People v. Fountain

• Decision Date: 01 December 2016
• Docket Number: Indictment No. 16-1139
• Citation: People v. Fountain, 2016 NY Slip Op 32375(U), Indictment No. 16-1139 (N.Y. Cty. Ct. Dec 01, 2016)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, v. RONALD FOUNTAIN, GARY GORDON and SHANE HUG, Defendants.
• Court: New York County Court

2016 NY Slip Op 32375(U)

THE PEOPLE OF THE STATE OF NEW YORK, v. RONALD FOUNTAIN,GARY GORDON and SHANE HUG, Defendants.

Indictment No. 16-1139

STATE OF NEW YORK COUNTY COURT : COUNTY OF RENSSELAER

December 1, 2016

DECISION AND ORDER

Each of the above named Defendants were indicted for the following offenses:

Petit Larceny, a Class A Misdemeanor, in violation of Penal Law §155.25, where it is alleged that each Defendant stole a copy of 911 calls from the Troy Police Department;

Public Corruption, in violation of Penal Law §496.06 (1), a non-designated misdemeanor, where it is alleged that each Defendant committed the specified offense of Petit Larceny through the use of his public office and the State or any political subdivision thereof or any governmental instrumentality is the owner of the property;

Official Misconduct, a Class A Misdemeanor, in violation of Penal Law §195.00(1) where it is alleged that these Defendants, acting in concert with one another, each of whom is alleged to be a public servant, did, with intent to obtain a benefit or deprive another person of a benefit, solicited and requested a public servant to commit an act relating to the public servant's office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized;

Conspiracy in the Sixth Degree, a Class B Misdemeanor, in violation of Penal Law §105.00, where it is alleged that each of the Defendants did, with intent that conduct constituting a crime be performed, agreed with one or more persons to engage or cause to perform such conduct; and

Criminal Solicitation in the Fifth Degree, a violation, contrary to Penal Law §100.00, where it is alleged that each Defendant, with intent that another person engage in conduct constituting a crime, he solicited, requested, commanded, importuned or otherwise attempted to cause such other person to engage in such conduct.

All of these acts are alleged to have taken place in October 2015.

The arraignment of all three Defendants was continued in Rensselaer County Court on October 13, 2016, by the undersigned and they were released in their own recognizance.

By agreement of the three Defendants and their counsel, and without objection by the People, they have, through the argument of one counsel, Trey Smith, Esq., attorneyfor Shane Hug, submitted a collective Motion for the Appointment of a Special District Attorney pursuant to County Law §701. The Motion is opposed by the People.

DEFENDANTS' ARGUMENTS

The Defendants argue that Mr. Abelove and his office should be disqualified from the prosecution of this Indictment based upon an appearance of impropriety such as to discourage public confidence in the District Attorney's Office and the system of law to which it is sworn to uphold. They point out that the genesis for this prosecution is the claimed violation of Section 308 (4) of the County Law which provides:

records, in whatever form they may be, of calls made to a municipality's E911 system shall not be made available to or obtained by any entity or person, other than that municipalities public safety agency, another governmental agency or body, or a private entity or a person providing medical, ambulance or other emergency services, and shall not be utilized for any commercial purpose other than the provisions of emergency services.

They also invoke Rules of Professional Conduct, 1.7 (a) (2) which provides that:

"A lawyer shall not represent a client if a reasonable lawyer would conclude that...there is a significant risk that the lawyer's professional judgment on behalf of the clientwill be adversely affected by the lawyer's own...personal interests."

They identify the following facts, none of which have been disputed by the People, in their Affirmation in Opposition:

1. Shane Hug was a member of Mr. Abelove's office as an Assistant District Attorney at the time it is alleged he committed the transgressions outlined in the Indictment.

2. Gary Gordon was an investigator for the Rensselaer County District Attorney's Office when Mr. Abelove was a candidate in 2011 seeking to obtain the Republican nomination for District Attorney against Richard McNally. Mr. Abelove and Troy Police Officer Sgt. Tim Calinaeri, sought to obtain the endorsement of the Troy Police Benevolent Association as part of his campaign. At a meeting held during September or October 2011 by the Troy Police Benevolent Association, Mr. Gordon was present when Mr. Abelove and Sgt. Calinaeri urged the membership to endorse Mr. Abelove. Mr. Abelove is alleged to have cited the mishandling of five or six cases then being supervised by Richard McNally resulting in the dismissal of these charges, asserted to be serious felony cases. In response, in front of the membership, Mr. Gordon is alleged to have challenged the accuracy and truthfulness of Mr. Abelove's assertions and told the membership that Mr. Abelove was in fact lying to them, in an attempt to gain theirsupport.

The membership did not endorse Mr. Abelove for his candidacy for Rensselaer County District Attorney. After Mr. Abelove was ultimately elected Rensselaer County District Attorney, in 2014, but prior to taking office, he abolished the position of investigator, then occupied by Gary Gordon. It is further alleged that Mr. Gordon was the unsuccessful Democratic candidate for Sheriff in Rensselaer County.

3. In October 2015, James Gordon, (no relation to Defendant Gary Gordon), then a Republican candidate for Mayor for the City of Troy, was the object of a story reported in local newspapers and television regarding a 911 call alleged to have been made by Mr. Gordon's wife concerning a domestic disturbance. It is alleged that James Gordon and Mr. Abelove have supported one another politically and financially in their various runs for public office. Mr. Gordon lost the election for Mayor in 2015. He made a public statement looking forward to punishment of the person or persons who released the 911 call information without permission.

It is alleged that Sgt. Calinaeri authorized the release of the 911 audio and gave it to Defendant Fountain, then a member of the Troy Police Department, to publish. It is further alleged that Sgt. Calinaeri testified before the Grand Jury resulting in the instant Indictment and was given immunity. He was not prosecuted criminally for anyinvolvement in the release of the 911 tape that is the subject of the current Indictment.

4. Defendants allege that Mr. Abelove has demonstrated a pattern of favoring criminal defendants who have supported him in his campaign to be elected District Attorney, including former Republican Rensselaer County Legislator Chairman Martin Reid and Richard Crist, a Republican County Legislator. They also allege that the Attorney General of the State of New York has commenced a public investigation of District Attorney Abelove by virtue of his presentation to a Grand Jury of an incident involving a police shooting, resulting in a fatality, at a time when the Governor of New York had granted exclusive authority, by an executive order, to the Attorney General, to investigate and prosecute police shootings resulting in fatalities, across the State of New York.

5. The underlying theory of prosecution in this case is unprecedented. They claim that there are no reported cases involving a criminal prosecution of any person who may have been involved in an unauthorized release of 911 calls, contrary to the prohibition contained in County Law §308 (4). The Section itself lacks any provision for criminal sanctions. Furthermore, it is alleged that Mr. Abelove's office and/or members of the New York State Police have released other 911 calls with impunity.

6. Defendant Hug may be a political rival of Mr. Abelove since he sought,unsuccessfully, to obtain the Democratic nomination for District Attorney in 2014.

Taken together, Defendants urge these undisputed facts have already created a public appearance of impropriety and partiality and that, in this case, for the sake of the public's confidence in the integrity and impartiality of justice in Rensselaer County, Mr. Abelove and his office should be disqualified from prosecution of this case.

They seek to distinguish a prior Motion, made only by Shane Hug, for the disqualification of Mr. Abelove, which was denied by Judge Breslin in April 2016. That Motion was made at a time when the matter was under investigation and there had not yet been any Indictment. Since then, Defendants claim new facts came to light that were not contained in the prior Motion. For example, Defendants were unaware that Sgt. Calinaeri was the officer who disclosed the 911 audio to Defendant Fountain and that Fountain claimed that Sgt. Calinaeri authorized the release of the 911 audio. Further, it was not known in the prior Motion that Mr. Abelove had granted Sgt. Calinaeri immunity from prosecution and that Sgt. Calinaeri was Mr. Abelove's political supporter. Also, Defendant Hug did not know that James Gordon and Mr. Abelove were political allies and supporters of one another's campaign and that Mr. Abelove had contributed to James Gordon's campaigns for Troy City Council and Mayor. Finally, Defendants were unaware that the Troy Police Department had released a 911 audio of a separate incident involving a police shooting and further that Mr. Abelove had sought the appointment of a SpecialDistrict involving the prosecution of a separate criminal Defendant, Eugene Grimmick, which case was only recently dismissed by Saratoga County Court. Therefore, they assert, the previous Decision by Judge Breslin, denying the Motion to Disqualify, can be distinguished from the instant Motion.

DISTRICT ATTORNEY'S RESPONSES

In response, the District Attorney points to the standard that any defendant must meet in order to obtain the disqualification of a District Attorney upon the grounds of appearance of impropriety is a high one, citing, People v. Keeton, 74 N.Y.2d 903 and Schumer v....