to end the nightmare of wrongful incarceration, and remaining in prison. This is no mere theoretical
possibility, it has occurred here in New York. For example, Colin Warner had been wrongfully convicted and sentenced to fifteen to life. He was eligible for parole three times, and was turned down all three times
in part because he maintained his innocence and thus could not take responsibility for the crime. The terrible price that he had to pay was the six extra years he served in prison beyond his sentence minimum, before he was exonerated. From where I stand, that is adding insult to injury, and is morally indefensible.
A similar injustice is caused by certain programs in prison, such as the Sex Offender Program, which require guilt admission, verbally and in writing, with details, both to the instructor and the other prisoners in the program. Failure to comply was grounds for expulsion from the program, and would constitute, as the Department of Corrections saw it, refusing to participate in the program. The Parole Board has denied meritorious applicants
parole in the past who declined to take the program on the grounds of innocence.
Protestations of innocence at Parole Board hearings, by way of explanation of the refusal to take the program, has not been persuasive. Considering how easy it is to be wrongfully convicted with the criminal justice system in
the current state that it is in, wouldn’t it be fair to say that at least some of the people so denied were, in fact, actually innocent, but were unable to establish their innocence, due to the lack of quality legal help, and/or the lack of DNA in a case to test?
On a personal note, I was turned down for parole after completing my sentence minimum of fifteen years, and thus wound up serving one extra year in prison before being exonerated. Although not explicitly stated in their written decision, my refusal to take the sex offender program despite my explanations/protestations of innocence,
and my not taking responsibility by expressing remorse was a factor?
What are the effects of this, beyond keeping innocent people incarcerated? Deserving individuals are not given a second chance at life, and we as a society are deprived of the excellence that they could add to our society
when released. Let me give some examples that have been cited in the past.
• John Cappiello, at age 18, was convicted, along with co-defendants, of a robbery, burglary, and murder. The trial court judge determined that Cappiello did not consent, solicit or aid in the commission of the murders;
that he was not armed and that had had no reasonable ground to believe that his codefendants were carrying weapons. Therefore he was sentenced to the minimum of 15 to life. In prison, he obtained a B.S. degree,
graduating magna cum laude. He was also elected as class president. He was placed on a work release program as a youth outreach worker. In three months he was promoted as the director of the program, which also happened to service the largest number of youth in the New York City Program. He had numerous letters of support. A senator wrote of him that he was a hard worker. He got married, and 5 days a week he was living with his wife. But the other two nights he still had to spend in a correctional facility, because since applying for parole, he had been denied seven different times, each time being given twenty four-month holds. The Parole Board actually wrote that his release “would pose a threat to public safety.”
• Chen had been convicted of manslaughter and two counts of robbery. While incarcerated he obtained his GED, obtained a B.A. in business management, was on the Dean’s List, and in his final year had a grade point average of 3.75, and was admitted to a national honors society. He got a Department of Labor certificate in computer programming. He was a trainer in Aggression Replacement Class, and was categorized by the
instructor as a “great asset to the program.” He was a teacher’s aid, industrial worker, carpentry apprentice, and five other trades which, for the sake of brevity, I won’t mention. He also had not a single misbehavior report. Yet
he was denied. There are numerous others in similar situations. I was denied despite having been praised for my educational and disciplinary records.
Then there are the elderly. Is William McFadden, at age 92, a threat? Or Morton Sunshine at 86? Or Saul Sultan, who at 71 came to prison with a 15 to life sentence?
Many have various heart ailments, colon, liver, prostate, or rectal cancer. Many need walking sticks and walk very slowly down the prison halls, sometimes carrying colostomy bags. The senselessness is so stark. It is even sadder when one considers the reality that medical care in prison is substandard and that therefore the risk of medical complications and death is so great.
What is the motivation for doing this? It is not, as many might initially believe, out of a desire to protect the public, for in the case of those that I have mentioned above and others not mentioned but similarly situated, there is
nothing to protect in the case of those who have been rendered harmless by age, or from those whose rehabilitation should be obvious to anyone who is objective. Rather, it is financial.
I would like to borrow some from Michael Flax, who wrote of this subject in an issue of the magazine Justicia some years ago: This unauthorized verbal amendment is motivated by monies received through a federally funded
grant program, known as “Truth in Sentencing Program” under 43 U.S.C.A., Section 13702 (a) (2) (b). This section states in part that if “since 1993…the state has increased the average prisoner’s time which will be served in prison by convicted violent offenders sentenced to prison,” and/or under section (c): “the state has increased the percentage which will be served in prison by violent offenders sentenced to prison, the federal government will authorize to the eligible states, 15% of $997,500,000 of grant money under the truth in sentencing incentive program.” Flax goes on to cite statistics “During the 1997 fiscal year, New York State received 15% for $1,330,000,000 grant funds and, through the following years, the amount has increased to $2,527,100,000 for
the 1998 fiscal year with New York receiving 25%, 25% of $2,660,000,000 for the 1999 fiscal year, and 25% of $2,753,100,000 for the 2000 fiscal year.”
There are larger costs to society brough about by the way that the Parole Board has been doing business ever since 1995. Every time a meritorious applicant is turned down, we, as a society, pay for it. Firstly, we are denied the excellence and contributions that those who truly have turned their life around can add to our society.
Secondly, we pay for it by our tax money going to incarcerate people who don’t need to be incarcerated.
Rather than the former offenders paying taxes and being productive, they become a tax burden, to the tune of forty thousand dollars a year each. Thirdly, it hurts families who have done nothing wrong. Fathers who
are incarcerated cannot provide for their family, thus they suffer financially. Children suffer because Mommy and Daddy are not present to help raise them and provide love and an everyday presence that can be felt on a daily basis. It provides a disincentive for prisoners to better themselves. Why should they bother to better themselves and educate themselves, when, in the case of those who have life as their maximum sentence, they are never going to be released anyway and, in the case of those who have not, they will not be released upon the completion of their minimum? It causes depression and makes people cease trying to be all that they can be.
It is true that some may strive and reach for their best potential anyway, despite the circumstance and conditions. But why should the system be set up so that the system itself must be overcome? Shouldn’t the system be a help, and not a hindrance?
Judges have already determined what the minimum amount of punishment must be imposed in order to further the ends of justice, thus the nature of the crime has already been factored in. Having the Parole Board deny applicants based solely upon that same crime amounts to a virtual double jeopardy, a resentencing by those who
are not even as familiar with the facts as the Judge who imposed the sentence. What about those who have pled guilty, as part of an agreement in which they take a predetermined amount of prison time in order to save the county the expense that a trial would involve, thinking they would serve a certain amount of time, and it turns out
that they wind up serving more than that, in some cases just as much as they would have gotten had they went to trial and been found guilty? That is a type of fraud.
The other injustices that I have mentioned, wherein innocent people are punished even more because they are innocent and therefore prevented from taking responsibility and expressing remorse, is adding insult to injury and is unconscionable.
A famous quote from Dostoevsky is, paraphrased, ‘the test of a civilized society is the state of its prisons’. Not far behind it is the mechanism by which it is determined who will be released and who will not. As United State Supreme Court Judge Butler said, in his famous dissent in Olmstead vs. U.S. “If the government becomes the law
breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy.” In a similar vein, what message are we sending to those who are imprisoned, the people near and dear to them, and all those who learn of it one way or another, by the way the parole system is being conducted, and by us as a
society by allowing it to go on in this way?
Having just recently come into office, we have yet to see what policy Governor Spitzer will take. Will he take care to ensure that the laws of our state are enforced, or will he be just like Pataki and continue on with illegal
practices because it is beneficial financially?
In closing, I ask readers to consider all of the above, in a very personalized way. What if your son, daughter, mother, father, spouse, or family member, whether by reason of guilt or having been wrongfully convicted,
were imprisoned, and dependent upon parole in order to regain their freedom. Is this the way that you would want the system to work? Would you consider it fair?
Background
When a judge pronounces a sentence upon a defendant, he or she does so after there has been a judgment of guilt. Sometimes the judgment of guilt has been obtained because the defendant has entered a plea of guilty; other times because, after a trial, a jury has pronounced a defendant guilty. In either case, the judge has already become familiar with the facts of the case. There is a also a report that has been prepared by the Probation
Department, called a Pre-Sentence Investigation, which provides further relevant information about the defendant.
Sentences have two parts to them, a minimum and a maximum. The minimum is the least amount of time the judge has decided will serve the ends of justice, the maximum is the most. For example, if a person has been sentenced to fifteen to life, that means that he must serve the fifteen years before appearing in front of the Parole Board to be considered for release. The board may let the person go, or they may decline to do so. Declining is called a hold. The hold may be for any amount of time up to two years, at the conclusion of which the prisoner will make another appearance at the board for re-consideration.
There are criteria that the Parole Board is supposed to use to evaluate cases. The Board is supposed to consider whether or not a person has tried to better himself, turned his life around, as demonstrated by his educational record and his disciplinary record. From these two pieces of evidence the Board is supposed to be considered
whether, if released, the applicant will live and remain at liberty without breaking the law. Other ancillary factors that are looked at include family ties, because having good family ties has been linked to rehabilitation, jobs lined up, and any letters of support.
Additionally, the seriousness of the crime, meaning that the more serious the offense, the more demanding the standard is for determining if a person has indeed turned their life around. Again, past conduct is the only standard by which to predict future conduct, hence again the educational and disciplinary records are relevant.
When George Pataki became governor, he swore an oath to uphold the laws of the state. That included the statute governing parole. There were numerous news articles, in which he would publicly say that we must
end parole for those convicted of violent crimes, indicating that he wanted the state legislature to change the laws surrounding parole. The legislature never did that, realizing the wisdom in allowing people the opportunity to turn their lives around and then be able contribute to society. The lawmakers are representatives of the people, thus this refusal constituted the will of society.
Pataki, by law, was supposed to continue to make sure that the laws were carried out. Unable to get his way, he then told the Parole Board to start automatically denying parole applications of anyone convicted of a violent
crime, including those of first-time offenders, and those who had demonstrated a commitment to self improvement and were therefore in a good position to contribute to society. In fact, there were a variety of statements made to reporters, anonymously of course, from people in the Pataki administration, that the Board had been told not to parole those who had been convicted of violent crimes. Similarly, there were public statements by Parole Board members that the Board “had gotten the message.” At one point, Brion Travis,
was removed as a parole commissioner and transferred to a job at the Insurance Department, as a result of paroling a woman, Kathy Boudin, who had been convicted of a felony murder but who had served her time, stayed out of trouble, and bettered herself, and of whom the sentencing judge has stated, in assessing the facts of the case that he saw no reason why Boudin should not be released after her minimum if she stayed out of trouble.
This sent a clear message to the Board and constituted blatant interference and contravention of the law. To highlight the acknowledged illegality, the Pataki administration officially denied that the move was related to the decision to parole Boudin. Yet, off the record, an official “with knowledge of the situation” said that the move was a direct result of that very decision.
For a long time, courts had resisted arguments that a blanket, en masse, one size fits all, illegal verbal instructions by the governor to the board was the reason for denials and that the hearings themselves were a farce, akin to a show trial, in which the outcome had been predetermined before the interview had ever begun. Then, in the early 2000’s courts began recognizing this and accordingly started reversing decisions.
But even then, not every case which had a legitimate claim was reversed. Many were not. Then there were those who by the time the case made it through the internal review levels and given the slow turning of the wheels of justice, they had finished the extra time imposed as a result of the hold and were making new appearances in front of the Parole Board.
Thus, court cases was dismissed as ‘moot’, even though the applicants were in a position to have the same thing happen to them. Then, even as to those that the slow wheels of justice had not derailed, which were reversed, many of those cases were overturned by higher courts on appeal. The higher echelons of the judiciary were, and are still, unwilling to acknowledge what had become undeniable to some of the lower courts. That left the prisoners in a “no man’s land: In prison for a crime, having finished their sentence minimum and done all that they could do to demonstrate that they had changed, yet unlawfully denied relief by the Board, and having no judiciary
that was willing to enforce the laws and their rights, even as the law had originally been imposed on them.
There are other Parole Board policies that are unfair. For example, in recent years, even though it is not in the law governing parole, the Parole Board has come to require verbal expressions of taking responsibility and expressing remorse. This places innocent people who have been wrongfully convicted, in the tenuous position of having to choose between having a chance at freedom via parole by admitting to something that they had not done in order to end the nightmare of wrongful incarceration, and remaining in prison. This is no mere theoretical
possibility, it has occurred here in New York. For example, Colin Warner had been wrongfully convicted and sentenced to fifteen to life. He was eligible for parole three times, and was turned down all three times
in part because he maintained his innocence and thus could not take responsibility for the crime. The terrible price that he had to pay was the six extra years he served in prison beyond his sentence minimum, before he was exonerated. From where I stand, that is adding insult to injury, and is morally indefensible.
A similar injustice is caused by certain programs in prison, such as the Sex Offender Program, which require guilt admission, verbally and in writing, with details, both to the instructor and the other prisoners in the program. Failure to comply was grounds for expulsion from the program, and would constitute, as the Department of Corrections saw it, refusing to participate in the program. The Parole Board has denied meritorious applicants
parole in the past who declined to take the program on the grounds of innocence.
Protestations of innocence at Parole Board hearings, by way of explanation of the refusal to take the program, has not been persuasive. Considering how easy it is to be wrongfully convicted with the criminal justice system in
the current state that it is in, wouldn’t it be fair to say that at least some of the people so denied were, in fact, actually innocent, but were unable to establish their innocence, due to the lack of quality legal help, and/or the lack of DNA in a case to test?
On a personal note, I was turned down for parole after completing my sentence minimum of fifteen years, and thus wound up serving one extra year in prison before being exonerated. Although not explicitly stated in their written decision, my refusal to take the sex offender program despite my explanations/protestations of innocence,
and my not taking responsibility by expressing remorse was a factor?
What are the effects of this, beyond keeping innocent people incarcerated? Deserving individuals are not given a second chance at life, and we as a society are deprived of the excellence that they could add to our society
when released. Let me give some examples that have been cited in the past.
• John Cappiello, at age 18, was convicted, along with co-defendants, of a robbery, burglary, and murder. The trial court judge determined that Cappiello did not consent, solicit or aid in the commission of the murders;
that he was not armed and that had had no reasonable ground to believe that his codefendants were carrying weapons. Therefore he was sentenced to the minimum of 15 to life. In prison, he obtained a B.S. degree,
graduating magna cum laude. He was also elected as class president. He was placed on a work release program as a youth outreach worker. In three months he was promoted as the director of the program, which also happened to service the largest number of youth in the New York City Program. He had numerous letters of support. A senator wrote of him that he was a hard worker. He got married, and 5 days a week he was living with his wife. But the other two nights he still had to spend in a correctional facility, because since applying for parole, he had been denied seven different times, each time being given twenty four-month holds. The Parole Board actually wrote that his release “would pose a threat to public safety.”
• Chen had been convicted of manslaughter and two counts of robbery. While incarcerated he obtained his GED, obtained a B.A. in business management, was on the Dean’s List, and in his final year had a grade point average of 3.75, and was admitted to a national honors society. He got a Department of Labor certificate in computer programming. He was a trainer in Aggression Replacement Class, and was categorized by the
instructor as a “great asset to the program.” He was a teacher’s aid, industrial worker, carpentry apprentice, and five other trades which, for the sake of brevity, I won’t mention. He also had not a single misbehavior report. Yet
he was denied. There are numerous others in similar situations. I was denied despite having been praised for my educational and disciplinary records.
Then there are the elderly. Is William McFadden, at age 92, a threat? Or Morton Sunshine at 86? Or Saul Sultan, who at 71 came to prison with a 15 to life sentence?
Many have various heart ailments, colon, liver, prostate, or rectal cancer. Many need walking sticks and walk very slowly down the prison halls, sometimes carrying colostomy bags. The senselessness is so stark. It is even sadder when one considers the reality that medical care in prison is substandard and that therefore the risk of medical complications and death is so great.
What is the motivation for doing this? It is not, as many might initially believe, out of a desire to protect the public, for in the case of those that I have mentioned above and others not mentioned but similarly situated, there is
nothing to protect in the case of those who have been rendered harmless by age, or from those whose rehabilitation should be obvious to anyone who is objective. Rather, it is financial.
I would like to borrow some from Michael Flax, who wrote of this subject in an issue of the magazine Justicia some years ago: This unauthorized verbal amendment is motivated by monies received through a federally funded
grant program, known as “Truth in Sentencing Program” under 43 U.S.C.A., Section 13702 (a) (2) (b). This section states in part that if “since 1993…the state has increased the average prisoner’s time which will be served in prison by convicted violent offenders sentenced to prison,” and/or under section (c): “the state has increased the percentage which will be served in prison by violent offenders sentenced to prison, the federal government will authorize to the eligible states, 15% of $997,500,000 of grant money under the truth in sentencing incentive program.” Flax goes on to cite statistics “During the 1997 fiscal year, New York State received 15% for $1,330,000,000 grant funds and, through the following years, the amount has increased to $2,527,100,000 for
the 1998 fiscal year with New York receiving 25%, 25% of $2,660,000,000 for the 1999 fiscal year, and 25% of $2,753,100,000 for the 2000 fiscal year.”
There are larger costs to society brough about by the way that the Parole Board has been doing business ever since 1995. Every time a meritorious applicant is turned down, we, as a society, pay for it. Firstly, we are denied the excellence and contributions that those who truly have turned their life around can add to our society.
Secondly, we pay for it by our tax money going to incarcerate people who don’t need to be incarcerated.
Rather than the former offenders paying taxes and being productive, they become a tax burden, to the tune of forty thousand dollars a year each. Thirdly, it hurts families who have done nothing wrong. Fathers who
are incarcerated cannot provide for their family, thus they suffer financially. Children suffer because Mommy and Daddy are not present to help raise them and provide love and an everyday presence that can be felt on a daily basis. It provides a disincentive for prisoners to better themselves. Why should they bother to better themselves and educate themselves, when, in the case of those who have life as their maximum sentence, they are never going to be released anyway and, in the case of those who have not, they will not be released upon the completion of their minimum? It causes depression and makes people cease trying to be all that they can be.
It is true that some may strive and reach for their best potential anyway, despite the circumstance and conditions. But why should the system be set up so that the system itself must be overcome? Shouldn’t the system be a help, and not a hindrance?
Judges have already determined what the minimum amount of punishment must be imposed in order to further the ends of justice, thus the nature of the crime has already been factored in. Having the Parole Board deny applicants based solely upon that same crime amounts to a virtual double jeopardy, a resentencing by those who
are not even as familiar with the facts as the Judge who imposed the sentence. What about those who have pled guilty, as part of an agreement in which they take a predetermined amount of prison time in order to save the county the expense that a trial would involve, thinking they would serve a certain amount of time, and it turns out
that they wind up serving more than that, in some cases just as much as they would have gotten had they went to trial and been found guilty? That is a type of fraud.
The other injustices that I have mentioned, wherein innocent people are punished even more because they are innocent and therefore prevented from taking responsibility and expressing remorse, is adding insult to injury and is unconscionable.
A famous quote from Dostoevsky is, paraphrased, ‘the test of a civilized society is the state of its prisons’. Not far behind it is the mechanism by which it is determined who will be released and who will not. As United State Supreme Court Judge Butler said, in his famous dissent in Olmstead vs. U.S. “If the government becomes the law
breaker, it breeds contempt for the law. It invites every man to become a law unto himself. It invites anarchy.” In a similar vein, what message are we sending to those who are imprisoned, the people near and dear to them, and all those who learn of it one way or another, by the way the parole system is being conducted, and by us as a
society by allowing it to go on in this way?
Having just recently come into office, we have yet to see what policy Governor Spitzer will take. Will he take care to ensure that the laws of our state are enforced, or will he be just like Pataki and continue on with illegal
practices because it is beneficial financially?
In closing, I ask readers to consider all of the above, in a very personalized way. What if your son, daughter, mother, father, spouse, or family member, whether by reason of guilt or having been wrongfully convicted,
were imprisoned, and dependent upon parole in order to regain their freedom. Is this the way that you would want the system to work? Would you consider it fair?
Thursday, April 19, 2007
The Advocate
By Richard Blassberg
Lies Beget Lies
Next Monday will mark the fifth anniversary of a tragic incident, a dark moment in the history of the Town of Harrison, and, in truth, the entire Westchester Community. And, while there was no reversing the unthinkable
events that cost a beautiful young man his life, just eight days before what would have been his eighteenth birthday, the lies and the betrayal set in motion by Jeanine Pirro in order to protect, and preserve, her position
cast the die that even five years later holds some two dozen young adults, including her daughter, in indefinite purgatory.
On April 23, 2002, when Harrison High School experienced an early afternoon power failure, and school officials decided to release the students more than two hours early, several of them, juniors and seniors, would end up at the Porzio household, just around the corner from the home of District Attorney Jeanine Pirro, and a couple of houses from the former Rukaj home. Mr. and Mrs.Porzio were away, entrusting their daughter Beth, a junior at Harrison High, and their son John, Jr., a senior at Rye Country Day School, to look after their home.
Given the availability of the house, Beth invited more than twenty of her schoolmates, including Rob Viscome
and Patrick Rukaj, for what would become an afternoon drinking and substance abuse party. Lots of beer and other intoxicants were flowing, and it wasn’t long before words were exchanged between Rob and Patrick.
Some accounts have suggested that Rob may have teased Rukaj about his father, who, having won $18 million
in the State Lottery, was away in prison for having killed two members of his extended family in a “blood feud” involving the wife of his cousin.
Whatever the provocative exchange that occurred, Viscome and Rukaj stepped out of the playroom onto the stone patio where Rukaj threw a sucker punch to Rob’s face as Rob bent over to pick up Rukaj’s chain, causing him to fall over backward, striking his head. He would never regain consciousness.
A call to John Porzio, Jr. would bring him home “on the double.” But he was not the only arrival from Rye Country Day School. Christine Pirro, the DA’s daughter, better known to her friends as Kiki, would show up as well. Upon arrival John would immediately tell everyone, “This didn’t happen here.”
He would not permit anyone to phone out for emergency medical assistance. Instead, two dozen young men and women would leave their friend lying in a coma, fluid coming from his nose and mouth, as they cleaned up
beer cans, bottles of alcoholic beverages, and other substance paraphernalia, for almost half an hour, before deciding to lift him, reportedly dropping him twice on his head, as they carried his lifeless body to Ashley Fanelli’s BMW.
Putting him in the front passenger seat, they drove to United Hospital, little more than a mile away, in Port Chester. The story Harrison Police would get in one form, or another, from the youngsters, was what they initially
told the emergency personnel at United, that Rob Viscome had fallen from the monkey bars at a local park.
No matter what the story, it would not matter because as soon as Jeanine Pirro became aware of the incident,
truth “went south;” Kiki was literally pulled out of the situation and disappeared from school, from Westchester, from New York, for five weeks. Statements, taken from her friends, were shredded by Harrison Police. There
was a clear understanding that none of the kids involved would be prosecuted, and none of them would give up Kiki.
Rob, who should have received immediate emergency medical attention, was taken from United Hospital to the Westchester Medical Center. Beyond recovery, he was declared, “brain dead,” and removed from life support seven days after the incident, April 30, 2002. John Porzio, Jr., had the nerve to act as a pallbearer, and display sympathy and sorrow, publicly, while never whispering a word about Kiki, and never admitting the betrayal
of Rob.
Mrs. Pirro would allow more than two months to pass without prosecuting anyone. Then, knowing that she had to, at least, make some apparent effort to prosecute the puncher, Patrick Rukaj, if no one else, she sent the case to a grand jury, totally overcharging him with Felony Assault, and instructing the jury so as not to produce an indictment. However, Mrs. Pirro did not anticipate the strong response that would come from the West Harrison Community, Rob’s peers in particular, who knew from classmates and friends closer to the incident what had gone on, and who also knew that Pirro’s daughter had been there, and had gone absent from school for five weeks.
The kids kept up the pressure producing petitions, quickly signed by hundreds of local residents demanding action. Cutting a further deal with Rukaj, and even arranging for his legal representation, Pirro went back into
the grand jury on a Misdemeanor Assault charge assuring Rukaj that he would receive Youthful Offender treatment, and no jail time. At one point, in July, three months after the incident, she showed up at a local shop in
West Harrison, from which a letter had come criticizing her failure to prosecute the case. She was accompanied by ADA Patricia Murphy, carrying posters and illustrations, to put on a ‘dog and pony show.’
Arriving at that gathering, she was taken by surprise, not having expected the nearly forty parents and two newspaper reporters, who also showed up. When asked outright by one of the reporters to respond to the
widespread rumor that her daughter Kiki had been at the party, Pirro said, “She wasn’t there when the assault happened.”
But she was there, alright. And, because she was, everyone skated. Because she was, statements given to police were shredded, and we were told that giving false reports to the police was not actionable. Because she was,
two dozen young adults were never held accountable for their reckless, selfish conduct that sealed Rob Viscome’s fate. Because she was, those same youngsters will never have closure because there was no acknowledgement of right from wrong, no statement of truth, no community service, no relief, only lifelong guilt and regret.
To those young men and women, and to all those police officers, school masters, judges, assistant district attorneys, lawyers, all of you who willingly got sewn up into Jeanine Pirro’s lie – you know who you are – on this, the fifth anniversary of young Rob Viscome’s death we say, It’s never too late to tell the truth.
By Richard Blassberg
Lies Beget Lies
Next Monday will mark the fifth anniversary of a tragic incident, a dark moment in the history of the Town of Harrison, and, in truth, the entire Westchester Community. And, while there was no reversing the unthinkable
events that cost a beautiful young man his life, just eight days before what would have been his eighteenth birthday, the lies and the betrayal set in motion by Jeanine Pirro in order to protect, and preserve, her position
cast the die that even five years later holds some two dozen young adults, including her daughter, in indefinite purgatory.
On April 23, 2002, when Harrison High School experienced an early afternoon power failure, and school officials decided to release the students more than two hours early, several of them, juniors and seniors, would end up at the Porzio household, just around the corner from the home of District Attorney Jeanine Pirro, and a couple of houses from the former Rukaj home. Mr. and Mrs.Porzio were away, entrusting their daughter Beth, a junior at Harrison High, and their son John, Jr., a senior at Rye Country Day School, to look after their home.
Given the availability of the house, Beth invited more than twenty of her schoolmates, including Rob Viscome
and Patrick Rukaj, for what would become an afternoon drinking and substance abuse party. Lots of beer and other intoxicants were flowing, and it wasn’t long before words were exchanged between Rob and Patrick.
Some accounts have suggested that Rob may have teased Rukaj about his father, who, having won $18 million
in the State Lottery, was away in prison for having killed two members of his extended family in a “blood feud” involving the wife of his cousin.
Whatever the provocative exchange that occurred, Viscome and Rukaj stepped out of the playroom onto the stone patio where Rukaj threw a sucker punch to Rob’s face as Rob bent over to pick up Rukaj’s chain, causing him to fall over backward, striking his head. He would never regain consciousness.
A call to John Porzio, Jr. would bring him home “on the double.” But he was not the only arrival from Rye Country Day School. Christine Pirro, the DA’s daughter, better known to her friends as Kiki, would show up as well. Upon arrival John would immediately tell everyone, “This didn’t happen here.”
He would not permit anyone to phone out for emergency medical assistance. Instead, two dozen young men and women would leave their friend lying in a coma, fluid coming from his nose and mouth, as they cleaned up
beer cans, bottles of alcoholic beverages, and other substance paraphernalia, for almost half an hour, before deciding to lift him, reportedly dropping him twice on his head, as they carried his lifeless body to Ashley Fanelli’s BMW.
Putting him in the front passenger seat, they drove to United Hospital, little more than a mile away, in Port Chester. The story Harrison Police would get in one form, or another, from the youngsters, was what they initially
told the emergency personnel at United, that Rob Viscome had fallen from the monkey bars at a local park.
No matter what the story, it would not matter because as soon as Jeanine Pirro became aware of the incident,
truth “went south;” Kiki was literally pulled out of the situation and disappeared from school, from Westchester, from New York, for five weeks. Statements, taken from her friends, were shredded by Harrison Police. There
was a clear understanding that none of the kids involved would be prosecuted, and none of them would give up Kiki.
Rob, who should have received immediate emergency medical attention, was taken from United Hospital to the Westchester Medical Center. Beyond recovery, he was declared, “brain dead,” and removed from life support seven days after the incident, April 30, 2002. John Porzio, Jr., had the nerve to act as a pallbearer, and display sympathy and sorrow, publicly, while never whispering a word about Kiki, and never admitting the betrayal
of Rob.
Mrs. Pirro would allow more than two months to pass without prosecuting anyone. Then, knowing that she had to, at least, make some apparent effort to prosecute the puncher, Patrick Rukaj, if no one else, she sent the case to a grand jury, totally overcharging him with Felony Assault, and instructing the jury so as not to produce an indictment. However, Mrs. Pirro did not anticipate the strong response that would come from the West Harrison Community, Rob’s peers in particular, who knew from classmates and friends closer to the incident what had gone on, and who also knew that Pirro’s daughter had been there, and had gone absent from school for five weeks.
The kids kept up the pressure producing petitions, quickly signed by hundreds of local residents demanding action. Cutting a further deal with Rukaj, and even arranging for his legal representation, Pirro went back into
the grand jury on a Misdemeanor Assault charge assuring Rukaj that he would receive Youthful Offender treatment, and no jail time. At one point, in July, three months after the incident, she showed up at a local shop in
West Harrison, from which a letter had come criticizing her failure to prosecute the case. She was accompanied by ADA Patricia Murphy, carrying posters and illustrations, to put on a ‘dog and pony show.’
Arriving at that gathering, she was taken by surprise, not having expected the nearly forty parents and two newspaper reporters, who also showed up. When asked outright by one of the reporters to respond to the
widespread rumor that her daughter Kiki had been at the party, Pirro said, “She wasn’t there when the assault happened.”
But she was there, alright. And, because she was, everyone skated. Because she was, statements given to police were shredded, and we were told that giving false reports to the police was not actionable. Because she was,
two dozen young adults were never held accountable for their reckless, selfish conduct that sealed Rob Viscome’s fate. Because she was, those same youngsters will never have closure because there was no acknowledgement of right from wrong, no statement of truth, no community service, no relief, only lifelong guilt and regret.
To those young men and women, and to all those police officers, school masters, judges, assistant district attorneys, lawyers, all of you who willingly got sewn up into Jeanine Pirro’s lie – you know who you are – on this, the fifth anniversary of young Rob Viscome’s death we say, It’s never too late to tell the truth.
Our Readers Respond...
Affordable Housing in Greenburgh
Dear Editor:
Westhab wants to tear down a former homeless shelter located on Route 119 (near the County Center) and
hopes to replace the 61 unit shelter with 43 apartments.
The apartments will be rented to working families. Studio apartments will rent for about $800 a month. 2 bedroom apartments will rent for about $1300. Families will be eligible to rent the apartments if their income is between $47,950 to $76,720.
The current building was built in the 1950s.WESTHAB has not submitted their application to the town as
of yet and hopes to finalize plans within the next few weeks. I have had some initial discussions with the president
of the local civic association and hope to meet with other neighbors who reside in the Fulton Park section
of town to discuss the proposal in greater detail.
Paul Feiner,
Supervisor, Town of Greeburgh
Rough Divorce? You’re Not Alone
Dear Editor:
I ask readers going through divorce in Westchester: Are you under a TOP (Temporary Order of Protection)
unnecessarily (e.g. based on bogus allegations signed off by your ex-spouse in a verified court-filed petition)?
Has your spouse chosen to use your children as pawns completely disregarding what is in the best interest
of your children? Do you feel like your kids have been kidnapped by the “system”? Are you being denied unrestricted access to your home and your children even though you have been a good parent?
This is not some weird nightmare, this is reality here in Westchester County. There are currently many men and women in Westchester County who are in the same unfortunate situation. Well, a few of us have taken an interesting approach to the problem.
Matthew Kletter
Affordable Housing in Greenburgh
Dear Editor:
Westhab wants to tear down a former homeless shelter located on Route 119 (near the County Center) and
hopes to replace the 61 unit shelter with 43 apartments.
The apartments will be rented to working families. Studio apartments will rent for about $800 a month. 2 bedroom apartments will rent for about $1300. Families will be eligible to rent the apartments if their income is between $47,950 to $76,720.
The current building was built in the 1950s.WESTHAB has not submitted their application to the town as
of yet and hopes to finalize plans within the next few weeks. I have had some initial discussions with the president
of the local civic association and hope to meet with other neighbors who reside in the Fulton Park section
of town to discuss the proposal in greater detail.
Paul Feiner,
Supervisor, Town of Greeburgh
Rough Divorce? You’re Not Alone
Dear Editor:
I ask readers going through divorce in Westchester: Are you under a TOP (Temporary Order of Protection)
unnecessarily (e.g. based on bogus allegations signed off by your ex-spouse in a verified court-filed petition)?
Has your spouse chosen to use your children as pawns completely disregarding what is in the best interest
of your children? Do you feel like your kids have been kidnapped by the “system”? Are you being denied unrestricted access to your home and your children even though you have been a good parent?
This is not some weird nightmare, this is reality here in Westchester County. There are currently many men and women in Westchester County who are in the same unfortunate situation. Well, a few of us have taken an interesting approach to the problem.
Matthew Kletter
In Our Opinion:
Nick Spano Insults Our Intelligence
Former State Senator Nicholas Spano would appear to be a brazen liar whose denials and claims insult our intelligence, given that his last three election victories, 2000, 2002, and 2004, all involved election fraud. The contest in 2004 required a massive conspiracy to put him across. There was a good reason why it was the longest-disputed election in New York State history. It isn’t easy to turn a loss by more than three hundred votes into a victory by eighteen.
And, make no mistake about it, the eighteen stood for Nick, his fifteen siblings, and both of his parents. He and his henchmen, including, admitted election fraudster, Anthony Mangone, who had to cover his smirk throughout the last count, were just that cynical.
That conspiracy which ran from Election Day in November 2004, all the way into February of the next year, got everybody into the act, including, but certainly not limited to: Jeanine Pirro, Joe Bruno, Appellate Division Judge Robert Spolzino, Supreme Court Justice Ira Warshawsky, Election Commissioners Reginald LaFayette
and Carolee Sunderland, the Westchester County Department of Public Safety, Anthony Mangone, and a host of other Spano henchmen.
Now, this man who spent nearly three decades in Albany feeding from the same contaminated trough as Guy Velella and others of that ilk, building up a staff of more than thirty, with a payroll of more than $1.2 million, giving jobs to people like Anthony Mangone, Giulio Cavallo, under investigation for election fraud, James Surdoval, convicted pedophile, and Zehy Jereis, convicted drug dealer and election fraudster, would like us to believe he was a mere disinterested party with regard to the $100,000 consultant fee paid to Jereis from the “Member Item” $175,000 grant that he obtained for the Yonkers Chamber of Horrors, oops, We
meant Commerce.
This man with unclean hands would have us believe that he had no foreknowledge that Zehy Jereis, who he personally installed as Yonkers Republican Committee Chairman, who he gave a six-figure job to as his Administrative Assistant, and who he put into the County Board of Elections despite his election fraud,
and drug dealing conviction, would be getting $100,000 as a consultant from the $175,000 grant he had arranged for the Chamber. Like Jereis, Nick would have us believe that he had no influence, no say, in the Chamber’s selection.
We say, Tell it to the Marines. Mr. Spano’s problem is simply that he and his Mob have been getting away with such blatant corruption for so long, aided, abetted, and protected by Jeanine Pirro, George Pataki, and others, including certain very corrupt judges, that he believes we’re all a bunch of fools. He believes that he can
get away with anything, even signing off on court-appointed custodialships, and committeeships of incompetents, using “Esq.” after his name, hundreds of thousands of dollars worth, though he is not a law school graduate. One particular judge has been rumored to be fee-splitting for years.
One has to wonder about a professed public servant so closely aligned with admitted, and convicted, pedophiles, drug dealers, and election fixers. It’s not as though he’s been running a rehab agency for reformed and repentant criminal offenders.
Quite the contrary; in fact, the election offenses were committed in Nick’s behalf. Anthony Mangone was Nick’s campaign manager in 2000 when he forged 166 Green Party and Independence Party primary ballots. We are reminded of the old expression, “Show me your friends and I’ll tell you who you are.”
Nick Spano Insults Our Intelligence
Former State Senator Nicholas Spano would appear to be a brazen liar whose denials and claims insult our intelligence, given that his last three election victories, 2000, 2002, and 2004, all involved election fraud. The contest in 2004 required a massive conspiracy to put him across. There was a good reason why it was the longest-disputed election in New York State history. It isn’t easy to turn a loss by more than three hundred votes into a victory by eighteen.
And, make no mistake about it, the eighteen stood for Nick, his fifteen siblings, and both of his parents. He and his henchmen, including, admitted election fraudster, Anthony Mangone, who had to cover his smirk throughout the last count, were just that cynical.
That conspiracy which ran from Election Day in November 2004, all the way into February of the next year, got everybody into the act, including, but certainly not limited to: Jeanine Pirro, Joe Bruno, Appellate Division Judge Robert Spolzino, Supreme Court Justice Ira Warshawsky, Election Commissioners Reginald LaFayette
and Carolee Sunderland, the Westchester County Department of Public Safety, Anthony Mangone, and a host of other Spano henchmen.
Now, this man who spent nearly three decades in Albany feeding from the same contaminated trough as Guy Velella and others of that ilk, building up a staff of more than thirty, with a payroll of more than $1.2 million, giving jobs to people like Anthony Mangone, Giulio Cavallo, under investigation for election fraud, James Surdoval, convicted pedophile, and Zehy Jereis, convicted drug dealer and election fraudster, would like us to believe he was a mere disinterested party with regard to the $100,000 consultant fee paid to Jereis from the “Member Item” $175,000 grant that he obtained for the Yonkers Chamber of Horrors, oops, We
meant Commerce.
This man with unclean hands would have us believe that he had no foreknowledge that Zehy Jereis, who he personally installed as Yonkers Republican Committee Chairman, who he gave a six-figure job to as his Administrative Assistant, and who he put into the County Board of Elections despite his election fraud,
and drug dealing conviction, would be getting $100,000 as a consultant from the $175,000 grant he had arranged for the Chamber. Like Jereis, Nick would have us believe that he had no influence, no say, in the Chamber’s selection.
We say, Tell it to the Marines. Mr. Spano’s problem is simply that he and his Mob have been getting away with such blatant corruption for so long, aided, abetted, and protected by Jeanine Pirro, George Pataki, and others, including certain very corrupt judges, that he believes we’re all a bunch of fools. He believes that he can
get away with anything, even signing off on court-appointed custodialships, and committeeships of incompetents, using “Esq.” after his name, hundreds of thousands of dollars worth, though he is not a law school graduate. One particular judge has been rumored to be fee-splitting for years.
One has to wonder about a professed public servant so closely aligned with admitted, and convicted, pedophiles, drug dealers, and election fixers. It’s not as though he’s been running a rehab agency for reformed and repentant criminal offenders.
Quite the contrary; in fact, the election offenses were committed in Nick’s behalf. Anthony Mangone was Nick’s campaign manager in 2000 when he forged 166 Green Party and Independence Party primary ballots. We are reminded of the old expression, “Show me your friends and I’ll tell you who you are.”
Court Report:
Harrison Police Officers File Complaint In Federal Court
Against Chief David Hall And Lt. Lawrence Marshall
Officers Allege Forgery, Theft, and Civil Rights Violations
Editor’s Note:
The complaint reproduced, in part, below, filed two weeks ago in United States Federal District Court, White Plains, in charging Town of Harrison Police Chief David Hall and Lieutenant Lawrence Marshall, specifies both
criminal offenses, and violation of the Civil Rights of the Plaintiff Police Officers, under color of law. The action is being brought in Federal Court because the Plaintiffs do not believe they can obtain justice in State Court.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
WILLIAM C. DUFFELMEYER, MICHAEL
WALTHER, STEVEN HEISLER, JEFF NARDI,
STEPHEN M. CARPINIELLO, EDWARD 07 Civ. ( )
ARCE, RALPH TANCREDI, PETER
DeVITTORIO, MICHAEL MARINELLI,
and ARTHUR MARINELLI,
Plaintiffs, COMPLAINT
-against-
LAWRENCE MARSHALL, individually,
DAVID HALL, individually, and Jury Trial Demanded
the TOWN/VILLAGE OF HARRISON,
New York,
Defendants.
----------------------------------------------------------x
Plaintiffs WILLIAM C. DUFFELMEYER, MICHAEL WALTHER,
STEVEN HEISLER, JEFF NARDI, STEPHEN M. CARPINIELLO,
EDWARD ARCE, RALPH TANCREDI, PETER DeVITTORIO,
MICHAEL MARINELLI, and ARTHUR MARINELLI by their attorneys
Lovett & Gould, LLP, for their complaint respectfully state:
NATURE OF THE ACTION
1. This is an action for compensatory and punitive damages, resulting
from jointly engaged-in conduct of Defendants taken while acting
under color of the laws of the State of New York, proximately resulting of
violations of Plaintiff ’s rights as guaranteed by the First Amendment to
the United States Constitution, 42 U.S.C. §1983.
JURISDICTION
2. The Court’s jurisdiction is invoked pursuant to 28 U.S.C. §§1331,
1343.
THE PARTIES
3. Plaintiffs WILLIAM C. DUFFELMEYER, MICHAEL WALTHER,
STEVEN HEISLER, JEFF NARDI, STEPHEN M. CARPINIELLO,
EDWARD ARCE, RALPH TANCREDI, PETER DeVITTORIO,
MICHAEL MARINELLI, and ARTHUR MARINELLI are citizens of the
United States, domiciliaries of the State of New York, and residents of the
Northern Counties. Each of the Plaintiffs is employed as a sworn member
of the police department of the Defendant Town/Village of Harrison.
4. Defendant LAWRENCE MARSHALL (hereinafter “Marshall”), who
is sued in his individual and personal capacities only, at all times relevant
to this complaint was employed as a Lieutenant in the police department
of the said Town/Village.
5. Defendant DAVID HALL (hereinafter “Hall”), who is sued in
his individual and personal capacities only, at all times relevant to this
complaint was employed as the Chief of Police of the Defendant Town/
Village.
6. Defendant TOWN/VILLAGE OF HARRISON, New York
(hereinafter “Town”), is a municipal corporate subdivision of the State
of New York duly existing by reason of and pursuant to the laws of said
State.
THE FACTS
7. By correspondence dated March 28, 2007, Plaintiffs Duffelmeyer,
Heisler, Carpiniello, Tancredi, Walther, Arce, and DeVittorio advised the
members of the Town’s Board of Police Commissioner and Police Captain
Anthony Marraccini in pertinent respect:
“This letter is to inform you of a disturbing set of circumstances
that may constitute the possible commission of a crime..
Editor’s Note:
The complaint reproduced, in part, below, filed two weeks ago in United
States Federal District Court, White Plains, in charging Town of Harrison
Police Chief David Hall and Lieutenant Lawrence Marshall, specifies both
criminal offenses, and violation of the Civil Rights of the Plaintiff Police
Officers, under color of law. The action is being brought in Federal Court
because the Plaintiffs do not believe they can obtain justice in State Court.
Harrison Police Officers File Complaint In Federal Court
Against Chief David Hall And Lt. Lawrence Marshall
Officers Allege Forgery, Theft, and Civil Rights Violations
In January, 2007, [PBA] President Tancredi was conducting a
customary examination of the many donations the Harrison Police
Association receives during the Christmas holiday season. Pursuant to
his examination, President Tancredi noticed that Brae Burn Country
Club, as well as other donors, had not sent their customary annual
donation. He inquired with the administration at Brae Burn CC as to
whether they had sent or were going to send their annual donation for
2006. The administration said that they had made a donation of $2,500.00
and that the check was personally picked up by Chief Hall at Brae
Burn CC. The Brae Burn CC administration said that they would look
into the matter and get back to President Tancredi. President Tancredi
and other members of the [PBA’S] executive board were contacted a
short time later and the Brae Burn CC administration was disturbed
to find out that the check had been altered and the funds had been
deposited in the New York State Chiefs of Police Association account
(Chief Hall was the President of the Chiefs Association at the time).
The Brae Burn administration was very clear with President
Tancredi that the check was made out to the Harrison Police
Association and was intended to be a charitable donation to the
Harrison Police Association (see enclosed copy of check). Brae
Burn said they received a receipt (see enclosed copy) for an
advertisement in the Chiefs of Police Association Journal a short
time after Chief Hall picked up the check, but apparently Chief
Hall never discussed the advertisement with the Brae Burn
charitable donation committee and Brae Burn did not authorize
anyone to cross out Harrison in the payee line and replace it with
Chiefs. They also said they were very surprised when they saw that
the funds had gone to the Chiefs of Police Association and not the
Harrison Police Association.
President Tancredi, under his belief that a mistake had been
made, discussed the matter with the Association’s executive board
and some other members of the Association. Vice President
Michael Walther subsequently asked Chief Hall if he had any
checks or donations that were intended for the Harrison Police
Association. The hope was that a mistake had been made. In the past,
some donations that were intended for the Association had been
mistakenly deposited into the Town of Harrison accounts and
reimbursements by the Town were made to the Association when
the errors were made apparent. Chief Hall, however, informed
Vice President Walther that he did not have any checks or any
funds that were intended for the Association.
. . .[T]he [PBA] members concluded that it was possible that the
Brae Burn donation check may have been intentionally altered and
redirected into the Chiefs of Police account. As this would
constitute a criminal act, it [is] the understanding of the members of
the Association with knowledge of this possible crime that we have
an obligation to report the incident to the Harrison Police
Department. . .We respectfully request that you investigate this
matter on our behalf. . .It is also our understanding that if we are
not comfortable or disagree with the results of your investigation,
we reserve the right as potential crime victims to pursue the matter
with another law enforcement agency.”
Annexed to the complaint and made and part hereof are copies of the
referenced correspondence and enclosures.
8. Within a matter of hours of the delivery of the correspondence
referenced in the preceding paragraph “7”, Hall directed Marshall and
others in the administration of the Police Department to investigate
the PBA members’ complaint - - not with a view towards ascertaining
if a crime had indeed been committed, but rather with the self-serving
objective of covering-up that crime and silencing the Plaintiffs.
9. In that connection Marshall personally advised the Plaintiffs or
virtually all of the Plaintiffs that they were ordered to silence and were
henceforth forbidden to communicate with any other law enforcement
agencies and/or members of the Harrison Police Department and/or
members of the Harrison Police Association with respect to their factbased
beliefs that Hall had forged the subject check, been in criminal
possession of that forged instrument, and intentionally stole on behalf of
his Chiefs Association moneys he knew were intended for the Harrison
Police Association.
10. With respect to the “gag” order imposed by Marshall for Hall,
Marshall informed Plaintiffs that the issue of Hall’s apparent commission
of several felonies was being referred to the so-called Public Integrity
Bureau of the Westchester County District Attorney’s Office -----.
11. Each of the Plaintiffs is aware of Marshall’s order, Marshall
and Hall’s threat of retaliatory disciplinary action in the event of noncompliance,
and the self-evident cover-up presently underway to insulate
Hall from criminal prosecution.
12. As a proximate result each of the Plaintiffs has been chilled in the
prospective exercise of his rights of association, speech and to petition
government for the redress of grievance. None will risk the threat of a
disciplinary prosecution with the prospect of an indefinite suspension
without pay. None will report to any other law enforcement agency the
apparent crimes as committed by Hall. None will discuss the matter
further.
13. By reason of Defendants’ conduct each of the Plaintiffs has been
caused: emotional upset; anxiety; violations of their First Amendment
protected rights; humiliation; embarrassment; shame and has otherwise
been rendered sick and sore.
AS AND FOR A CLAIM
13. Repeat and reallege as if fully set forth the allegations of fact
contained in paragraphs “1” to “`12”, inclusive.
14. Under the premises Defendants’ conduct violated Plaintiffs’
rights as guaranteed by the First Amendment to the United States
Constitution, 42 U.S.C. §1983.
WHEREFORE a judgment is respectfully demanded:
a. Awarding against the individually named Defendants
such punitive damages as the jury may impose,
b. Awarding against all Defendants such compensatory
damages as the jury may determine,
c. Awarding reasonable attorney’s fees and costs, and,
d. Granting such other and further relief as to the Court
seems just and proper.
Dated: White Plains, N.Y.
April 6, 2007
LOVETT & GOULD, LLP
By:____________________
Jonathan Lovett (4854)
Attorneys for Plaintiffs
222 Bloomingdale Road
White Plains, N.Y. 10605
Harrison Police Officers File Complaint In Federal Court
Against Chief David Hall And Lt. Lawrence Marshall
Officers Allege Forgery, Theft, and Civil Rights Violations
Editor’s Note:
The complaint reproduced, in part, below, filed two weeks ago in United States Federal District Court, White Plains, in charging Town of Harrison Police Chief David Hall and Lieutenant Lawrence Marshall, specifies both
criminal offenses, and violation of the Civil Rights of the Plaintiff Police Officers, under color of law. The action is being brought in Federal Court because the Plaintiffs do not believe they can obtain justice in State Court.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
WILLIAM C. DUFFELMEYER, MICHAEL
WALTHER, STEVEN HEISLER, JEFF NARDI,
STEPHEN M. CARPINIELLO, EDWARD 07 Civ. ( )
ARCE, RALPH TANCREDI, PETER
DeVITTORIO, MICHAEL MARINELLI,
and ARTHUR MARINELLI,
Plaintiffs, COMPLAINT
-against-
LAWRENCE MARSHALL, individually,
DAVID HALL, individually, and Jury Trial Demanded
the TOWN/VILLAGE OF HARRISON,
New York,
Defendants.
----------------------------------------------------------x
Plaintiffs WILLIAM C. DUFFELMEYER, MICHAEL WALTHER,
STEVEN HEISLER, JEFF NARDI, STEPHEN M. CARPINIELLO,
EDWARD ARCE, RALPH TANCREDI, PETER DeVITTORIO,
MICHAEL MARINELLI, and ARTHUR MARINELLI by their attorneys
Lovett & Gould, LLP, for their complaint respectfully state:
NATURE OF THE ACTION
1. This is an action for compensatory and punitive damages, resulting
from jointly engaged-in conduct of Defendants taken while acting
under color of the laws of the State of New York, proximately resulting of
violations of Plaintiff ’s rights as guaranteed by the First Amendment to
the United States Constitution, 42 U.S.C. §1983.
JURISDICTION
2. The Court’s jurisdiction is invoked pursuant to 28 U.S.C. §§1331,
1343.
THE PARTIES
3. Plaintiffs WILLIAM C. DUFFELMEYER, MICHAEL WALTHER,
STEVEN HEISLER, JEFF NARDI, STEPHEN M. CARPINIELLO,
EDWARD ARCE, RALPH TANCREDI, PETER DeVITTORIO,
MICHAEL MARINELLI, and ARTHUR MARINELLI are citizens of the
United States, domiciliaries of the State of New York, and residents of the
Northern Counties. Each of the Plaintiffs is employed as a sworn member
of the police department of the Defendant Town/Village of Harrison.
4. Defendant LAWRENCE MARSHALL (hereinafter “Marshall”), who
is sued in his individual and personal capacities only, at all times relevant
to this complaint was employed as a Lieutenant in the police department
of the said Town/Village.
5. Defendant DAVID HALL (hereinafter “Hall”), who is sued in
his individual and personal capacities only, at all times relevant to this
complaint was employed as the Chief of Police of the Defendant Town/
Village.
6. Defendant TOWN/VILLAGE OF HARRISON, New York
(hereinafter “Town”), is a municipal corporate subdivision of the State
of New York duly existing by reason of and pursuant to the laws of said
State.
THE FACTS
7. By correspondence dated March 28, 2007, Plaintiffs Duffelmeyer,
Heisler, Carpiniello, Tancredi, Walther, Arce, and DeVittorio advised the
members of the Town’s Board of Police Commissioner and Police Captain
Anthony Marraccini in pertinent respect:
“This letter is to inform you of a disturbing set of circumstances
that may constitute the possible commission of a crime..
Editor’s Note:
The complaint reproduced, in part, below, filed two weeks ago in United
States Federal District Court, White Plains, in charging Town of Harrison
Police Chief David Hall and Lieutenant Lawrence Marshall, specifies both
criminal offenses, and violation of the Civil Rights of the Plaintiff Police
Officers, under color of law. The action is being brought in Federal Court
because the Plaintiffs do not believe they can obtain justice in State Court.
Harrison Police Officers File Complaint In Federal Court
Against Chief David Hall And Lt. Lawrence Marshall
Officers Allege Forgery, Theft, and Civil Rights Violations
In January, 2007, [PBA] President Tancredi was conducting a
customary examination of the many donations the Harrison Police
Association receives during the Christmas holiday season. Pursuant to
his examination, President Tancredi noticed that Brae Burn Country
Club, as well as other donors, had not sent their customary annual
donation. He inquired with the administration at Brae Burn CC as to
whether they had sent or were going to send their annual donation for
2006. The administration said that they had made a donation of $2,500.00
and that the check was personally picked up by Chief Hall at Brae
Burn CC. The Brae Burn CC administration said that they would look
into the matter and get back to President Tancredi. President Tancredi
and other members of the [PBA’S] executive board were contacted a
short time later and the Brae Burn CC administration was disturbed
to find out that the check had been altered and the funds had been
deposited in the New York State Chiefs of Police Association account
(Chief Hall was the President of the Chiefs Association at the time).
The Brae Burn administration was very clear with President
Tancredi that the check was made out to the Harrison Police
Association and was intended to be a charitable donation to the
Harrison Police Association (see enclosed copy of check). Brae
Burn said they received a receipt (see enclosed copy) for an
advertisement in the Chiefs of Police Association Journal a short
time after Chief Hall picked up the check, but apparently Chief
Hall never discussed the advertisement with the Brae Burn
charitable donation committee and Brae Burn did not authorize
anyone to cross out Harrison in the payee line and replace it with
Chiefs. They also said they were very surprised when they saw that
the funds had gone to the Chiefs of Police Association and not the
Harrison Police Association.
President Tancredi, under his belief that a mistake had been
made, discussed the matter with the Association’s executive board
and some other members of the Association. Vice President
Michael Walther subsequently asked Chief Hall if he had any
checks or donations that were intended for the Harrison Police
Association. The hope was that a mistake had been made. In the past,
some donations that were intended for the Association had been
mistakenly deposited into the Town of Harrison accounts and
reimbursements by the Town were made to the Association when
the errors were made apparent. Chief Hall, however, informed
Vice President Walther that he did not have any checks or any
funds that were intended for the Association.
. . .[T]he [PBA] members concluded that it was possible that the
Brae Burn donation check may have been intentionally altered and
redirected into the Chiefs of Police account. As this would
constitute a criminal act, it [is] the understanding of the members of
the Association with knowledge of this possible crime that we have
an obligation to report the incident to the Harrison Police
Department. . .We respectfully request that you investigate this
matter on our behalf. . .It is also our understanding that if we are
not comfortable or disagree with the results of your investigation,
we reserve the right as potential crime victims to pursue the matter
with another law enforcement agency.”
Annexed to the complaint and made and part hereof are copies of the
referenced correspondence and enclosures.
8. Within a matter of hours of the delivery of the correspondence
referenced in the preceding paragraph “7”, Hall directed Marshall and
others in the administration of the Police Department to investigate
the PBA members’ complaint - - not with a view towards ascertaining
if a crime had indeed been committed, but rather with the self-serving
objective of covering-up that crime and silencing the Plaintiffs.
9. In that connection Marshall personally advised the Plaintiffs or
virtually all of the Plaintiffs that they were ordered to silence and were
henceforth forbidden to communicate with any other law enforcement
agencies and/or members of the Harrison Police Department and/or
members of the Harrison Police Association with respect to their factbased
beliefs that Hall had forged the subject check, been in criminal
possession of that forged instrument, and intentionally stole on behalf of
his Chiefs Association moneys he knew were intended for the Harrison
Police Association.
10. With respect to the “gag” order imposed by Marshall for Hall,
Marshall informed Plaintiffs that the issue of Hall’s apparent commission
of several felonies was being referred to the so-called Public Integrity
Bureau of the Westchester County District Attorney’s Office -----.
11. Each of the Plaintiffs is aware of Marshall’s order, Marshall
and Hall’s threat of retaliatory disciplinary action in the event of noncompliance,
and the self-evident cover-up presently underway to insulate
Hall from criminal prosecution.
12. As a proximate result each of the Plaintiffs has been chilled in the
prospective exercise of his rights of association, speech and to petition
government for the redress of grievance. None will risk the threat of a
disciplinary prosecution with the prospect of an indefinite suspension
without pay. None will report to any other law enforcement agency the
apparent crimes as committed by Hall. None will discuss the matter
further.
13. By reason of Defendants’ conduct each of the Plaintiffs has been
caused: emotional upset; anxiety; violations of their First Amendment
protected rights; humiliation; embarrassment; shame and has otherwise
been rendered sick and sore.
AS AND FOR A CLAIM
13. Repeat and reallege as if fully set forth the allegations of fact
contained in paragraphs “1” to “`12”, inclusive.
14. Under the premises Defendants’ conduct violated Plaintiffs’
rights as guaranteed by the First Amendment to the United States
Constitution, 42 U.S.C. §1983.
WHEREFORE a judgment is respectfully demanded:
a. Awarding against the individually named Defendants
such punitive damages as the jury may impose,
b. Awarding against all Defendants such compensatory
damages as the jury may determine,
c. Awarding reasonable attorney’s fees and costs, and,
d. Granting such other and further relief as to the Court
seems just and proper.
Dated: White Plains, N.Y.
April 6, 2007
LOVETT & GOULD, LLP
By:____________________
Jonathan Lovett (4854)
Attorneys for Plaintiffs
222 Bloomingdale Road
White Plains, N.Y. 10605
Thursday, April 12, 2007
Our Readers Respond...
Dear Editor:
Reading your article regarding Judge Judith Kaye being out of touch, you mentioned the fact that it is well-known in political circles that Giulio Cavallo was furious at Dennis Glazer, spouse of Westchester County District Attorney Janet DiFiore, for reneging on his promise to pay Cavallo $30,000 for the cross-endorsement of the Independence Party.
I have been in the political circle of Westchester County for years and can say, without a doubt, that this is an extremely irresponsible statement and an outright fabrication.
Knowing Dennis Glazer for over twenty years, there has never been an individual that I have met that has higher professional and ethical standards, and one that is of stronger moral character.
Steve Sacripanti
North White Plains
Dear Editor:
Thank you for your continuing coverage of the Jing Kelly case. The fact that Gail Hiler cared little for Tristram, and instead was, and is, motivated by a misguided desire for revenge and retaliation is illustrated by the fact that
she sent Tristram away from her home in July 2003 to reside out of state with her brother, Douglas Kelly, in California. This was done only three months after an equally misguided family court judge erroneously, unlawfully, and improperly awarded permanent custody of Tristram to Gail Hiler (on March 20, 2003 in New York County Family Court) on a day Jing was not produced and could not participate.
It is now clear that during this six month period, Tristram was fairing poorly in Gail Hiler’s care. He was having “night tremors” while sleeping all alone on the third floor of Mrs. Hiler’s home, and, to Mrs. Hiler’s great annoyance, she had to go upstairs to the empty third floor quarters of this traumatized two year-
old child and comfort him so that he could fall back asleep. It never occurred to Ms. Hiler that the child should not be left alone up there on the third floor of her home but instead should have been near others in the household.
Poor Tristram, no wonder he was crying and having nightmares. No wonder he clutched the coat he had been wearing when he was last with his mother and sat numbly and quietly under a table for long periods of time (no doubt ignored by Mrs. Hiler all the while). It turns out that Tristram was brought to a child psychiatrist by Mrs. Hiler at least four times before she shipped him out to California to live outside her home. Before making this arrangement, she had sent Tristram to live in North Carolina with her sister, Tracy Kelly.
Mrs. Hiler told no one of Tristram’s difficulties while in her care. Mrs. Hiler told no one that she was shopping Tristram around to other paternal relatives and not caring for Tristram any longer herself. Astonishingly, Mrs. Hiler took Tristram back into her home during the month of January 2004 when both she and Douglas Kelly testified at Jing Kelly’s criminal trial. I guess she wanted to give everyone, including the court and jury, the impression that she was still caring for her ward. As soon as the trial ended, however, Tristram was rushed right
back to California to stay with Douglas Kelly. Would the jury have convicted Jing Kelly of anything had they known that Gail Hiler had shipped Tristram out of her home and was concealing this from everyone? It is a good question.
Mrs. Hiler contributed mightily to the circumstances which led to Jing Kelly’s decision to flee with her one-year-old son to China. For instance, she violated the terms of the temporary parole order by allowing Tristram’s father, Craig Kelly, to reside on a full time basis in her home all during the period Tristram was in her care (from December 26, 2000 through June 20, 2001). Moreover, Mrs. Hiler lied about this in her sworn testimony in the initial family court proceedings by claiming that her brother, Craig, was living in Brooklyn with her husband’s father. This was untrue at the time and Mrs. Hiler knew this full well.
The fact that Mrs. Hiler willfully and knowingly committed perjury in the above regard, speaks volumes about her own character and motivation. If she truly cared about Tristram, she would not have lied about the fact that her brother, Craig, was living full time in her household and alone with the baby without her being present, as had been required by the court order. Nor would she have refused to bring Tristram into Manhattan for visits with his mother and grandparents.
Beyond question, one of the most bizarre aspects of this case are the ploys used by the office of the Westchester
County District Attorney and the Town of Mamaroneck Police Department to arrange for Gail Hiler to go to Canada on Saturday, January 4, 2003 and, without entering customs, hang out at the Vancouver Airport until the police there could hand Tristram over to her (without benefit of any prior court scrutiny of this action being had either in New York or Canada). Everyone knew that Jing would be appearing before the Canadian court
the following Monday, January 6, 2003, and that Judge Schechter would be returning from vacation that day.
Thus, either the New York County Family Court (with involvement of the law guardian and mother’s counsel and ACS attorney) or the Canadian Court (in consultation with Judge Schechter by telephone conference) could have reviewed the matter and made a proper determination as to how things should have been handled.
What was the rush here? Why did Gail Hiler and the Westchester County District Attorney, Jeanine Pirro, and the Town of Mamaroneck Police want to snatch Tristram from Canada before any court or judge could inquire as to the facts and circumstances, and determine what was best for the child?
There is no excusing this. It was not a proper law enforcement role. Everyone in the office of the Westchester
County District Attorney or the Town of Mamaroneck Police Department who played a role in this improper
transfer of the child should hang their heads in shame. The impact on Tristram was disastrous. He languished in
the Hiler household while Mrs. Hiler herself basked in a media frenzy as television crews and newspaper reporters and neighbors trooped in and out of her household.
Mrs. Hiler testified that there was rarely a time when at least twenty or more people were not present
at her house. Tristram was overwhelmed, for sure. It appears that this unorthodox child transfer was purposely
arranged in Canada, with local police also acting independently of the courts there, so that Gail Hiler could
apply for custody of Tristram in Westchester County and bypass New York County entirely (where all the prior
litigation had occurred). Mrs. Hiler’s petitions were all transferred to New York County later on, anyway.
Not to be outdone, Judge Schechter in New York County Family Court denied this child visitation with his
mother, when Jing was finally returned to New York and arraigned and denied bail (on March 7, 2003).
The Valhalla jail facility was but a stone’s throw distant from the Larchmont home of Gail Hiler and visitation at the jail would have been supervised by a staff social worker employed for this purpose and would have been occurring in the most secure setting imaginable. It is unlikely that Jing Kelly could have gotten up, holding her
child, and simply walked out of that jail facility. Yet, this is the bogus reason the family court judge gave for refusing to order visitation at the time (a reason resoundingly rejected by the higher court on appeal). Just imagine how different Tristram’s life would be if this mother had been allowed to visit her son before he was transported back to New York and had she been allowed to visit her child while she was incarcerated in Valhalla pending her trial.
There comes a point when one has to ask, quite legitimately, why things were being done this way. What is so different about Jing Kelly that she did not deserve the normal application of law and common sense?
I have already marveled at the irony that Jeanine Pirro, the then-Westchester County District Attorney, was willing to spend thousands upon thousands of taxpayer dollars to prosecute this harmless mother for violating a temporary parole order issued by a court in a different county than Westchester, and to incarcerate that mother pending her criminal trial, but declined to secure the production of this mother to the very family court whose order had been previously violated, for conclusion of her neglect dispositional hearing. Does any of this make sense?
How coldhearted it was of Mrs. Pirro to refuse to spend $100 on transportation costs for this mother on March 20, 2003, the day of Jing Kelly’s continued family court hearing in New York County, while being willing to happily spend thousands and thousands to keep her locked up.
Equally coldhearted as Jeanine Pirro, Judge Schechter in the New York County Family Court refused to grant
an adjournment to Jing Kelly so that she could be produced on another date.
What was the rush here? The mother was still in jail awaiting her criminal trial and was not going anywhere. Tristram was still with Mrs. Hiler in Larchmont.
An adjournment would not have hurt anybody, but it would, perhaps, have enabled this mother to have a
say in what was being done with her child. The appellate court vigorously reversed and criticized this refusal on
the part of Judge Schechter to adjourn the matter instead of proceeding in the mother’s absence on March 20, 2003.
On that sad day in this child’s life, March 20, 2003, the New York County family court judge presiding over the
matter in the absence of the incarcerated mother and without taking any testimony from Gail Hiler whatsoever, awarded her permanent custody of Tristram.
This was not an authorized dispositional order under the Family Court Act and had dire consequences for the child. It was this unlawful and improper order, later reversed on appeal, that enabled Gail Hiler to begin sending Tristram around to other paternal relatives to secretly live out of state with them.
In addition to wrongly awarding custody of Tristram to Gail Hiler, Judge Schechter granted Mrs. Hiler a permanent order of protection (again without taking any testimony from Mrs. Hiler to establish a basis or justification for such relief) which prohibited this mother from attempting to contact her son or the Hiler home.
And, Judge Schechter denied visitation both to Jing Kelly and to the maternal grandparents, Ling Mei Xing and Hua Xiong, who reside in lower Manhattan. In essence, it was the erroneous, improper, and unlawful orders issued by Judge Schechter on March 20, 2003, that enabled Gail Hiler to isolate and conceal this child from
his birth mother and unlawfully and improperly transport the child out of state to reside in a different home.
Jing Kelly was freed from incarceration following the jury verdict rendered on January 27th, 2004. She was convicted not of the felony count that the Westchester District Attorney, Mrs. Pirro, had indicted her on, but of the misdemeanor count of custodial interference in the second degree. The maximum sentence of imprisonment on a misdemeanor is twelve months and were one to get the maximum sentence it would be customary and the norm to serve only eight months of it, due to getting one-third off for good behavior. Thus, Jing Kelly, who
had already served 13 months, had actually served an extra five months in jail for this offense. It is unlikely that Jing would have been sentenced to a year in jail on the misdemeanor conviction if she had been out on bail pending trial and had not yet done time. In truth, this mother probably spent more time in jail than any other mother convicted of the crime of Custodial Interference in the Second Degree in the State of New York. This is
because the Westchester County District Attorney, Jeanine Pirro, overcharged her with a felony count and opposed her release on bail pending trial.
One can only wonder what Jeanine Pirro was thinking or hoping to accomplish here. Certainly, she would not have advocated such harsh treatment for members of her own family who were found guilty of a crime.
Moreover, this needless prosecution of this mother with extraordinary ferocity and zeal, flies in the face of Mrs. Pirro’s often repeated claims that she is a champion for victims of domestic violence.
There was no need for any district attorney anywhere in the world to prosecute this mother for what she did. The
family court judge had sufficient power under Section 756 of the Judiciary Law to punish Jing Kelly for criminal contempt and incarcerate her for a period of up to six months and impose a fine as well. That was more than adequate punishment here.
There is no way that the New York County District Attorney’s office would have ever prosecuted this mother, knowing what they knew about her husband, Craig Kelly, who had been an assistant district attorney in that office. So why did Mrs. Pirro do so?
It was not a Westchester County family court order that was violated here. Any way you look at it, there was a
congruency between the over-zealous criminal prosecution of this mother and the totally unlawful rulings of the family court judge. Jing Kelly deserves a lot of credit for withstanding this battering in both the criminal court and family court. One can only imagine her dismay at learning, while confined in jail, that Judge Schechter had awarded custody of her son to Gail Hiler in her absence, and issued an Order of Protection barring her
from attempting to contact Gail Hiler or her son. It is now known that while Tristram was in the Hiler household during his mother’s criminal trial in January 2004, he saw a picture of Jing in the newspaper and pointing to it, exclaimed “mama.” It was not too late to save this situation, had Jing been granted contact and visitation
with her son, upon her release from incarceration in late January of 2004. The tragedy that unfolded here could readily have been avoided. It was not Jing Kelly’s fault that she did not regain visitation. She tried very hard by making applications of every manner to the Appellate Division, to the New York County Supreme Court, and to
Judge Schechter. The law guardian supported resumption of visitation, so why did it never occur?
Visitation for Jing and Tristram certainly would have occurred had Gail Hiler disclosed that Tristram was no
longer living in her home. Indeed, Jing probably would have then and there won outright custody of her son. The
refusal of Gail Hiler to disclose this cogent information to the various courts dealing with custody and visitation applications by this mother, including appellate courts, and to the law guardian, and to the mother herself was, and is, a crime; a crime far greater than anything Jing Kelly has ever done wrong.
Robert F. Wayburn
Dear Editor:
Reading your article regarding Judge Judith Kaye being out of touch, you mentioned the fact that it is well-known in political circles that Giulio Cavallo was furious at Dennis Glazer, spouse of Westchester County District Attorney Janet DiFiore, for reneging on his promise to pay Cavallo $30,000 for the cross-endorsement of the Independence Party.
I have been in the political circle of Westchester County for years and can say, without a doubt, that this is an extremely irresponsible statement and an outright fabrication.
Knowing Dennis Glazer for over twenty years, there has never been an individual that I have met that has higher professional and ethical standards, and one that is of stronger moral character.
Steve Sacripanti
North White Plains
Dear Editor:
Thank you for your continuing coverage of the Jing Kelly case. The fact that Gail Hiler cared little for Tristram, and instead was, and is, motivated by a misguided desire for revenge and retaliation is illustrated by the fact that
she sent Tristram away from her home in July 2003 to reside out of state with her brother, Douglas Kelly, in California. This was done only three months after an equally misguided family court judge erroneously, unlawfully, and improperly awarded permanent custody of Tristram to Gail Hiler (on March 20, 2003 in New York County Family Court) on a day Jing was not produced and could not participate.
It is now clear that during this six month period, Tristram was fairing poorly in Gail Hiler’s care. He was having “night tremors” while sleeping all alone on the third floor of Mrs. Hiler’s home, and, to Mrs. Hiler’s great annoyance, she had to go upstairs to the empty third floor quarters of this traumatized two year-
old child and comfort him so that he could fall back asleep. It never occurred to Ms. Hiler that the child should not be left alone up there on the third floor of her home but instead should have been near others in the household.
Poor Tristram, no wonder he was crying and having nightmares. No wonder he clutched the coat he had been wearing when he was last with his mother and sat numbly and quietly under a table for long periods of time (no doubt ignored by Mrs. Hiler all the while). It turns out that Tristram was brought to a child psychiatrist by Mrs. Hiler at least four times before she shipped him out to California to live outside her home. Before making this arrangement, she had sent Tristram to live in North Carolina with her sister, Tracy Kelly.
Mrs. Hiler told no one of Tristram’s difficulties while in her care. Mrs. Hiler told no one that she was shopping Tristram around to other paternal relatives and not caring for Tristram any longer herself. Astonishingly, Mrs. Hiler took Tristram back into her home during the month of January 2004 when both she and Douglas Kelly testified at Jing Kelly’s criminal trial. I guess she wanted to give everyone, including the court and jury, the impression that she was still caring for her ward. As soon as the trial ended, however, Tristram was rushed right
back to California to stay with Douglas Kelly. Would the jury have convicted Jing Kelly of anything had they known that Gail Hiler had shipped Tristram out of her home and was concealing this from everyone? It is a good question.
Mrs. Hiler contributed mightily to the circumstances which led to Jing Kelly’s decision to flee with her one-year-old son to China. For instance, she violated the terms of the temporary parole order by allowing Tristram’s father, Craig Kelly, to reside on a full time basis in her home all during the period Tristram was in her care (from December 26, 2000 through June 20, 2001). Moreover, Mrs. Hiler lied about this in her sworn testimony in the initial family court proceedings by claiming that her brother, Craig, was living in Brooklyn with her husband’s father. This was untrue at the time and Mrs. Hiler knew this full well.
The fact that Mrs. Hiler willfully and knowingly committed perjury in the above regard, speaks volumes about her own character and motivation. If she truly cared about Tristram, she would not have lied about the fact that her brother, Craig, was living full time in her household and alone with the baby without her being present, as had been required by the court order. Nor would she have refused to bring Tristram into Manhattan for visits with his mother and grandparents.
Beyond question, one of the most bizarre aspects of this case are the ploys used by the office of the Westchester
County District Attorney and the Town of Mamaroneck Police Department to arrange for Gail Hiler to go to Canada on Saturday, January 4, 2003 and, without entering customs, hang out at the Vancouver Airport until the police there could hand Tristram over to her (without benefit of any prior court scrutiny of this action being had either in New York or Canada). Everyone knew that Jing would be appearing before the Canadian court
the following Monday, January 6, 2003, and that Judge Schechter would be returning from vacation that day.
Thus, either the New York County Family Court (with involvement of the law guardian and mother’s counsel and ACS attorney) or the Canadian Court (in consultation with Judge Schechter by telephone conference) could have reviewed the matter and made a proper determination as to how things should have been handled.
What was the rush here? Why did Gail Hiler and the Westchester County District Attorney, Jeanine Pirro, and the Town of Mamaroneck Police want to snatch Tristram from Canada before any court or judge could inquire as to the facts and circumstances, and determine what was best for the child?
There is no excusing this. It was not a proper law enforcement role. Everyone in the office of the Westchester
County District Attorney or the Town of Mamaroneck Police Department who played a role in this improper
transfer of the child should hang their heads in shame. The impact on Tristram was disastrous. He languished in
the Hiler household while Mrs. Hiler herself basked in a media frenzy as television crews and newspaper reporters and neighbors trooped in and out of her household.
Mrs. Hiler testified that there was rarely a time when at least twenty or more people were not present
at her house. Tristram was overwhelmed, for sure. It appears that this unorthodox child transfer was purposely
arranged in Canada, with local police also acting independently of the courts there, so that Gail Hiler could
apply for custody of Tristram in Westchester County and bypass New York County entirely (where all the prior
litigation had occurred). Mrs. Hiler’s petitions were all transferred to New York County later on, anyway.
Not to be outdone, Judge Schechter in New York County Family Court denied this child visitation with his
mother, when Jing was finally returned to New York and arraigned and denied bail (on March 7, 2003).
The Valhalla jail facility was but a stone’s throw distant from the Larchmont home of Gail Hiler and visitation at the jail would have been supervised by a staff social worker employed for this purpose and would have been occurring in the most secure setting imaginable. It is unlikely that Jing Kelly could have gotten up, holding her
child, and simply walked out of that jail facility. Yet, this is the bogus reason the family court judge gave for refusing to order visitation at the time (a reason resoundingly rejected by the higher court on appeal). Just imagine how different Tristram’s life would be if this mother had been allowed to visit her son before he was transported back to New York and had she been allowed to visit her child while she was incarcerated in Valhalla pending her trial.
There comes a point when one has to ask, quite legitimately, why things were being done this way. What is so different about Jing Kelly that she did not deserve the normal application of law and common sense?
I have already marveled at the irony that Jeanine Pirro, the then-Westchester County District Attorney, was willing to spend thousands upon thousands of taxpayer dollars to prosecute this harmless mother for violating a temporary parole order issued by a court in a different county than Westchester, and to incarcerate that mother pending her criminal trial, but declined to secure the production of this mother to the very family court whose order had been previously violated, for conclusion of her neglect dispositional hearing. Does any of this make sense?
How coldhearted it was of Mrs. Pirro to refuse to spend $100 on transportation costs for this mother on March 20, 2003, the day of Jing Kelly’s continued family court hearing in New York County, while being willing to happily spend thousands and thousands to keep her locked up.
Equally coldhearted as Jeanine Pirro, Judge Schechter in the New York County Family Court refused to grant
an adjournment to Jing Kelly so that she could be produced on another date.
What was the rush here? The mother was still in jail awaiting her criminal trial and was not going anywhere. Tristram was still with Mrs. Hiler in Larchmont.
An adjournment would not have hurt anybody, but it would, perhaps, have enabled this mother to have a
say in what was being done with her child. The appellate court vigorously reversed and criticized this refusal on
the part of Judge Schechter to adjourn the matter instead of proceeding in the mother’s absence on March 20, 2003.
On that sad day in this child’s life, March 20, 2003, the New York County family court judge presiding over the
matter in the absence of the incarcerated mother and without taking any testimony from Gail Hiler whatsoever, awarded her permanent custody of Tristram.
This was not an authorized dispositional order under the Family Court Act and had dire consequences for the child. It was this unlawful and improper order, later reversed on appeal, that enabled Gail Hiler to begin sending Tristram around to other paternal relatives to secretly live out of state with them.
In addition to wrongly awarding custody of Tristram to Gail Hiler, Judge Schechter granted Mrs. Hiler a permanent order of protection (again without taking any testimony from Mrs. Hiler to establish a basis or justification for such relief) which prohibited this mother from attempting to contact her son or the Hiler home.
And, Judge Schechter denied visitation both to Jing Kelly and to the maternal grandparents, Ling Mei Xing and Hua Xiong, who reside in lower Manhattan. In essence, it was the erroneous, improper, and unlawful orders issued by Judge Schechter on March 20, 2003, that enabled Gail Hiler to isolate and conceal this child from
his birth mother and unlawfully and improperly transport the child out of state to reside in a different home.
Jing Kelly was freed from incarceration following the jury verdict rendered on January 27th, 2004. She was convicted not of the felony count that the Westchester District Attorney, Mrs. Pirro, had indicted her on, but of the misdemeanor count of custodial interference in the second degree. The maximum sentence of imprisonment on a misdemeanor is twelve months and were one to get the maximum sentence it would be customary and the norm to serve only eight months of it, due to getting one-third off for good behavior. Thus, Jing Kelly, who
had already served 13 months, had actually served an extra five months in jail for this offense. It is unlikely that Jing would have been sentenced to a year in jail on the misdemeanor conviction if she had been out on bail pending trial and had not yet done time. In truth, this mother probably spent more time in jail than any other mother convicted of the crime of Custodial Interference in the Second Degree in the State of New York. This is
because the Westchester County District Attorney, Jeanine Pirro, overcharged her with a felony count and opposed her release on bail pending trial.
One can only wonder what Jeanine Pirro was thinking or hoping to accomplish here. Certainly, she would not have advocated such harsh treatment for members of her own family who were found guilty of a crime.
Moreover, this needless prosecution of this mother with extraordinary ferocity and zeal, flies in the face of Mrs. Pirro’s often repeated claims that she is a champion for victims of domestic violence.
There was no need for any district attorney anywhere in the world to prosecute this mother for what she did. The
family court judge had sufficient power under Section 756 of the Judiciary Law to punish Jing Kelly for criminal contempt and incarcerate her for a period of up to six months and impose a fine as well. That was more than adequate punishment here.
There is no way that the New York County District Attorney’s office would have ever prosecuted this mother, knowing what they knew about her husband, Craig Kelly, who had been an assistant district attorney in that office. So why did Mrs. Pirro do so?
It was not a Westchester County family court order that was violated here. Any way you look at it, there was a
congruency between the over-zealous criminal prosecution of this mother and the totally unlawful rulings of the family court judge. Jing Kelly deserves a lot of credit for withstanding this battering in both the criminal court and family court. One can only imagine her dismay at learning, while confined in jail, that Judge Schechter had awarded custody of her son to Gail Hiler in her absence, and issued an Order of Protection barring her
from attempting to contact Gail Hiler or her son. It is now known that while Tristram was in the Hiler household during his mother’s criminal trial in January 2004, he saw a picture of Jing in the newspaper and pointing to it, exclaimed “mama.” It was not too late to save this situation, had Jing been granted contact and visitation
with her son, upon her release from incarceration in late January of 2004. The tragedy that unfolded here could readily have been avoided. It was not Jing Kelly’s fault that she did not regain visitation. She tried very hard by making applications of every manner to the Appellate Division, to the New York County Supreme Court, and to
Judge Schechter. The law guardian supported resumption of visitation, so why did it never occur?
Visitation for Jing and Tristram certainly would have occurred had Gail Hiler disclosed that Tristram was no
longer living in her home. Indeed, Jing probably would have then and there won outright custody of her son. The
refusal of Gail Hiler to disclose this cogent information to the various courts dealing with custody and visitation applications by this mother, including appellate courts, and to the law guardian, and to the mother herself was, and is, a crime; a crime far greater than anything Jing Kelly has ever done wrong.
Robert F. Wayburn
The Advocate
Richard Blassberg
Silence Of The Lambs
Through the millennia of recorded history certain truths remain unchanged.Those of us fortunate to hang around long enough get to observe that fact repeatedly, human nature being what it is. As an early adolescent I can still clearly recall Senator Joseph McCarthy of Wisconsin, who over a relatively few years in Washington managed to destroy the lives of scores of innocent Americans, as he stepped on them in his quest to reach ever greater heights of power and authority. For some time he managed to very effectively ward off resistance and criticism holding himself out as a super-patriot, the ultimate defender of American freedom from the “worldwide threat of Soviet Communism.” None dared question him, for fear of being labeled “Pink,” a Communist sympathizer, or worse, “Red,” a Communist.
Numerous writers, actors, directors, and other creative and intelligent individuals were “blacklisted” and
virtually pushed into exile by the mere pointing of his finger. He had talented ambitious assistants. Young attorneys Roy Cohn, seated on his right, and Robert F. Kennedy, on his left as he skewered one witness after another who he called before his Senate Internal Security Subcommittee.
And, he had collaborators, such as columnist Jack Anderson, a journalist, who, if for no other reason than the First Amendment, should have known better, nevertheless supplied the names of other writers and numerous
individuals in communication and government to him for harassment and defamation. His essential target
was the Liberal Establishment associated with Franklin Roosevelt’s “New Deal Administration,” and, even the
United States Army was not immune from his attack.
A true demagogue, McCarthy played upon the fears and malleability of the masses, whipping up emotions
with respect to Communism. Few possessed the courage to stand up to his attack. Fewer still, the courage
to identify him, and challenge what he stood for. More than fifty years later I still remember, and admire, those who did, most notably United States Army Attorney Joseph Welch, best remembered for his declaration, “Have you no sense of decency Sir?” And, of course, my personal hero, Edward R. Murrow, whose commentary on McCarthy and his methods gave impetus to the Senator’s ultimate fall from power.
Here in Westchester we, too, experienced such a demagogue, someone in a position of virtually unlimited power to destroy the lives of innocent persons, if for no other purpose than self-promotion, and self-perpetuation.
That person was former District Attorney Jeanine Pirro. Under her tyrannical, twelve-year regime, the egregious operations of which are just now coming to public awareness as the result of Appellate Court decisions in cases
such as Anthony DiSimone, scores of innocent individuals were maliciously and knowingly prosecuted and imprisoned.
Silence Of The Lambs During those twelve years one individual consistently stood up to her tyranny, her prosecutorial misconduct. Pace University Law Professor Bennett Gershman, highly respected former prosecutor, and author of Prosecutorial Misconduct, the ‘bible’ of the profession went so far as to issue a complaint to the Grievance Committee regarding her actions in the Eddie Cordero, Jr. case, after she publicly revealed the defendant’s HIV status. And, perhaps as fate may have intended, a student of Gershman, authored the book, The Jeanine Machine, in 2002, revealing in detail the horrific truth about Mrs. Pirro’s political and professional conspiracies and lies, separating the image from the reality.
Save for those two critics, and former Bronx Assistant District Attorney Tony Castro, who possessed the courage and the moral conviction to join the effort by leaving the comfort, and security of his fourteen-year position to challenge, and nearly overthrow her in 2001, where the Hell were those who should have been there on behalf of us all?
Where, indeed, was the Westchester Chapter of the American Civil Liberties Union? Where were they as Mrs.
Pirro trampled every one of the Constitutional Rights of countless innocent, often defenseless, individuals; persons
such as Jing and Tristram Kelly? Where are they, even now? When asked why they have never spoken out,
not even in the face of unprecedented Civil Rights violations, and prosecutorial misconduct of criminal proportions, the nauseating excuse offered by the Director was that “policy decisions are made in New York.”
Where, too, was the Westchester Criminal Defense Bar? They, more than anyone else, going toe-to-toe with
Pirro’s Office, experiencing first-hand the lies, the suborned perjury, the concealed Brady material, the turned
witnesses, the missing, and tampered with, evidence, had an obligation, not only to their clients, but to all of us, to
expose, and to inform the Grievance Committee of the Appellate Division, State Supreme Court, of the abuses of power, and the extreme violations of Constitutional Rights that were the very essence of Pirro’s operations.
Sure, now that she is likely the subject of a sealed federal indictment, now that her “Reign of Terror” is over, and furthermore she has embarrassed and humiliated herself in the political arena, __however, not without leaving the
lives of perhaps hundreds of innocent defendant-victims, locked away in prison, and their families and friends grieving,__now those who should have stood up on their hind legs long ago, instead of criticizing those who did, saying they were “over the top,” now they will slowly crawl out of the woodwork to assure everyone they were really working against her all along. To those who stood silent as some of us stood firm, I now say BAH.
Better yet, BAA!
Richard Blassberg
Silence Of The Lambs
Through the millennia of recorded history certain truths remain unchanged.Those of us fortunate to hang around long enough get to observe that fact repeatedly, human nature being what it is. As an early adolescent I can still clearly recall Senator Joseph McCarthy of Wisconsin, who over a relatively few years in Washington managed to destroy the lives of scores of innocent Americans, as he stepped on them in his quest to reach ever greater heights of power and authority. For some time he managed to very effectively ward off resistance and criticism holding himself out as a super-patriot, the ultimate defender of American freedom from the “worldwide threat of Soviet Communism.” None dared question him, for fear of being labeled “Pink,” a Communist sympathizer, or worse, “Red,” a Communist.
Numerous writers, actors, directors, and other creative and intelligent individuals were “blacklisted” and
virtually pushed into exile by the mere pointing of his finger. He had talented ambitious assistants. Young attorneys Roy Cohn, seated on his right, and Robert F. Kennedy, on his left as he skewered one witness after another who he called before his Senate Internal Security Subcommittee.
And, he had collaborators, such as columnist Jack Anderson, a journalist, who, if for no other reason than the First Amendment, should have known better, nevertheless supplied the names of other writers and numerous
individuals in communication and government to him for harassment and defamation. His essential target
was the Liberal Establishment associated with Franklin Roosevelt’s “New Deal Administration,” and, even the
United States Army was not immune from his attack.
A true demagogue, McCarthy played upon the fears and malleability of the masses, whipping up emotions
with respect to Communism. Few possessed the courage to stand up to his attack. Fewer still, the courage
to identify him, and challenge what he stood for. More than fifty years later I still remember, and admire, those who did, most notably United States Army Attorney Joseph Welch, best remembered for his declaration, “Have you no sense of decency Sir?” And, of course, my personal hero, Edward R. Murrow, whose commentary on McCarthy and his methods gave impetus to the Senator’s ultimate fall from power.
Here in Westchester we, too, experienced such a demagogue, someone in a position of virtually unlimited power to destroy the lives of innocent persons, if for no other purpose than self-promotion, and self-perpetuation.
That person was former District Attorney Jeanine Pirro. Under her tyrannical, twelve-year regime, the egregious operations of which are just now coming to public awareness as the result of Appellate Court decisions in cases
such as Anthony DiSimone, scores of innocent individuals were maliciously and knowingly prosecuted and imprisoned.
Silence Of The Lambs During those twelve years one individual consistently stood up to her tyranny, her prosecutorial misconduct. Pace University Law Professor Bennett Gershman, highly respected former prosecutor, and author of Prosecutorial Misconduct, the ‘bible’ of the profession went so far as to issue a complaint to the Grievance Committee regarding her actions in the Eddie Cordero, Jr. case, after she publicly revealed the defendant’s HIV status. And, perhaps as fate may have intended, a student of Gershman, authored the book, The Jeanine Machine, in 2002, revealing in detail the horrific truth about Mrs. Pirro’s political and professional conspiracies and lies, separating the image from the reality.
Save for those two critics, and former Bronx Assistant District Attorney Tony Castro, who possessed the courage and the moral conviction to join the effort by leaving the comfort, and security of his fourteen-year position to challenge, and nearly overthrow her in 2001, where the Hell were those who should have been there on behalf of us all?
Where, indeed, was the Westchester Chapter of the American Civil Liberties Union? Where were they as Mrs.
Pirro trampled every one of the Constitutional Rights of countless innocent, often defenseless, individuals; persons
such as Jing and Tristram Kelly? Where are they, even now? When asked why they have never spoken out,
not even in the face of unprecedented Civil Rights violations, and prosecutorial misconduct of criminal proportions, the nauseating excuse offered by the Director was that “policy decisions are made in New York.”
Where, too, was the Westchester Criminal Defense Bar? They, more than anyone else, going toe-to-toe with
Pirro’s Office, experiencing first-hand the lies, the suborned perjury, the concealed Brady material, the turned
witnesses, the missing, and tampered with, evidence, had an obligation, not only to their clients, but to all of us, to
expose, and to inform the Grievance Committee of the Appellate Division, State Supreme Court, of the abuses of power, and the extreme violations of Constitutional Rights that were the very essence of Pirro’s operations.
Sure, now that she is likely the subject of a sealed federal indictment, now that her “Reign of Terror” is over, and furthermore she has embarrassed and humiliated herself in the political arena, __however, not without leaving the
lives of perhaps hundreds of innocent defendant-victims, locked away in prison, and their families and friends grieving,__now those who should have stood up on their hind legs long ago, instead of criticizing those who did, saying they were “over the top,” now they will slowly crawl out of the woodwork to assure everyone they were really working against her all along. To those who stood silent as some of us stood firm, I now say BAH.
Better yet, BAA!
In Our Opinion:
Kudos To Mayor Delfino
The Westchester Guardian applauds the twenty-five month effort by White Plains Mayor Joseph Delfino and his administration to bring a VERIZON NEW YORK cable franchise option to the 22,000 households, of Westchester’s county seat. Last Wednesday’s preliminary public hearing, following the Mayor’s State of the City Address, was the first of several anticipated in response to the communication giant’s application currently before City government, thus beginning the final stages of the approval process.
Cablevision, best known to most Westchester residents for their NEWS12 Cable News Network, has enjoyed a virtual monopoly franchise throughout the County, conferred several years ago by the Office of the County
Executive. Their interests in the current Verizon application are represented by the law firm of DelBello, Donellan, and Weingarten, a partnership closely connected with the current County Executive.
Attorney Mark Weingarten advised The Guardian that his client, Cablevision, “acknowledges that there is going to be competition.” He stressed, however, that Cablevision, “merely expects that the City of White Plains will live up to its obligation to set up a level playing field,” in their negotiations and arrangements with each provider.
We heartily agree with Mayor Delfino who told us, “There’s no question that competition makes for a healthier marketplace.” Clearly offering consumers another option with respect to their cable, television, internet, and telephone communication needs will create lively competition and likely drive down the cost of services. And, that would be a good thing for Westchester residents, already facing the highest property taxes, and cost of living in the nation.
As importantly, We believe that the status quo, under which the Dolan Family, owners of Cablevision, have enjoyed a virtual monopoly, particularly as it pertains to the dissemination of news is not in the best interest
of County residents. For one thing, under FCC Rules cable television is not subject to any regulations whatsoever as relates to the “Fairness Doctrine,” traditionally imposed upon non-cable network broadcasters.
The content of newscasts may be as slanted, or as filtered, as the provider wishes. The Dolans have shown no reluctance to limit access to viewers sought by individuals and corporations whose interests may run counter
to their own.
We would remind our readers of the refusal by Cablevision, owner of Madison Square Garden, and the New York Knicks, to permit the airing of commercials by the Nets, and contractors, proposing the construction
of another arena on Manhattan’s West Side within the last two years. And, closer to home, observers of the operations of County Government have been concerned for several years regarding the awarding of a no-bid $23.5 million contract by the present County Executive’s Office to Lightpath, a wholly owned subsidiary of Cablevision, in March of 2000 for the establishment of a county-wide communications system. Its not unreasonable to assume that a “gift” of that magnitude will certainly influence the nature of information reported
by the recipient with regard to the activities and positions of the donor, the County Executive.W e believe that cozy arrangement had Deputy County Executive Larry Schwartz’ fingerprints all over it.
Once again, We congratulate Mayor Delfino, and express our hopes that other municipalities throughout Westchester will follow White Plains in opening up the opportunity to providers other than Cablevision
to service their residents’ communication needs. Competition, after all, is the American Way, ensuring the best service at the lowest possible price.
Kudos To Mayor Delfino
The Westchester Guardian applauds the twenty-five month effort by White Plains Mayor Joseph Delfino and his administration to bring a VERIZON NEW YORK cable franchise option to the 22,000 households, of Westchester’s county seat. Last Wednesday’s preliminary public hearing, following the Mayor’s State of the City Address, was the first of several anticipated in response to the communication giant’s application currently before City government, thus beginning the final stages of the approval process.
Cablevision, best known to most Westchester residents for their NEWS12 Cable News Network, has enjoyed a virtual monopoly franchise throughout the County, conferred several years ago by the Office of the County
Executive. Their interests in the current Verizon application are represented by the law firm of DelBello, Donellan, and Weingarten, a partnership closely connected with the current County Executive.
Attorney Mark Weingarten advised The Guardian that his client, Cablevision, “acknowledges that there is going to be competition.” He stressed, however, that Cablevision, “merely expects that the City of White Plains will live up to its obligation to set up a level playing field,” in their negotiations and arrangements with each provider.
We heartily agree with Mayor Delfino who told us, “There’s no question that competition makes for a healthier marketplace.” Clearly offering consumers another option with respect to their cable, television, internet, and telephone communication needs will create lively competition and likely drive down the cost of services. And, that would be a good thing for Westchester residents, already facing the highest property taxes, and cost of living in the nation.
As importantly, We believe that the status quo, under which the Dolan Family, owners of Cablevision, have enjoyed a virtual monopoly, particularly as it pertains to the dissemination of news is not in the best interest
of County residents. For one thing, under FCC Rules cable television is not subject to any regulations whatsoever as relates to the “Fairness Doctrine,” traditionally imposed upon non-cable network broadcasters.
The content of newscasts may be as slanted, or as filtered, as the provider wishes. The Dolans have shown no reluctance to limit access to viewers sought by individuals and corporations whose interests may run counter
to their own.
We would remind our readers of the refusal by Cablevision, owner of Madison Square Garden, and the New York Knicks, to permit the airing of commercials by the Nets, and contractors, proposing the construction
of another arena on Manhattan’s West Side within the last two years. And, closer to home, observers of the operations of County Government have been concerned for several years regarding the awarding of a no-bid $23.5 million contract by the present County Executive’s Office to Lightpath, a wholly owned subsidiary of Cablevision, in March of 2000 for the establishment of a county-wide communications system. Its not unreasonable to assume that a “gift” of that magnitude will certainly influence the nature of information reported
by the recipient with regard to the activities and positions of the donor, the County Executive.W e believe that cozy arrangement had Deputy County Executive Larry Schwartz’ fingerprints all over it.
Once again, We congratulate Mayor Delfino, and express our hopes that other municipalities throughout Westchester will follow White Plains in opening up the opportunity to providers other than Cablevision
to service their residents’ communication needs. Competition, after all, is the American Way, ensuring the best service at the lowest possible price.
Yonkers City Council Majority Leader McDow’s Proposal To Strengthen Civilian Police Complaint Review Board Long Overdue Many Outstanding Cases of Police Brutality Still Unresolved
Yonkers City Council Majority Leader Patricia McDow last week called for a renewed effort by that body to move her long-standing legislative proposal to expand the City’s Civilian Police Complaint Review Board out of committee and up for a vote.
The proposal would expand the present seven-member board, consisting mostly of Yonkers Police officials, to thirteen members.
Seven members would be chosen, one each, by each of the seven City Council members, four would be appointed by the Mayor, and two by the Police Commissioner.
The Westchester Guardian, in a cover story on September 21, 2006, headlined, “Mother 72, Daughter 49,
Charge Yonkers Police Brutality,” set in motion a series of events which began with a Public “Speak-Out” session sponsored by the Yonkers Chapter of the NAACP under President Karen Edmonson, and Chapter Attorney Michael Sussman, at the Riverfront Library, two days later, and the resignation of then-Yonkers Police Commissioner Robert Taggart, four days after that. Scores of citizens rose to their feet, many of them middle-aged, to describe beatings and brutality meted out by Yonkers Police Officers in recent years.
Also present at the gathering, which went on for more than three hours, and drew more than 100 persons, were Civil Rights Activists Attorneys Debra Cohen and Randolph McLaughlin, accompanied by several Pace University Law School students who interviewed complainants many of whom had never previously come forward publicly. Last week Cohen appeared on Cablevision NEWS12 to lend support to McDow’s renewed call for the passage of her proposed legislation.
McDow told The Guardian, “We must encourage citizens to come forward, who are intimidated and unwilling
to under the present system.” She explained that with an expanded Review Board, one that was more representative of, and sensitive to, the community, incidents involving mishandling, and possible brutality by police will be more likely to be fairly and promptly dealt with.There are currently numerous unresolved cases involving allegations of Yonkers Police brutality.
One particularly disturbing case, previously widely reported, involves a number of Yonkers Police Officers who are alleged to have beaten a civilian to within an inch of his life, in a location outside of Yonkers.
McDow’s proposal is comprehensive and well thought out, and perhaps will pick up co-sponsorship by Council President Chuck Lesnick.
Tina Bostwick, who together with her daughter Mary, were the victims of Yonkers Police brutality, reported by The Guardian back in September, when asked about her feelings regarding the failure of the City Council to move forward with McDow’s proposed legislation, remarked.
“I am horriffied by the delay given that my daughter and I have endured two years of hell, mentally and physically, because no one in Yonkers City government has been willing to rectify what was done to us simply because we came to the aid of two young boys, and called for the police.”
Yonkers City Council Majority Leader Patricia McDow last week called for a renewed effort by that body to move her long-standing legislative proposal to expand the City’s Civilian Police Complaint Review Board out of committee and up for a vote.
The proposal would expand the present seven-member board, consisting mostly of Yonkers Police officials, to thirteen members.
Seven members would be chosen, one each, by each of the seven City Council members, four would be appointed by the Mayor, and two by the Police Commissioner.
The Westchester Guardian, in a cover story on September 21, 2006, headlined, “Mother 72, Daughter 49,
Charge Yonkers Police Brutality,” set in motion a series of events which began with a Public “Speak-Out” session sponsored by the Yonkers Chapter of the NAACP under President Karen Edmonson, and Chapter Attorney Michael Sussman, at the Riverfront Library, two days later, and the resignation of then-Yonkers Police Commissioner Robert Taggart, four days after that. Scores of citizens rose to their feet, many of them middle-aged, to describe beatings and brutality meted out by Yonkers Police Officers in recent years.
Also present at the gathering, which went on for more than three hours, and drew more than 100 persons, were Civil Rights Activists Attorneys Debra Cohen and Randolph McLaughlin, accompanied by several Pace University Law School students who interviewed complainants many of whom had never previously come forward publicly. Last week Cohen appeared on Cablevision NEWS12 to lend support to McDow’s renewed call for the passage of her proposed legislation.
McDow told The Guardian, “We must encourage citizens to come forward, who are intimidated and unwilling
to under the present system.” She explained that with an expanded Review Board, one that was more representative of, and sensitive to, the community, incidents involving mishandling, and possible brutality by police will be more likely to be fairly and promptly dealt with.There are currently numerous unresolved cases involving allegations of Yonkers Police brutality.
One particularly disturbing case, previously widely reported, involves a number of Yonkers Police Officers who are alleged to have beaten a civilian to within an inch of his life, in a location outside of Yonkers.
McDow’s proposal is comprehensive and well thought out, and perhaps will pick up co-sponsorship by Council President Chuck Lesnick.
Tina Bostwick, who together with her daughter Mary, were the victims of Yonkers Police brutality, reported by The Guardian back in September, when asked about her feelings regarding the failure of the City Council to move forward with McDow’s proposed legislation, remarked.
“I am horriffied by the delay given that my daughter and I have endured two years of hell, mentally and physically, because no one in Yonkers City government has been willing to rectify what was done to us simply because we came to the aid of two young boys, and called for the police.”
Judge Charles L. Brieant Overturns Conviction of Former Correction Officer Paul Cote.
A Great Judge Delivers, A Courageous Decision.
On Tuesday, April 3rd, United States Federal District Court Judge Charles L. Brieant affirmed what seasoned court watchers have known about him for many years as he, once again, summoned the courage and the wisdom with which he has graced the Westchester Community for some thirty-six years, handingdown a decision the like of which is all too seldom seen.
Paul Cote, former Westchester County Correction Officer, convicted by a jury on September 20, 2006, in Brieant’s Court, on a single-count indictment, charging violation of 18 U.S.C. Section 242, in the deprivation of Zoran Teodorovic’s right to liberty without due process of law, while acting under color of law. Mr. Cote, who had been tried and convicted of Assault in the Second Degree, in Westchester County Court, in July 2001, serving three months in jail, having granted the United States Attorney’s Office a waiver of the applicable five-year Statute of Limitations, had been once again tried for the same transaction, exposed in every Constitutional sense to Double Jeopardy, and convicted.
Cote’s prior trial, and conviction were hopefully, truly unknown to the federal jury. Nevertheless, he was being tried by the federal government based on the same set of facts, six years after the occurrence, and was found guilty. The incident, which took place at the Westchester County Jail October 10, 2000, involved a homeless, belligerent inmate, Zoran Teodorovic, a fellow correction officer, now Corrections Sergeant John Mark Reimer, and Cote. Despite the fact that the Defendant’s involvement did not occur until after Officer Reimer, responding to a punch in the face, had bear-hugged the inmate, swinging him through a six-foot radius arc, and slamming his head to the concrete floor of G-1 cellblock, causing massive cerebral injury, charges resulting from Teodorovic’s ultimate death, some 14 months later, were lodged against Cote, using Reimer as the chief Prosecution witness.
Charged with “striking, kicking, and stomping” the inmate, Cote had rushed to the aid of fellow officer Reimer, as per approved protocols and regulations. Reimer, however, had gone to DA Jeanine Pirro first, and, as so often has been the case, cut his deal with the Devil. At oral arguments pursuant to Mr. Cote’s appeal of his conviction under Federal Rules 29(c) and 33, the issue of the relationship between federal prosecutors, and the Westchester County District Attorney’s Office, specifically former ADA Robert Neary, was brought up by Defense Counsel Bennett Epstein, drawing a response from Assistant United States Attorney Cynthia Dunne that her office merely monitored the State proceedings. Epstein strongly suggested that there had been significant cooperation and choreography between the two Offices.
Under Rule 29, federal judges are granted the judge-ordered “ judgment of acquittal” replacing the former “directed verdict,” previously returned by the jury under directions from the judge. Coming directly from the judge, in this case Judge Charles L. Brieant, a finding for the Defendant under Rule 29 is an affirmative determi-nation that the Prosecution had failed to carry its burden of proof.
Rule 33, on the other hand, gives a trial court considerable discretion to set aside a jury verdict, that it deems a “miscarriage of justice,” and order a new trial. The language of the federal rule shows sensitivity to the historic role of the jury, speaking of the need by judges to avoid “wholly usurping” the jury’s responsibility of resolving conflicting evidence, and assessing the credibility of witnesses. The rule speaks of the need to find “exceptional circumstances” before a judge may “intrude upon the jury function.”
Having presided over the two-week trial, Judge Brieant concluded: “ The verdict was not fairly based on the evidence presented at trial, and was not in proper conformity with the Indictment. The Court also concludes, based on its direct observation of the entire trial, that the interests of Justice were not served by the verdict, and that if on appeal Defendant is deemed not entitled to a judgment of acquittal, in contrast to this Court’s view, then he is at least entitled to a new trial.”
Judge Brieant further ruled: “The motion for a judgment of acquittal under Rule 29(c) is granted. The motion for a new trial under Rule 33 is conditionally granted if the judgment of acquittal is reversed. The judgment is stayed pending Appellate finality.”