PREMO LAW FIRM PLLC
20 Corporate Woods Boutevard
Albany, New York 12211
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September 27.2011 Hon. George J. Pulver c/o Supreme Court Clerk Rensselaer County Court House Troy. New York 12180 Re: Regular Mail and Facsimile to Chambers (943-3014)
People v. McDonough and LoPorto / September 5, 2011 Letter from A1r. FeU Index #SP 1.1-1002
Dear Judge Pulver: This is to reveal the two obvious jurisdictional defects of J\1r. Mclnerney's conviction as well as other apparent indicia of this wrongful prosecution that I can now discuss and upon which a motion to dismiss will be made as soon as practicable, pursuant to CPL 255.20(3). A motion to compel disclosure of Brady material will also be made. Hearings Required on Motions Pursuant to CPL 210.45 Initially, it must be respectfully stated that the Court was required to conduct a hearing on the prior motions to dismiss because they were based on sworn allegations of fact not conclusively refuted by unquestionable documentary proof. See, CPL 210.45; People v. Gruden, 42 NY2d 214 (1977). Similarly, the factual allegations that will be submitted in support of the coming motion will yet again require a hearing concerning the prosecutorial misconduct alleged. It is expected that the light certain to be shined on this case thereby will subject the SDA to as much scrutiny and criticism from the public as he has already endured from those intrepid law enforcement officers aware of the true nature of this matter. To repeat the words of Justice Kennedy, the media "guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Gentile v. State Bar of Nevada, 501 U.S. 1030, at l035} 1036. Hopefully. such scrutiny and criticism will prevent a further miscarriage of justice by bringing a favorable end to this wrongful prosecution, sooner than later. McInerney's Invalid Conviction Supports Allegations of Misconduct In view of the known facts and otherwise inexplicable conduct of the SDA it became obvious to the defense prior to indictment that a political scapegoat prosecution would be brought against Mr. McDonough in lieu of those Democrat officials and party workers who committed the subject voter fraud. After indictment, the defense submitted substantial evidentiary facts in support of motions to dismiss to establish that alleged prosecutorial misconduct and taken proper steps to end this injustice through law enforcement processes. Nonetheless, it is clear that the SDA will stubbornly pursue this wrongful prosecution until no longer permitted by definitive judicial or law enforcement
action. In fact, it appears that he acted solely to further its goals through the patently invalid conviction of McInerney, as discussed below. McInerney's Conviction is a Nullity: No SCI Filed with Waiver On August 26, 2011, McInerney purportedly waived indictment and consented to be prosecuted by superior court information ("SCI") for the forgery of an absentee ballot envelope in 2009. However, the SCI was apparently not filed with the Court at the time of the waiver of indictment ("waiver") as required by State Constitution and statutes. Specifically, the NYS Constitution states: "No person shall be held to answer for a [felony] ... unless on indictment ..., except that a person held for the action of a grand jury upon a charge for such all offense ... may waive indictment ... and consent to be prosecuted by an informationfiled by the district attorney ...." Art. 1, §6. Accordingly, CPL 195.40 mandates: "When indictment is waived ..., the [prosecutor} shall file a superior court information in such court at the time the waiver is executed", Also, see CPL 195.20, 200.15, 1.20(3~a). Clearly, "... the statutory procedure contains provisions not required by the constitutional authorization for waiver. .... A waiver that does not conform to the statutes is not a valid waiver; and .,. New York considers the waiver to be of jurisdictional stature. Thus, failure to COliform to these statutes will be treated as a jurisdictional defect, even though the constitutional requirement has been met. See, People v. Boston, 75 NY2d 585 (1990)". Mckinney's, CPL 195, Practice Commentaries, Peter Preiser, p.l90. (Emphasis added) Consequently, the fact that the SCI was not filed at the time of the waiver itself renders McInerney's conviction a nullity that must be vacated upon motion whenever made. See, discussion and cases cited below.
Mcinerney's Conviction is a Nullity: Waiver and SCI Did Not Charge any 2007 or
2008 Offense Named in Felony Complaints and McInerney was Not Held for Action of a Grand Jury on 2009 Felony Alleged More importantly, the subject waiver and SCI alleged a 2009 forgery that was never charged in a felony complaint but none of the crimes charged in the felony complaints filed in local court and upon which McInerney was held for action of a grand jury, Thus, McInerney's conviction is a nullity and its orchestration by the SDA appears to be further evidence of his alleged misconduct in wrongfully prosecuting Mr. McDonough instead of those Democrat officials and party workers responsible for the voter fraud, as discussed. Discussion of Relevant Facts and Law The essential facts and law relevant to McInerney's invalid conviction are indisputable. Almost two years after the SDA was appointed to prosecute the subject 2009 voter fraud, the NYSP filed ten (10) felony complaints in Troy Police Court charging McInerney with various 2007 and 2008 crimes, upon which he was held for grand jury action (CPL § 180.30). Those charges were not returned to local court for reconsideration (CPL 180.40) or reduced by the local court (CPL 180.50). Therefore, the SDA was required to present evidence of McInerney's commission of those crimes before a grand jury unless he waived indictment and consented to be prosecuted by SCIon one or more of them
(CPL 190.55). Specifically, CPL 190.55 mandates that a prosecutor "must submit to a grand jury evidence concerning a felony allegedly committed by a defendant who, on the basis of a felony complaint filed with a local criminal court ... has been held for the action of a grand jury except where indictment has been waived by the defendant pursuant to Article 195 " (Emphasis added). Also, CPL Article 195 provides that: a defendant may waive indictment and consent to be prosecuted on an SCI "when a local criminal court has held [him] for action of a grand jury" (195.1 0); a waiver of indictment must name each offense "to be charged in the [SCI] to be filed by the [prosecutor] pursuant to section 195.40" which "may include any offense for which the defendant was held for action of a grand jury and any offense properly joinable therewith ..." (195.20) (Emphasis added); and, the prosecutor must file the SCI with the court at the time of the waiver (CPL 195.40) .. In addition, CPL 200.15 states that an SCI "is a 'written accusation filed in superior court pursuant to CPL Article 195 ... that may include any offense for which the defendant was held for action of a grand jury and any offense ... properly joinable ...." (Emphasis added). Those simple waiver of indictment and SCI procedures are given context and further meaning by the following equally clear and elementary CPL provisions: a criminal action is commenced by the filing of an accusatory instrument in a criminal court, it includes the filing of all further accusatory instruments directly derived from the initial one and it commences when the first one is filed (CPL 1.20(16), (17); 100.05); the only way a criminal action may be commenced in superior court is by the filing of an indictment against a defendant who has never been held by a local criminal court for the action of a grand jury with respect to any charge contained in such indictment; otherwise, it can be commenced only in' a local criminal court by the filing of an information, misdemeanor complaint, or a felony complaint (CPL 100.05); a felony complaint does not serve as a basis for prosecution (CPL 1.20(8); if a defendant waives a hearing on a felony complaint, he must be ordered held for action of a grand jury "with respect to the charges contained in the felony complaint" and the related papers must be transferred to superior court for further proceedings; (CPL 180.30); and the only way that a crime can be prosecuted in superior court is by the filing of an indictment or an SCI (CPL 210.05). In summary, an SCI does not commence a criminal action in superior court; it merely serves as the basis for the prosecution of a charge contained in a felony complaint that commenced the criminal action in local court and upon which the defendant was held for action of a grand jury, when it is filed in superior court in strict compliance with the waiver of indictment procedures of CPL Article 195. It directly derives from a felony complaint commencing a criminal action and must allege at least the crime it charges. Therefore, it is axiomatic that "[ajn SCI may only be used when the defendant has been held for action of the Grand JUly and ... the charges that may be brought in an SCI are limited by the charges in the felony complaint, and strict waiver procedures must be followed. The failure to adhere to these procedures has significant consequences.' the plea is entirely invalidated. ... Similarly, while an SCI may contain a single count charging a lesser included offense of a count of the felony complaint, it may not contain a single count charging only a greater offense. And while an SCI may charge any offense
otherwise joinable with a charge in a felony complaint, at least one of the counts in the felony complaint must also be charged in an SCI ... Such an instrument is defective if it fails to include at least one of the counts in the felony complaint, or a lesser included offense of one. ... Relying on an SCI when it is not technically authorized or failing to adhere to the requirements for a waiver of indictment carries severe consequences. While practitioners ... often assume that they are insulated when the parties mutually agree on the appropriate procedure, this is not the case. There are many cases where pleas to SCI's have been invalidated because of the failure to follow the constitutional and statutory procedure, even though all parties fully consented to it and the defendant failed to ever raise an objection in the trial court. This presents a serious pitfall for prosecutors, who must re-prosecute stale cases when defendants become unsatisfied with their pleas." Practice Insights: Understanding Advantages and Limitations of Superior Court Information, John M. Castellano, Esq., NY CLS Desk Ed. Gilbert's Criminal Practice Annual 2011 Edition, p.CPL-376, 377. As stated, numerous 2007 and 2008 crimes were charged in the felony complaints filed in local court but the 2009 forgery named in his waiver and SCI was not. Therefore, McInerney's conviction is patently jurisdictionally defective because: (1) he was never held for action of a grand jury concerning that 2009 crime (no criminal action was ever commenced regarding it); and, (2) the waiver and SCI did not allege a 2007 'or 2008' crime charged in the felony complaints upon which he was held for grand jury action. Accordingly, Mclnerney's conviction is a nullity that must be vacated upon motion whenever made, regardless of whether the purported SCI was ever filed. See, also, CPL 1.20 (1), (2), (3-a), (8), (16) and (17), 100.05, 180.30, 190.55, 195.10, 195.20, 195.30, 195.40,200.15,210.05,200.20,200.40,440.10 and NYS Const., Article 1, §6. Also, see, People v. Menchetti, 76 NY2d 473 (1990) (CPL 190.25 permits waiver on an SCI charging only a lesser included offense of the offense charged in the felony complaint on which defendant held for action of grand jury); People v. Pierce, 14 NY3d 564 (2010) (failure to comply with CPL 195.20 requirements is jurisdictional defect); also, People v. Colon, 16 AD3d 433 (2d Dept., 2005); People v. Heme, 110 Ivlisc. 2d 152 (1981). See, also, People v. Smith, 86 Misc. 2d 1032 (1976); People v. Iannone, 45 NY2d 589 (1978); People v. Calbud, Inc., 49 NY2d 389 (1980); People v. Boston, 75 NY2d 585 (1990); People v. D'Amico, 76 NY2d 877 (1990); People v Zanghi, 79 NY2d 815 (1991); People v. Johnson, 187 AD2d 990 (1992); People v. Planty, 216 AD2d 895 (1995); People v. Mitchell, 235 AD2d 834 (1997); People v. Young, 241 AD2d 690 (1997); People v. Libby, 246 AD2d 669 (1998); People v. Verrone, 266 AD2d 16 (1999); People v. Schell, 300 AD2d 1120 (2002); People v.Rivera, 24 AD3d 367 (2005); People v. Gallagher, 34 AD3d 941 (2006); People v. Edwards, 39 AD3d 875 (2007). It is also obvious that the SDA knew or should have known that a waiver and SCI must charge an offense for which a defendant is held, for action of a grand jury for a related conviction to be valid. In any case, the defense, the Court and the public have a right to have many relevant questions answered: Why did the SDA have McInerney waive indictment and plead guilty on an SCI alleging only a 2009 felony (that he did not prosecute for almost two years) but none of the crimes charged in the complaints filed? Why did the SDA not simply have McInerney waive indictment and plead guilty to one
of the ten 2007 or 2008 felonies charged in those complaints to ensure a valid conviction? Why did the SDA arrange the invalid conviction only after McInerney was arrested by the NYSP acting independent of him? At the very least, the defense has a right to inquire into these and other relevant matters at a hearing. In short, the SDA's apparent orchestration of McInerney's patently invalid and null conviction shows either an inexplicable lack of knowledge of rudimentary law or something else; and the facts, common sense and logic dictate the latter. Indeed, it is incomprehensible if not done to further the wrongfully prosecution of Mr. McDonough instead of those responsible for the voter fraud. Is it to be believed that a University of Texas Law School graduate and former Chief Assistant, Rensselaer County District Attorney, with over 25 years experience is ignorant of such elementary law? It appears that the only plausible explanation is that he acted to purposely gave McInerney a basis to vacate his conviction because a first year attorney should know this law. Consideration of the following rhetorical question is perhaps even more illuminating: How better could the SDA have ostensibly prosecuted McInerney than by arranging his waiver of indictment and guilty plea on an SCI that is not filed and alleges a 2009 crime that is not charged in a felony complaint to resolve all pending and possible charges? The answer is self-evident: he could not possibly have more effectively avoided any meaningful prosecution of McInerney while appearing to obtain a conviction. The public and police would not know that Mcinerney's conviction is a jurisdictionally defective nullity. At the same time, the disposition also effectively took away any real incentive for McInerney to exonerate Mr. McDonough or incriminate others. Furthermore, the SDA still never initiated any prosecution of McInerney for any of the perhaps hundreds of voter fraud crimes he allegedly committed in 2007,2008 or 2009. Instead, he arranged Mcinerney's invalid conviction only after the NYSP filed the 2007 and 2008 felony charges, without his knowledge. It is also unlikely that the SDA will even now take any action. to cure Mcinerney's invalid conviction. Instead, he will likely simply ignore the plain wording of the law, make the specious argument that McInerney's conviction is valid because he was held for action of a grand jury on the 2007/2008 charges, and forge ahead in this wrongful prosecution. On the other hand, it is expected that McInerney will move to vacate his conviction when the media is apt to be unaware of it, the case is too stale to be prosecuted and/or the SDA relies on some other reason for not pursuing any prosecution. If so, the ultimate result of his prosecution will be the same as that of McGrath's "cooperation agreement": a guilty Democrat official walks free while the wrongful prosecution of Mr. McDonough for the voter fraud they and others committed continues. Clearly, McInerney suffers very little by accepting an invalid conviction and trivial sentence for the moment in return for skirting the numerous felonies allegedly committed for the Democrats not prosecuted. Invalid Conviction on One Felony and No Prosecution for Others As stated, the fact that the SDA failed to initiate any prosecution of Mclnerney by felony complaint or indictment also supports the allegations of prosecutorial misconduct in the wrongful scapegoat prosecution of Mr. McDonough. One need only juxtapose that fact
with his conduct in indicting the defendants on numerous felony counts, orchestrating their public arraignment with media fanfare, including a prejudicial "perp walk", and holding a related highly prejudicial press conference. Why did he not indict Mclnerney or otherwise threaten to subject him to the same treatment, including a costly, protracted criminal prosecution, unless he accepted responsibility and fully cooperated with the prosecution, as he previously claimed was his purported piecemeal prosecution strategy? Again, the answer appears self-evident: he does not want to prosecute the Democrat officials and party workers responsible for the voter fraud. Agreed Upon Sentence Supports Allegation of Alleged Misconduct The fact that the SDA agreed to a sentence of 90 days sheriff s work order, dismissal of the 2007 and 2008 felonies and a promise of no other prosecution in return for an invalid conviction also appears to be further indicia of the alleged misconduct. It takes little common sense to realize that only upon receiving such a "slap on the wrist" sentence would Mclnerney temporarily suffer a hollow conviction to quell any potential public criticism before having it vacated. He likely would not suffer a sentence of incarceration or probation and wait any period of time before moving to vacate the conviction. SDA has Invited Scrutiny and Criticism on Court The SDA has now also invited scrutiny and criticism on this Court because it was required pursuant to CPL 195.30 to ensure that the waiver and SCI procedure was done in strict compliance with the clear and simple requirements of CPL 195.10 and 195.20, i.e. they alleged a crime that was charged in a felony complaint field in local court and upon which McInerney was held for action of a grand jury and the SCI was filed with the COUlt at that time of the waiver pursuant to CPL 190.40. However, the Court somehow failed to do so because the proceeding did not follow those strict requirements of the basic law. In fact, in more than 25 years, I have never seen an SCI proceeding not done in strict compliance of the plain and simple mandatory CPL procedures discussed. The first inquiry of the superior court handling the matter always relates to the jurisdictional basis for acceptance of a guilty plea to a crime charged by SCI: Upon what charges was the defendant held for action of the grand jury in a stated local court?
The following apparent indicia of the SDA's misconduct may also now be discussed. NYSP and FBI Met with McDonough without SDA Knowing Perhaps the most revealing relevant fact is that the NYSP and FBI met with McDonough about the case in July 201 I, without the SDA's knowledge and conditioned upon its nondisclosure. That event alone clearly reflects that the law enforcement officers present and others consider the allegations of wrongful prosecution to be accurate and established by the evidence and circumstances. Why else would the meeting have taken place? Apparent Efforts of SDA to Thwart Federal Probe In early 2011, Mr. McDonough requested a federal investigation of the subject voter fraud and this wrongful prosecution and the FBI commenced a probe into the matter. It appears however, that the SDA immediately took action to thwart it. Initially, he leaked
to the media that the US Attorney confmned that no federal investigation was being conducted. Next, he told the public and the Court that he sought the assistance of US Attorney although it is obvious that he sought to have the ongoing federal investigation terminated. Thereafter, he was apparently contentious with an FBI Special Agent who attended a prospective NYSP debriefing of McInerney and otherwise failed to request the government's assistance in obtaining McInerney's complete cooperation. Later, he apparently made false allegations against the same FBI Special Agent in effort to derail the federal investigation. It is believed that he claimed in several e-mail(s) that the FBI Special Agent conspired against him andlor somehow hindered his prosecution. False Allegations against FBI Agent are Brady Material The e-mail(s) are clearly Brady material because they support the allegations of wrongful prosecution andlor they are otherwise favorable to the defense, especially in view of the SDA's actions in apparent effort to quash any federal investigation of the matter. At the least, they are relevant to the SDA's motive and failure to prosecute those responsible for the subject crimes, as alleged. Initial Effort of SDA to Obtain Invalid Conviction McInerney - July 2011 Next, prior to July 15, 2011, the SDA apparently made arrangements for McInerney to plead guilty on that date to an SCI charging a felony (or misdemeanor) in satisfaction of all charges that could be filed before any cooperation was given, although no felony complaint charging any crime against McInerney was filed in any court before then. Therefore, it appears that the SDA had previously arranged for a similarly invalid conviction of Mclnerney. However, the SDA cancelled that plea deal after the NYSP indicated that they were going to arrest McInerney for crimes committed in 2007 and 2008 because they were not satisfied with the manner in which the matter was being handled. The SDA then had himself appointed to the prosecution of those crimes by obtaining the same board of elections documents that he ignored when given to him by the defense as evidence of McInerney's guilt of the 2009 alleged voter fraud, and informing the district attorney that they incriminated McInerney. Soon thereafter, he arranged McInerney's invalid conviction in satisfaction of those charges, as discussed. SDA's Claim of Insufficient Evidence The SDA also told the NYSP and media for more than a year that he intended to obtain indictments against Mcinerney, John Brown and others he alleged committed the subject voter fraud, but later said that there was not enough evidence to prosecute them corroborate accomplice testimony, despite the fact that the numerous election documents disclosed by the defense and other substantial evidence provided by the NYSP was more than legally sufficient to do so. The SDA then recently arranged the invalid conviction of Mclnerney, as discussed, and empanelled a special grand jury ostensibly to indict other Democrat officials andlor party workers who he alleged committed the subject voter fraud. It is still unlikely that he will indict or meaningfully prosecute any others. SDA Met with Mclnerney without l\TYSP or FBI before Debriefing Incredibly, the SDA met alone with McInerney and his attorney before he was debriefed by the NYSP and FBI. When he was later debriefed, McInerney apparently failed to
exonerate McDonough or provide any information regarding this wrongful prosecution when debriefed. Therefore, it is known that he did not provide complete information concerning those matters. It is also expected that the supervisory NYSP investigators and FBI Special Agent(s) present are aware of that fact. There are many questions that must be asked and answered concerning the matter. For example: Why did the SDA meet with McInemey before his debriefing? What information about the voter fraud and wrongful prosecution did McInerney not disclose to the NYSP and FBI? Moreover; McInerney previously told Mr. McDonough that he went to the home of the district attorney and talked to him about the subject voter fraud soon after it was first publicly reported. Did he admit that fact to the SDA and when? What, if anything, did Mclnerney tell the district attorney about the massive voter fraud and/or alleged wrongful prosecution at anytime? The defendants have a right to a hearing on the matter. Information Concerning Ex Parte Meeting is Brady Material In any event, the SDA's ex parte meeting with McInerney before his debriefing will obviously be a material issue at trial. Therefore, any knowledge, notes or information he has related to that meeting is clearly Brady material because it must necessarily support the allegations of misconduct or otherwise be favorable to the defense, especially in view of the friendship between the SDA, district attorney and Mcinerney. In conclusion, it appears that the SDA has persistently taken steps to thwart any federal investigation of the subject voter fraud or this alleged wrongful prosecution, continue the 'wrongful prosecution of Mr. McDonough and avoid any meaningful prosecution of those Democrat officials and party workers responsible for the voter fraud. In fact, he still has not meaningfully prosecuted any Democrat official or party worker he alleged were responsible for the massive fraud perpetrated on the voters of the county. Thus; it is hard to imagine how the he could "trivialize a principle of equality which is historically American ... and a fundamental right of all human beings" any more than by arranging the invalid conviction of the person perhaps most responsible for the voter fraud in effort to continue the wrongful prosecution of an elections clerk tapped for prosecution in lieu of those Democrat officials and party workers responsible for the crimes alleged. Perhaps the SDA will now consent to a hearing on the impending motion when made. Respectfully,
A w FIRM PLLC
Y. Curtis Smith, Esq., SDA Michael A. Feit, Esq. Maj. William S. Sprague, Commander, Troop G Capt. Steven G. James, Bureau of Criminal Investigations, Troop G Sr. Inv. Christopher O'Brien, Brunswick Station, BCI FBI, Public Integrity Unit, Attn. SA Julie Mounce
Those applicable provisions of the CPL state, as follows: 1. A criminal action may be commenced in superior court only by the filing of an indictment against a defendant who has never been held by a local criminal court for the action of a grand jury with respect to any charge contained in such indictment. Otherwise, a criminal action may be commenced only in local criminal court by the filing of an information, misdemeanor complaint or felony complaint (CPL 1.20(n (2), (3-a), (8), (16), (17); CPL 100.05). 2. If a defendant charged by felony complaint waives a preliminary hearing, the local criminal court must order him held for action of a grand jury regarding the charge(s) contained therein (CPL 180.30). 3. Once a defendant charged by felony complaint has been held for action of a grand jury, the district attorney must present evidence concerning the same to a grand jury, except where he has waived indictment pursuant to CPL Article 195 (CPL 190.55). 4. A defendant may waive indictment and consent to be prosecuted by SCI in superior court at any time before the filing of an indictment when a local criminal court has held him for action of a grand jury, he is not charged with a Class A felony and the prosecutor consents to the same (CPL 195.10) .. 5. A waiver of indictment must contain, inter alia, each offense to be charged in the SCI to be filed by the prosecutor pursuant to CPL 195.40. The offenses named may include any offense for which a defendant was held for action of a grand jury and . offense properly joinable therewith (pursuant to CPL 200.20 and 200.40). The written waiver must be signed by the defendant in open court in the presence of his attorney and endorsed by the prosecutor (CPL 195.20). 6. When indictment is waived the prosecutor must file a SCI in such court at the time that the waiver is executed (CPL 195.40). 7, An SCI is an accusatory instrument by a prosecutor filed in superior court pursuant to CPL Article 195 and may include any offense for which the defendant was held for action of a grand jury and any properly joinable offense pursuant to CPL 200.20 and 200.40 but shall not include any offense not named in the waiver of indictment. It has the same force and effect as an indictment ... (CPL 200.15). 8. Offenses may be prosecuted in superior court only by indictment ... or an SCI filed by a prosecutor (CPL 210.05; NYS Constitution Article 1, section 6).