The following is a copy of a Memorandum of Law in Support of a Motion served on the District Attorney to reactivate the stayed forfeiture action, which was commenced without notice and through an ex parte attachment of all of the assets (except clothing, and household items) of an alleged white-collar criminal defendant, his wife, his children and his business corporations for allegedly not performing services promised as a professional finder.
The relief sought is to enable the alleged defendant and his family to be able to recover the seized assets to enable them to defend their liberty and property in the criminal and attachment proceedings, and for the appointment of a special district attorney (or "special prosecutor") to take over the criminal proceeding (because of the conflict of interest of the current district attorney, who is now a defendant in the civil action brought by the alleged criminal defendant), and for reference to such newly-appointed special prosecutor the matter of the alleged crimes which were committed by the prosecutor against the alleged white collar criminal defendant and his family, and to prosecute the prosecutor, if appropriate.
CASE NOS. 449A-2001, 449d-2001
COUNTY COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
-against-
RICHARD DOMBROFF, DEUTSCHE SWISS CAPITAL CORPORATION, Defendants.
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This memorandum of law is submitted by defendants in support of their motion for an order
(i) pursuant to Section 701 of the New York County Law, requiring (i) the District Attorney of Suffolk County, Thomas Spota, (ii) the Office of the District Attorney of Suffolk County, New York, and (iii) Assistant District Attorney Thalia M. Stavrides (hereinafter, collectively referred to as the "District Attorney Parties") to recuse themselves from any further involvement in the prosecution of this criminal proceeding (other than as witnesses) against the moving defendants;
(ii) pursuant to Section 701(b) of the New York County Law, appointing (a) some attorney at law having an office in or residing in the county, or any adjoining county, or (b) a district attorney of another county within the Second Judicial Department -- to act as special district attorney herein during the disqualification of the District Attorney Parties;
(iii) pursuant to Section 701 of the New York County Law and other New York law, investigate and prosecute (jointly with this criminal proceeding, or severally in one or more separate criminal proceedings) any criminal activities (relating to the above-captioned criminal proceedings) directed against either of the moving defendants or any members of their family by any of the District Attorney Parties or James M. Catterson, Jr. ("Catterson") or Lynn M. Stephenson ("Stephenson");
(iv) pursuant to the implied authority contained in Section 701(4) of the New York County Law and the laws and rules of the State of New York prohibiting spoliation of evidence as described in the motion;
(v) pursuant to the implied authority contained in Section 701(4) of the New York County Law and the laws of the State of New York prohibiting spoliation of evidence, that each of the District Attorney Parties file a certification with this Court, under the penalties of perjury, that he, she or it has complied with the Order Prohibiting Spoliation and has notified all appropriate persons as described in the motion; (vi) pursuant to the implied authority contained in Section 701(4) of the New York County Law, that each of the District Attorney Parties, in his, her or its individual and/or governmental capacity, produce and deliver to the Clerk of this Court, within 10 business days after the date of the Court's decision on this motion, all of the documents and other things required to be preserved in the Order Prohibiting Spoliation, together with a description (the "Description") of all documents produced and a detailed privilege log (the "Privilege Log"), for delivery by the Clerk to the special district attorney appointed by this Court after said attorney files his/her Notice of Acceptance of said appointment; and further that a copy of the Description and Privilege Log for each of the District Attorney Parties shall be served at the same time upon each of the moving defendants.
(vii) pursuant to Sections 30.20 et seq. of the New York Criminal Procedure Law and other rules, and the 5th, 6th and 14th Amendments to the U.S. Constitution and comparable provisions in the New York Constitution which guaranty defendants due process and a fair trial, grant an adjournment of the trial of this matter until 60 days after the date that a special district attorney has been appointed and has notified in writing the Court and the parties of his/her acceptance of the appointment, to provide time for the newly-appointed special district attorney to become acquainted with the facts in the within criminal proceeding, the related attachment proceeding commenced by the District Attorney of Suffolk County, and the related civil action commenced by the moving defendants against the District Attorney Parties, Catterson, detective Maureen O'Dea, and Stephenson;
(viii) pursuant to Sections 30.20 et seq. of the New York Criminal Procedure Law and other rules, and the 5th, 6th and 14th Amendments to the U.S. Constitution and comparable provisions in the New York Constitution which guaranty defendants due process and a fair trial, grant an adjournment of the trial of this matter until 90 days after the date that a special district attorney has been appointed and has notified in writing the Court and the parties of his/her acceptance of the appointment, to provide time for the moving defendants to obtain criminal counsel in this matter, obtain discovery which prior counsel did not obtain, and to otherwise prepare for trial in this matter (which prior counsel did not do);
(ix) pursuant to the 5th, 6th and 14th Amendments to the U.S. Constitution and comparable provisions in the New York Constitution and related statutes and rules, grant moving defendants an evidentiary hearing
..........(i) to enable moving defendants to put on witnesses to offer evidence in support of the motion without requiring Richard Dombroff to testify as to such matters; and
..........(ii) to enable Richard Dombroff to testify in support of the motion but under a protective order prohibiting the use of his testimony for any purpose other than determination of this motion.
Standard 3-1.2 of the ABA Standards relating to the Prosecution Function states that a "prosecutor should avoid the appearance of a conflict of interest with respect to official duties" and the commentary thereto states: "It is of the utmost importance that the prosecutor avoid participation in a case in circumstances where any implication of partiality may cast a shadow over the integrity of the office".
See People v. Nuzzi, 128 Misc.2d 502; 489 N.Y.S.2d 836; 1985 N.Y. Misc. LEXIS 2949 (Sup. Ct., NY Co. 1985). In Wright v. United States, 732 F.2d 1048; 1984 U.S. App. LEXIS 26117 (2d Cir. 1984), the Second Circuit held that when the wife of a defendant brought criminal charges against the prosecutor, the prosecutor should have recused himself. The Court also cited the ABA commentary,
When the possibility of a conflict of interest arises, the prosecutor should recuse himself or herself and make appropriate arrangements for the handling of the particular matter by other counsel in accordance with the principles contained in this chapter. n.1 It is of the utmost importance that the prosecutor avoid participation in a case where any implication of partiality may cast a shadow over the integrity of the office.n6. As said in People v. Zimmer, 51 N.Y.2d 390, 395, 414 N.E.2d 705, 705, 434 N.Y.S.2d 206, 209 (1980),
What impression could the defendant have had of the fairness of a prosecution instituted by one with the personal and financial attachments of this prosecutor? Would it have been unreasonable for the defendant -- or others -- to doubt that the public officer, whose burden it was to screen the complaint for frivolousness and, if necessary, guide its destiny before the Grand Jury, would do so disinterestedly?
Because of the allegations that the prosecutors violated various penal statutes, there is an added degree of conflict, one which necessitates that the prosecutors win at any cost in order to try to hide their violations of law. For both types of conflict, personal liability to the moving defendants, and for the possibility that failure to convict the moving defendants could leave the prosecutors exposed to professional loss of license and to conviction of one or more crimes, it is clear to anyone (but the prosecutors, apparently) that they have no business remaining on the case, and should have moved themselves for the appointment of a special district attorney.
Section 701(b) of the New York County Law permits the appointment of "some attorney at law having an office in or residing in the county, or any adjoining county" or, alternatively, the appointment of " a district attorney of another county within the Second Judicial Department -- to act as special district attorney herein during the disqualification of the" District Attorney Parties; Section 701 of the New York County Law and other New York law, enables the Court to make a reference to the special district attorney to investigate and prosecute the prosecutors herein because of their alleged wrongful conduct and obvious disqualification to prosecute themselves. Such a reference would be jointly with this criminal proceeding, or severally in one or more separate criminal proceedings, as to the defendants in the Eastern District civil action, as to any criminal activities (relating to the above-captioned criminal proceedings) directed against either of the moving defendants or any members of their family.
Section 701(4) of the New York County Law provides in part "appointment may be made for all purposes, including disposition", which means that the special district attorney has whatever powers the current prosecutors have, including obtaining the relevant documents. This court, in aid of the transfer of prosecutorial function, should make sure that the current prosecutors (because of their personal bias and conflict of interest) do not start destroying evidence during the period that it takes for the special district attorney to be appointed and qualified.
Thus, the moving defendants' request for an order prohibiting destruction of the specified documents, as well as an order requiring the documents to be turned over to the Court Clerk, for later turning over the the special district attorney, is appropriate, and obvious under the circumstances (especially in light of Arthur Andersen's activities).
New York law prohibits spoliation of evidence and the moving defendants are without much recourse if the evidence needed by them to prove their case of prosecutorial misconduct is to be managed by the prosecutors until such time as a special district attorney is appointed, and takes office. Pursuant to the implied authority contained in Section 701(4) of the New York County Law and the laws of the State of New York prohibiting spoliation of evidence, each of the District Attorney Parties should be required to file a certification with this Court, under the penalties of perjury, that he, she or it has complied with the Order Prohibiting Spoliation and has notified all appropriate officials, employees, agents, attorneys, and consultants and companies maintaining any storage facilities, servers, backup media, networks, systems or computers, about the terms of the Order Prohibiting Spoliation and have directed compliance with said Order.
Also, pursuant to the implied authority contained in Section 701(4) of the New York County Law, each of the District Attorney Parties, in his, her or its individual and/or governmental capacity, should be required to produce and deliver to the Clerk of this Court, within 10 business days after the date of the Court's decision on this motion, all of the documents and other things required to be preserved in the Order Prohibiting Spoliation, together with a description (the "Description") of all documents produced and a detailed privilege log (the "Privilege Log") as described in CPLR 3122(b). Also, see Thompson v. Lynbrook Police Department, 172 F.R.D. 23, 27-28 (District Attorney of Nassau County filed privilege log); 1997 U.S. Dist. LEXIS 11071 (E.D.N.Y. 1997); Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 471; 1993 U.S. Dist LEXIS 7377 (S.D.N.Y. 1993) and In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992); and F.R.Civ.P. 45(d) and related rule of the Eastern District as to any documents withheld by reason of any claimed privilege or the attorney's work product rule, for delivery by the Clerk to the special district attorney appointed by this Court after said attorney files his/her Notice of Acceptance of said appointment; and further that a copy of the Description and Privilege Log for each of the District Attorney Parties shall be served at the same time upon each of the moving defendants.
Pursuant to Sections 30.20 et seq. of the New York Criminal Procedure Law and other rules, and the 5th, 6th and 14th Amendments to the U.S. Constitution and comparable provisions in the New York Constitution which guaranty defendants due process and a fair trial, this Court should grant an adjournment of the trial of this matter
(a) until 60 days after the date that a special district attorney has been appointed and has notified in writing the Court and the parties of his/her acceptance of the appointment, to provide time for the newly-appointed special district attorney to become acquainted with the facts in the within criminal proceeding, the related attachment proceeding commenced by the District Attorney of Suffolk County, and the related civil action commenced by the moving defendants against the District Attorney Parties, Catterson, detective Maureen O'Dea, and Stephenson; and
(b) until 90 days after the date that a special district attorney has been appointed and has notified in writing the Court and the parties of his/her acceptance of the appointment, to provide time for the moving defendants to obtain criminal counsel in this matter, obtain discovery which prior counsel did not obtain, and to otherwise prepare for trial in this matter (which prior counsel did not do).
The prosecutors by their unlawful actions have put the moving defendants in the position that if they try to complain about the prosecutors' unlawful activities defendant Richard Dombroff has to forgo his 5th Amendment right against self incrimination (and through such loss) his 5th and 6th Amendment rights to due process and a fair trial.
The Court has the right to offset this constitutional problem by granting Dombroff an evidentiary hearing for him to call witnesses to help establish the prosecutors' wrongful activities, and to the extent Dombroff takes the witness stand, to enter a protective order prohibiting anyone from using his testimony except in the determination of this motion.
By reason of the foregoing, the moving defendants respectfully request that this Court grant the motion in its entirety.
By __________________________________
Richard L. Dombroff, defendant, pro se and as President of pro se defendant Deutsche-Swiss Capital Corporation
516 Half Hollow Road
Dix Hills NY 11746
home: 631-673-xxxx
To:
Thomas Spota, District Attorney of Suffolk County
North County Complex - Building 77
Veterans Memorial Highway
Hauppauge NY 11788
Attn: Thalia M. Stavrides, Esq., Ass't District Attorney
Case Nos. 449A-2001, 449D-2001
COUNTY COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
-against-
RICHARD DOMBROFF, DEUTSCHE SWISS CAPITAL CORPORATION, Defendants.
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I, Carl E. Person, an attorney duly authorized to practice in the State of New York, do hereby affirm that the following is true under the penalty of perjury pursuant to CPLR 2106:
I am not a party to this action, am over 18 years of age, and on May 3, 2002, I served a true copy of the foregoing DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION dated May 3, 2002 (the "Document") on the District Attorney for Suffolk County by mailing the same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service within the State of New York, addressed to the last-known address of said District Attorney, as follows:
THOMAS SPOTA, SUFFOLK COUNTY DISTRICT ATTORNEY
Attn: Thalia M. Stavrides, Esq., Assistant District Attorney
Dated: May 3, 2002
____________________________________
No. County Complex, Bldg. 77
Veterans Memorial Highway
Hauppauge NY 11788
Carl E. Person
Note: The above proof of service was not actually used; the papers were served by hand, and an admission of service was stamped on the original copies for filing in Court. The proof of service above is supplied as a useful form for persons needing a form for proof of service. Note, however, that the form was prepared for an attorney's signature, which requires no notary; a pro se party probably would not be permitted to use a mailed proof of service, and would have to find someone else to do the mailing and execution of a proof of service.