The following is a copy of a Notice of 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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To:
Thomas Spota, District Attorney of Suffolk County
North County Complex - Building 77
Veterans Memorial Highway
Hauppauge NY 11788
Attn: Thalia M. Stavrides, Esq., Assistant District Attorney
PLEASE TAKE NOTICE that, on the attached affirmation of Carl E. Person, a civil attorney for the moving defendants, dated May 2, 2002 and affidavit of Richard Dombroff, defendant, pro se, on the indictment(s) herein and any amendments thereto (hereinafter referred to as the "Indictment"), and on all the papers and proceedings had on this matter to date, the undersigned will make a motion before the Hon. Stephen Braslow, County Court, State of New York, County of Suffolk located 210 Center Drive, Riverhead, New York on the 10th day of May, 2002, at 9:30 a.m., or as soon thereafter as counsel can be heard, for an order
(i) pursuant to Section 701 of the New York County Law, Standard 3-1.2 of the ABA Standards relating to the Prosecution Function ("prosecutor should avoid the appearance of a conflict of interest with respect to official duties" and commentary thereto which 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") and New York case law (including People v. Nuzzi, 128 Misc.2d 502; 489 N.Y.S.2d 836; 1985 N.Y. Misc. LEXIS 2949 (Sup. Ct., NY Co. 1985), 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 ["appointment may be made for all purposes, including disposition"] and the laws and rules of the State of New York prohibiting spoliation of evidence, that each of the District Attorney Parties, Catterson and Stephenson, in his, her or its individual and/or governmental capacity, preserve all documents and other things (including all photographs taken or notes made in or at the home of Richard and Patricia Dombroff on January 16 or January 17, 2001 or at any other date, any e-mails or other data processing records, and all backups in whatever computers or other media they may be stored) which relate to any of the claims, charges, defenses or issues raised in any of the pleadings for (a) this or any related criminal proceedings involving Richard Dombroff or any co-defendants, (b) the earlier criminal proceedings brought by the District Attorney of Suffolk County in 1986-1987 against Richard Dombroff; (c) the related attachment proceeding in the Supreme Court, Suffolk County, at Smithtown, NY (Index No. 01-00437) commenced on January 16, 2001, and (d) the action by Richard Dombroff and others against the District Attorney Parties, Catterson and Stephenson (Eastern District of New York, Index No. 02 Civ. 2446), including but not limited to all documents and other things relating to (i) the attachment, forfeiture, distribution, use and accounting for all assets obtained from any persons through any seizure, forfeiture, attachment, or abandonment by the District Attorney of Suffolk County (or predecessors or successors) or any of its agents, detectives, assistant district attorneys, investigators, policepersons, officials, employees or attorneys from January 1, 1995 to the present (hereinafter, the "Seized Assets"), (ii) all time sheets, calendars, diaries, pay records, bonuses, promotions, incentives, productivity rules, policies and records, and other records concerning the activities of all agents, detectives, assistant district attorneys, investigators, policepersons, officials, employees and attorneys of or at any time working with the District Attorney of Suffolk County or any predecessor or successors relating to any of the actions or criminal proceedings described above or to any seizures, forfeitures, attachments, use, distribution, liquidation, or distribution of any of the Seized Assets", and (iii) rules, regulations, orders or policy concerning record retention or record destruction (hereinafter, "Order Prohibiting Spoliation");
(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 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;
(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") 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.
(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); and
(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:
.....(1) 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
.....(2) 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.
(x) for such other and further relief as the Court may deem just and proper.
Dated: New York, New York
.........May 2, 2002
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:ÿ631-673-xxxx
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 NOTICE 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.