STATE OF NEW YORK ‘SUPREME COURT COUNTY OF RENSSELAER ‘THE PEOPLE OF THE STATE OF NEW YORK against - DECISION & ORDER EDWARD McDONOUGH and MICHAEL LOPORTO, Indictment #SP11- 1002 Index #235598, Defendants. Appearances: Trey Smith, Esq,, Special District Attorney Brian D. Premo, Esq., Attorney for Edward McDonough Michael A. Feit, Esq, Attorney for Michael LoPorto Present: Pulver, J Defendant Edward McDonough ("McDonough’) brings this motion seeking disqualification of Trey Smith, Esq. as Special District Attomey (‘SDA") as well as dismissal ofthe indictment against him and release of the grand jury minutes. A separate motion by McDonough seeks an order restricting extra-judicial statements of the SDA. The motion is intially supported by a detailed 346 paragraph attomey's affirmation. tis followed by six other supplemental or reply affidavits or affirmations, Those documents lay out a ‘pictorial history" of how defendant McDonough views the origins of the inquiry into imeguiarties involving absentee ballots obtained and submitted regarding the Working Families Party (‘WEP’) primary in September, 2009. ‘The papers attack the SDA who Was appointed to conduct an investigation into thesenot ireguarty, Te document acute te SDA of having eenicing persona reas and pltical reasons” for rosecung McDonough and co-deferdat Michael «eporo(LePera instead of te Democtt Trey Cound Icumts andor Pty workers impicatd by substantial cede evidence in he alleged crimes THe deta provide includes a dessin of pion led by WP member Chsian «ambertson which changed the vally othe suspect absent bats, Te P89 oti befor sudge Lyne ena resut oft Lamberton pesiionfrvalved teeny For some rine WP votere regarding use of te namesin obtring, sing and cane sbsentoe blots inthe WEP primary eld in September of 2008, The peti, fs upping aides andthe resulting hearing testimony provided the pPsre genesis ‘orth appoinient ofthe SDA ate present vesigation wich led the reank 4146 count indictment involving McDonough and LoPort. itis ether epectaly or imply allge inthe variously designated supper © seDonough’s submissions that SDA Smith ‘worked hard and with patent diigenicel to prosecute only wo chosen politcal scapegoats whl those Dernorat incumbents, party workers andlor others who pepetod the aged mai foul 2° allowed to remain outside the acceptane oud impoon of criminal respons” some ofthe alleged incentive (or matvation) for the SDA to chose “only” the instant defendants to prosecute include - : wo ofthe Democrat Party's most gen workere ware given the Bene of & cooperation agreement (n rtur for incaiminating evidence against Donough) secause one of them 2 fend of the present ist atorney who helped Fim oot sected and enothr is the brother ofa wellanowm highly respected” Supreme court 2Justice ‘before whom the SDA has and wil kely practice” The SDA Is somehow protecting other ofthe named mainline Democratic Party individuals choosing only McDonough and LoPorto (described by McDonough as a marginalized figure in the Democratic party) = In the view of McDonough’ atte, the SDA never obtained, ori obtained, disregarded evidence which would have implicated "iowlevel” party workers - The SDA will nt prosecute such “low-level” workers because ‘No doubt many low-level drug traffickers and other street ciminals would vote to elect the SDA ithe dared ran forthe district attomey's office on such a platform of authorized avoidance of personal responsibility." In sum, the substance of MeDonough’s challenge tothe partly ofthe SDA is that there are numerous other persons wha are or may have participated in the forgeries under review by his SDA, MeDonough propounds thet because no one other than he and LoPorto have been charged, the SDA has necessarily limited such focus and selecively prosecuted for reasons involving personal animus or potical ambitions, and as such, he should be disqualified. * However, the Cours own notes indicate that the SDA never indicated that his, " MeDonough's papers spend many a paragraph implying thatthe SDA provided the benefits of ‘cooperation agreement toa witness but used the witnesses testimony before the grand jury kxowing tht portion of the witnesses statement to hin was inconsistent with statements made by the WFP registrants ‘whose absente ballots were improperly obtained or wed 2 These include the participation ofthe SDA in a pres conference held subsequent to the anrignment ofthe named defendans and an apperent poiticel snub by MeDonough’s father ofthe SDA wisen he sought suppor from the father for a nomination for the district attomey position some twenty yeas ago,investigation was concluded and he is certainly under no obligation to reveal to counsel, and thus the publi, hs intentions regarding other possible participants (and thus, possible defendants) in the WFP absentee ballt investigation. Indeed, fo the most par, the SDA does net deny most ofthe acts and comments attributed to him by counsel for MeDonough, relying on his denial of any i wil or animus in pursulng the investigation for which he was appointed ‘Applying what litle applicable law there is on the topic does not aid the dofendants cause here, Asin Schumer v Holtzman, 60 NY2d 48, 85, “The cours, as 2 general rule, should remove a public prosecutor only to protect a defendant from actual preludice arising from a demonstrated confit of interest ora substantial risk of ‘an abuse of confidence... The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ianored." (Also see Peoolev, Het, 66 NY23 628, aright to counsel ease confirming the Schumer thresholds.) In Haggerty , Himelein, 29 NY2d 431, 436, the Court of Appeals referenced Schumer stating, “he essence ofa district attorney's constitutional, statutory and common-law prosecutorial authority isthe ‘discretionary power to determine whom, whether and how to prosecute {a eiminall matter!" While the six affirmations/affdavits submitted successively by McDonough and his attomey lay out, amongst other things, a potential tial strategy, this court wil not elevate such strategy to the necessary threshold for éisquaiiation ofthe SDA, nor is there a sufficient factual dspute for which a hearing need be held. The juxtaposition of the recognized prosecutorial authority as per Haggerty, supra, with the actual prejudice threshold as distinctly set forth in Schumer, supra, dictates this result upon the 4uncontested facts herein ‘The Court has been presented with and has reviewed in sufficient detail the grand jury minutes leading upto the indictment of McDonough and co-defendant LoPorto and can find no hint of prosecutorial misconduct nor any reason to release any, portion of such minutes. They include transcripts of eight grand jury sessions conducted betwoon Devember 7, 2010 and January 26, 2011 Included also are 152 exhibits consisting of applications for absentee ballots, absentee ballot envelopes each containing a “statement of absentee voter’ as well as affidavits from persons in whose names absentee ballots were issued, Some 34 witnesses also testified MeDonaugh’s motion for an order (1) disqualifying the Special District Attorney, (2) dismissing the indictment and (3) releasing the grand jury minutes is DENIED in its entirety For the same reasons as set forth above, LoPorto's ‘motion’ is also DENIED. ‘As regards McDonough's application seeking an order restricting extra-judicial statements, the application is DENIED with the Court's good faith belief and confidence that the prosecutor, and indeed all counsel, will conduct themselves in accordance with all applicable and appropriate ethical rules, regulations, standards and opinions.‘The parties are advised thatthe 45 day period within which to make omnibus ‘motions shall begin on April 29, 2017, ‘The above constitutes the does the decision and order of this Court. mS, Dated: April 2% 2011 CCatskal, New York Papers Considered. Notice of Motion and Affirmation of Brian D. Premo and Affidavit of ‘Edward G. McDonough, each dated February 24, 2041, ‘Supplemental Affirmation of Brian De. Premo dated March 2, 2014 Reply Affidavit of Edward G, McDonough and Reply Affirmation of Brian D. Premo each dated March 25, 2011 Reply Affirmation of Brian D. Premo dated March 28, 2074 Notice of Motion and Affirmation of Brian D. Premo dated March 14, "2011 seeking an order restricting statements by the Special District Attorney, ‘Affirmation in Opposition of Trey Smith dated March 11, 2014 Letter response of Trey Smith dated March17, 2011 Letter response of Trey Smith dated March 25, 2011, “Affirmation of Michael A. Feit dated March 25, 2011 ‘Letter response of Trey Smith dated April 4, 2011 Lotter response of Michael A. Feit dated April 4, 2014 saufospemessnepnnato