People v. Castaldo

• Decision Date: 25 May 2015
• Docket Number: 01/2015
• Citation: 12 N.Y.S.3d 789,2015 N.Y. Slip Op. 25178,48 Misc.3d 996
• Parties: The PEOPLE of the State of New York, v. Patrick CASTALDO, Defendant.
• Court: New York Supreme Court

48 Misc.3d 996

12 N.Y.S.3d 789

2015 N.Y. Slip Op. 25178

The PEOPLE of the State of New York

v.Patrick CASTALDO, Defendant.

01/2015

Supreme Court, Putnam County, New York.

May 25, 2015.

Adam B. Levy, District Attorney of Putnam County, Chana Krauss, Chief Assistant District Attorney, Carmel, for the People.

The Quinn Law Firm, PLLC, Andrew C. Quinn, Esq., White Plains, Attorneys for Defendant.

Opinion

ALAN SCHEINKMAN, J.

Defendant Patrick Castaldo moves, pursuant to County Law Section 701, for the removal of the Putnam County District Attorney and for the appointment of a Special District Attorney to conduct the prosecution of this criminal action. The application is opposed by the Putnam County District Attorney.

Defendant stands charged, by Indictment 1/2015 dated February 6, 2015, with one count of Offering a False Instrument for Filing in the First Degree in violation of Penal Law, Section 175.35 (a Class E felony); one count of Attempted Assault in the Third Degree in violation of Penal Law, Section 110.00/120.00(1) (a Class B misdemeanor); and one count of Official Misconduct in violation of Penal Law, Section 195.00(2) (a Class A misdemeanor). These charges arise from an incident of July 3, 2014. The gist of the matter is that Defendant, then a Senior Investigator employed by the Putnam County Sheriff, is accused of attempting to assault a prisoner, neglecting official duties, and falsifying paperwork regarding the incident.

THE AUTHORITY TO DETERMINE THE APPLICATION

The District Attorney contends that this application should be assigned to “the acting County Court Judge presiding over this matter” (People's Mem. of Law, at 10), referring to Hon. Robert Neary, who has been assigned to preside over this case. For the reasons which follow, such a reference is not legally permissible.

Section 701(subd. 1) of the County Law provides that, when the district attorney of a county is disqualified from acting, a superior criminal court in the county wherein the action is triable may order the appointment of a special district attorney. Hon. Robert Neary, a Judge of the Court of Claims assigned as an Acting Supreme Court Justice, presides in a superior criminal court in Putnam County. However, the Uniform Rules for the New York State Trial Courts (22 NYCRR § 200.15 ) provides further regulation:

Any party filing with a superior court an application for appointment of a special district attorney, pursuant to section 701 of the County Law, shall make the application to the Chief Administrator of the Courts or to an appropriate Deputy Chief Administrative Judge. The Chief Administrator, Deputy Chief Administrative Judge, or appropriate Administrative Judge shall assign a superior court judge to consider the application as provided by law, selected from a list of judges established for that purpose that has been approved by the Chief Administrator and the Presiding Justice of the appropriate Appellate Division.

The Annual Order for the Ninth Judicial District, promulgated by the Chief Administrative Judge and the Presiding Justice of the Second Judicial Department, specifies the jurists who may hear applications pursuant to County Law Section 701. The undersigned is one of the jurists so listed; Judge Neary is not.

Upon submission of this application, the motion papers were referred to the Hon. Michael V. Coccoma, Deputy Chief Administrative Judge for the Courts Outside New York City so that the application would be treated as having been filed with him in accordance with the provisions of Rule 200.15. Judge Coccoma thereafter, by order, assigned the undersigned to determine the application. The undersigned, as an elected Supreme Court Justice in the Ninth Judicial District, presides over matters in all counties in this District, including Putnam County, and was selected by Judge Coccoma from the list of judges authorized to hear these applications by the Chief Administrative Judge and the Presiding Justice.¹

Accordingly, the application has been properly assigned to the undersigned and will be decided by the undersigned.

THE CONTENTIONS OF THE PARTIES

Defendant seeks the disqualification of the Putnam County District Attorney on the basis of the allegations and counter-allegations that have been exchanged between the District Attorney and the Putnam County Sheriff during and in the aftermath of People v. Hossu, a rape prosecution in which the defendant was acquitted. The acquittal came on April 3, 2014. The Hossu case spawned two civil lawsuits, one by District Attorney Adam B. Levy against Sheriff Donald B. Smith and one by Smith against Levy. Hossu was a close personal friend of Levy. Defendant Castaldo was, at the time, a senior member of the Sheriff's office.

1. The Levy Lawsuit

On August 14, 2013, while the Hossu case was still pending, Levy filed a civil action against Smith, individually, as well as against seven “John Doe” potential unidentified defendants, in Supreme Court, Putnam County (Index No. 2019/13) (the “Levy Lawsuit”). The “John Doe” defendants are stated in the Complaint as being individuals, whose identity is not known with certainty by Levy but who “represent individuals who participated in the publication and dissemination of the below-referenced defamatory statements with defendant Smith.” The Complaint was verified by Levy and was interposed on his behalf of Michael H. Sussman, Esq., of Sussman & Watkins.

In the Complaint, Levy alleges that Smith and his senior investigators were initially resistant to suggestions that Levy made when he first became District Attorney but after a few months they became more receptive, only to have hostility re-emerge in late 2010 and increase into 2011 and 2012. According to the Complaint, Levy decided that many of Smith's decisions were politically motivated, devoid of legitimate law enforcement purposes and potentially harmful to crime victims, police officers and taxpayers. Levy alleges that Smith refused to address the failure of the Sheriff's Office to follow the operating procedures of the Child Advocacy Center.

Levy makes detailed allegations as to how the criminal proceedings against Hossu arose, his recusal, his decision to recuse, and his directions to his staff to request that the undersigned appoint the Westchester County District Attorney's Office to handle the investigation. Levy asserts that Sheriff's investigator Steven Tricinelli conducted interviews without first speaking with an Assistant District Attorney from Westchester. Levy alleges that he was concerned that Smith would politicize the case and would arrest Hossu without first conducting a proper investigation. He attributes this to Smith preparing, in March 2013, to seek with re-election during the year, with two potential challengers for the Republican nomination, one of whom was a senior official with the Putnam County District Attorney's office. Levy details that Tricinelli filed a felony complaint against Hossu charging him with forcible rape on October 24, 2010 and that, after an arrest warrant was issued on March 20, 2013, Smith and his senior staff went to Hossu's home at 221 Clock Tower Commons, at approximately 10:20 p.m., and arrested him. Levy charges that in the week leading up to the arrest, Smith and his senior staff focused their time, energy and resources attempting to connect Levy to Hossu, as opposed to thoroughly investigating the charges. Levy alleges that Smith and his senior staff effectuated Hossu's arrest without having used any case enhancement procedures, without obtaining records, and without interviewing witnesses.

Levy asserts that on March 21, 2013, following Hossu's arrest, Levy was contacted by a reporter from the Journal News who told Levy that an anonymous source from the Sheriff's office leaked a story about Hossu's arrest and that Hossu was Levy's “live-in” personal trainer. Levy alleges that, several hours later, Smith issued an official press release which reported Hossu's arrest for forcible rape and gave an address for Hossu that was Levy's address. This, according to Levy, led to media inquiries and media attention that frightened his wife and his young children. After Levy issued his own press release stating that Smith's use of Levy's address as Hossu's was erroneous and that Levy had recused himself from Hossu's case, Smith allegedly issued a second press release and that, as result thereof, Smith was reported as asserting that: Levy had used his office to influence a child rape case involving a suspect well known to him; Levy had tried to undermine the rape investigation; Levy had committed ethical violations; Levy had tried to distract the public from the nature of the case; and Levy had used his office to mislead the public and influence the rape investigation. Levy alleges that Smith accused Levy of harboring, shielding, aiding and abetting Hossu. Levy claims that Smith did these things because Smith viewed Levy as a political enemy and as an obstacle to Smith's securing his party's nomination for re-election. Levy seeks $3 million in compensatory damages and $2 million in punitive damages.

On this motion, Castaldo, by his attorney, Andrew Quinn, Esq. asserts that, since the inception of discovery in the Levy Lawsuit, Levy has identified Castaldo (along with others in the Putnam County Sheriff's Department) as a witness to be deposed and questioned. Levy secured from Justice Lewis J. Lubell, the Justice assigned to the Levy Lawsuit, an order permitting Levy to personally question non-party employees of the Putnam County Sheriff's Department, such as Castaldo. And there is no dispute over the fact that Levy has sought to obtain Castaldo's testimony in the civil suit and that Castaldo has resisted testifying.

On February 12, 2015, shortly after date of the instant Indictment, Mr. Sussman wrote to Justice Lubell seeking judicial assistance in obtaining Castaldo's testimony. In particular, Mr. Sussman described Castaldo, and Gerald Schramek, as being “two senior...