Opinion
13525/96.
Decided September 23, 2005.
The defendant moves to vacate the judgment on the ground that he has newly discovered evidence that he was selectively prosecuted in violation of the Equal Protection Clause of the constitution.
In deciding this motion, the court has considered the motion papers, the defendant's memorandum of law, the defendant's reply memorandum of law and letters dated July 5, July 12 and August 1, 2005, the affirmation in opposition, the government's letters July 7, July 20 and July 26, 2005, oral arguments and the court file. The court has listened to the entire audio taped conversation between the trial prosecutor Assistant District Attorney (ADA) John O'Mara and Christopher Ketcham, a news reporter and affiant on behalf of the defendant.
While both sides submit selective portions of the conversation, the court finds some of the portions not submitted by either party to be of major significance. Both sides have acknowledged that they listened to the entire tape.
Background
The facts underlying the defendant's conviction were fully set forth in the Court of Appeals decision in this case and familiarity with the facts is assumed.
People v. O'Hara, 96 NY2d 378 (2001).
On July 1, 1999, after the defendant's third trial, the defendant was convicted of registering to vote (in order to run for public office in the election district) from 553 47th Street, Brooklyn, New York, a location that the jury determined was not his residence because the location was an uninhabitable apartment.
The defendant submits on this motion a computer data information sheet from Nexis/Lexus allegedly showing that an ADA in the Brooklyn District Attorney's office voted in Queens during the elections of 2000, 2001, 2002 and 2003. It is alleged that this ADA does not reside in Queens and, therefore, should have been or should be prosecuted for Election Law violations. The failure to so prosecute, it is argued, shows that in 1996 Mr. O'Hara was unconstitutionally selectively prosecuted.
During the pendency of this motion, the District Attorney of Queens County investigated the matter. The Queens County District Attorney's office found that no crime was committed because the ADA has "legitimate, significant and continuing attachments" to his parents' Queens address.
NYLJ June 20, 2005 at 1, article entitled "Brooklyn Prosecutor Cleared Over Voting Address" by Tom Perrotta.
The defendant also submits a December 2004 Harper magazine article and an affidavit from the author of that article, one Christopher Ketcham. The magazine article describes Mr. O'Hara as a courageous individual fighting against the Brooklyn Democratic Party reform machine, who was punished and prosecuted for his audacity to fight the political machine. In this article, Mr. Ketcham states that District Attorney Hynes registered to vote, for a brief period of time, using the District Attorney's office as his voting residence. It is important to note that during the 2003 taped conversation between Mr. Ketcham and ADA O'Mara, Mr. Ketcham was informed that the registration card was a forgery, and that the Board of Elections had determined that the registration card was a forgery. No evidence has been submitted in this proceeding nor was any evidence adduced in the Harper magazine article, that the registration card was anything but a forgery.
This fact is cited by defense counsel in footnote 1 pg. 5 of counsel's letter dated August 1, 2005.
Although current defense counsel listened to the tape, he alludes to this alleged fact without submitting any proof.
In Mr. Ketcham's affidavit in support of this motion, he alleges four facts that he claims indicates invidious discriminatory prosecution of Mr. O'Hara.
The first claim is based on an alleged conversation in June 2003 between Mr. Ketcham and a person described as "Officer Christopher G. Cincotta." It is alleged that Officer Cincotta admitted to conducting surveillance of Mr. O'Hara during 1996 and that police involvement started because of former Assembly person Brennan's (the political opponent of the defendant) involvement in the case.
There is nothing in the affidavit connecting the alleged surveillance to the prosecution in this case. In the July 2003 taped conversation, Mr. Ketcham was told by the ADA that the surveillance was the result of a police investigation regarding allegations (never substantiated) that Mr. O'Hara committed a different crime. The nature of the unrelated crime was not revealed to Mr. Ketcham because the ADA claimed the records were protected by law (presumably CPL 160.50). No evidence is submitted to disprove this claim.
Further, the affidavit does not set forth the basis of knowledge of Officer Cincotta for his claim that Assembly person Brennan was the instigator of the surveillance. The tape does indicate that there was an alleged assault committed against a worker for the Assembly person and that it was suspected that the defendant was involved in the incident. Whether the surveillance was the result of this matter is unknown. In any event the tape makes clear that, in spite of Mr. O'Hara's alleged participation in the crime, the Kings County District Attorney did not charge Mr. O'Hara with any crime.
The second allegation is based on an alleged telephone conversation between Mr. Ketcham and an unidentified "former staff(er) to Assemblyman Brennan." It is alleged that this unidentified person stated that he " believed " that Mr. O'Hara was prosecuted by the Kings County District Attorney's office because he was "an irritant."
This allegation does not set forth the underlying facts that led to this unidentified "former staffer['s]" conclusion. The paragraph contains only conclusory allegations unsubstantiated by any facts. It is pure speculation from which a court cannot make an independent factual determination.
The third allegation in Mr. Ketcham's affidavit is based on a conversation between Mr. Ketcham and a Kathleen Vetere. The time and place of this conversation are not set forth. It is alleged that Ms. Vetere had a conversation in 1994 with Assembly person Brennan's counsel who stated that they "were not going to stop pursuing this guy (O'Hara) until the day we see him disbarred. Not only is this man not getting on the ballot. [Sic] You'll live to see him disbarred."
This alleged conversation, if true, indicates that there was animosity between O'Hara and his political rival. The conversation is unconnected to the Kings County District Attorney and does not, in any way, impact on the allegation that the government conducted an unconstitutional prosecution unless the court speculates that counsel for Assembly person Brennan somehow influenced the prosecution in this case. There is not a scintilla of direct or inferential evidence (except that Assembly person Brennan was informed of the guilty verdict) that Assembly person Brennan influenced the decision to prosecute Mr. O'Hara.
It is noted that Mr. O'Hara was disbarred as result of his conviction in this case.
The fourth allegation in Mr. Ketcham's affidavit is based on a conversation in July 2003 between himself and ADA O'Mara. Mr. Ketcham's main claim is that ADA O'Mara stated that this prosecution was based on Mr. O'Hara's "particular egregious conduct." Mr. Ketcham then quotes another statement made by ADA O'Mara to the effect that "[h]e (O'Hara) was not deterred by the civil actions against him." Mr. Ketcham avers that ADA O'Mara telephoned Assembly person Brennan and informed him that the defendant was convicted.
This court's recollection of the tape indicates that someone other than ADA O'Mara telephoned the Assembly person.
The allegation that this was "egregious conduct" supports the government's contention that the selection of Mr. O'Hara for prosecution was not based on unconstitutional factors but on appropriate legal factors. The flagrancy of the conduct is a proper reason for singling out a person for prosecution. It is noted that putting the phrase "egregious conduct," in the context of the sentences where it was said, clearly indicates that the phrase refers to the fact that the apartment from which the defendant registered to vote was an uninhabitable living space due to the rehabilitation work that was being done at the time the defendant allegedly moved into the apartment and the fact that the owner of the building denied ever renting the apartment to Mr. O'Hara. The owner was told by Mr. O'Hara that he was receiving mail at the address.
In considering whom to prosecute, a government agent may properly consider that civil actions did not deter the defendant from his criminal activity. The fact that a person was told and had an opportunity to discontinue the illegal behavior but was not deterred by such non-criminal proceedings is a constitutionally valid factor in determining whom to prosecute.
Not mentioned in Mr. Ketcham's affidavit, but contained in the tape recording of that conversation, is ADA O'Mara's statement that the prosecution of this case was commenced only after counsel for the Board Elections asked the Kings County District Attorney to commence criminal proceedings. There is no allegation in the moving papers or in any magazine article that the Board of Elections' request was motivated by unconstitutional criteria.
The defense counsel admits to having listened to the entire tape.
It is also proper to take into account the request from another executive branch of government, especially when that agency is delegated the responsibility for administrating the Election Law.
Procedural Bars
The People argue that the motion is deficient because it is based on unsworn material and that the only affidavit submitted is not based on personal knowledge of the underlying facts.
CPL 440.30 (4) (b) permits a court to deny a motion to vacate a judgment without a hearing if the moving papers do not contain sworn allegations as to all essential facts. The affidavit must be from a person having actual or personal knowledge of the facts at issue. The defendant fails to submit an affidavit from "Officer Cincatto," from the unidentified staffer from Assembly person Brennan's office or from Kathleen Vetere. The computer printout and the Harper magazine article are also not valid substitutes for sworn allegations of fact. The court does note that the writer of the Harper magazine article has given an affidavit about some of the factual claims in the article. Most of the facts in the article are not part of Mr. Ketcham's affidavit.
People v. Wells, 265 AD2d 589, 589 (1999); People v. Lake, 213 AD2d 494, 495-496 (1995); People v. Lawson, 191 AD2d 514, 515 (1993); see also People v. Satterfield, 66 NY2d 796, 799 (1985); People v. Session, 34 NY2d 254, 256 (1974).
People v. Pan, 245 AD2d 149, 150 (1997); People v. Taylor, 211 AD2d 603 (1995).
The motion based on those claims is denied for lack of an affidavit from a person with personal knowledge of the facts and for the reasons stated above.
It is noted that the prosecution has also not submitted any affidavit from a person with actual knowledge of the facts. There is no affidavit from ADA O'Mara. Especially disturbing is the fact that there is no affidavit from a person with actual knowledge as to the circumstances of the commencement of the action. It is clear to this court, based on the taped conversation, that ADA O'Mara does not have actual knowledge regarding the circumstances of the commencement of this criminal proceeding. Not satisfactorily explained is the reason a homicide ADA was chosen to prosecute a low level felony. The failure of the People to supply the court with actual information regarding Assembly person Brennan's involvement in this case is extremely troubling.
There was a reason given in the audio tape, but the reason is totally unsatisfactory.
Nonetheless, the court is required to decide the motion based on the partial information supplied by both parties.
Selective Prosecution
A prosecutor generally has wide latitude in selecting whom to prosecute for a crime. When a court reviews a selective prosecution claim, it is reviewing an allegation that the executive branch of government has or is misusing its constitutionally delegated power.
Wayte v. United States, 470 US 598, 607 (1985); People v. Zimmer, 51 NY2d 390, 394 (1980).
United States v. Armstrong, 517 US 456, 464 (1996).
As with any other government official, there exists a presumption of regularity that the prosecutorial agency performs its duty in accordance with the constitution and law. Under federal rules, in discriminatory prosecution claims, the defendant must overcome this presumption by "clear evidence that the prosecutorial decision was not properly discharged." Under New York law, in a selective prosecution allegation, the defendant has a "heavy burden" of overcoming the presumption that the prosecution has not violated the law.
Id. at 464; People v. Dominque, 90 NY2d 880, 881 (1997).
Armstrong, 517 US at 464.
People v. Blount, 90 NY2d 998, 999 (1997); People v. Goodman, 31 NY2d 262, (1972). In ordinary cases involving the presumption of regularity, New York describes the defendant's burden of overcoming the presumption of regularity as requiring "substantial evidence." ( People v. Foster, 1 NY3d 44, 48 [2003]; People v. Harris, 61 NY2d 9, 16 [1983]).
The judiciary is generally ill-suited to second-guess the executive branch's decision to prosecute a defendant. This is true because there are many factors that go into the decision as to whom to prosecute. In Wayte, the United States Supreme Court described some of the legitimate factors to be considered in a discriminatory prosecution claim:
Wayte, 470 US at 607.
Id. at 607-608.
"Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan . . . Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute."
Also mentioned as legitimate factors are budgetary and personnel allocation concerns.
New York has similarly delineated the same factors as legitimate considerations.
Mtr. 303 West 42nd v. Klein, 46 NY2d 686, 694 (1979); People v. Utica Daw's Drug Co., 16 AD2d 12, 20-21 (1962).
Thus, the mere fact of selectivity is not, in and of itself, enough to show a constitutional violation. In order to establish illegal prosecutorial selectivity, the defendant must establish that (1) there are persons similarly situated to him or her that the government has declined to prosecute and (2) that the selectivity is based on race, religion or some other arbitrary classification.
Oyler v. Boles, 368 US 448, 456 (1962); People v. Acme Markets Inc., 37 NY2d 326, 330-331 (1975).
Wayte, 470 US at 608; Oyler, 368 US at 456; Blount, 90 NY2d at 999; Mtr of 303 W 42nd, 46 NY2d at 693; Acme Markets Inc., 37 NY2d at 330.
A prosecutorial agency may legitimately consider in selecting an individual for prosecution, such person's prominence in the community, his notoriety or his public status. This is true because a prosecution of a prominent figure would have a more deterrent effect on the public than the prosecution of an unknown individual.
People v. Sharpton, 146 Misc 2d 684, 687 (1990); United States v. Hastings, 126 F3d 310, 315 (1997); United States v. Saade, 652 F2d 1126, 1136 n14 (1981); United States v. Catlett, 584 F2d 864, 868 (1978); United States v. Peskin, 527 F2d 71, 86 (1975).
Id.
In this case, the court has on numerous occasions requested that the defendant supply the court with the name and circumstances of any person similarly situated as the defendant. The defendant has failed to supply any such names.
The cases and Law Journal references cited in defendant's July 5, 2005 letter are not person's similarly situated.
The ADA named in the computer printout is not a person similarly situated to the defendant. There is no allegation that during the years that this crime was committed the ADA registered at a false address. The ADA did not register at an uninhabitable location. The Queens County District Attorney's office found that the ADA had a long-standing nexus with his parents' home.
The court is unaware of any situation where the People were requested by the Board of Elections to criminally prosecute any person and the government failed to do so. There is no evidence that there is another public figure against whom numerous civil actions were commenced, alleging the variety of criminal violations of the Election Law as was Mr. O'Hara. There has been no evidence submitted that there exists a person who registered to vote using an uninhabitable apartment.
The defendant has failed to establish a prima facie case that there existed, at the time that he was prosecuted, a person who was similarly situated.
The defendant has also failed to establish a prima facie case that his selection was based on improper criteria. In fact, the defendant has shown that the factors used by the government in deciding to prosecute him were valid and neutral considerations. The "egregious conduct" of the defendant and the fact that numerous civil actions were commenced giving him notice of his improper conduct that went unheeded are proper and neutral factors.
The motion to vacate the judgment is denied.
This constitutes the decision and order of the court.