RX DatelTime 03/03/2011 13:47

03/03/2011 13:47

518-270-3714

5182703714

RENS COURT CLERK

P.OOl PAGE 01/07

STATE OF NEW YORK SUPREME COURT

COUNTY OF RENSSELAER

PEOPLE OF THE STATE OF NEW YORK

Supplemental AfflITIla1.1on

in Support of Defendant's Motions for Disqualification of Special District Attorney, Dismissal of Indictment" Release of Grand Jury

Minutes, Appointment of Special ~ i~: ... District Attorney and Other Reliet= "": :~'l i?·'

~; . :_:',;'~ .~. t~:, :

----------------------------------------------------------~~~.,

- against.

EDWARD McDONOUGH and MICHAEL LoPORTO,

Defendants.

•

Brian D. Premc.an attorney duly licensed to practice law in the courts ofN~

York, under the penalties of perjury, affirms and states as follows: ~

_n.",

'.

" "',1: " 'r

.,' .. ':' ...

l" .'. ·."

1.

I represent defendant Edward G. MCDonough regarding this matter.

2. I respectfully submit this affirmation in supplement of defendant Mclronough's Notice of Motions dated February 24, 2011, for Orders of the Court disqualifying the Special District Attorney ("SDA"), dismissing the Indictment and granting other relief based upon the newly discovered evidentiary facts submitted herewith.

3. This affirmation is made upon information and belief, the sources and grounds of which are the affidavit of Robert Martiniano dated March 1,2011; documents disclosed by the SDA, including certain New York State Police ("NYSP") records; the prior supporting affidavit of Mcflonough; documents obtained from the Rensselaer County Board of Elections ("BOE"); documents and papers contained within the file maintained regarding this matter; and personal conversations had with MCDonough, theSDA and/o:r others; and upon personal knowledge, where so stated.

Newly Obtained Testimonial Evidence __

4, On Friday, February 25, 2011, at about 4 p.m., Ro15€ifMartlman,o ("Martiniano") called my office and said that he just read my affirmation in support of McDonough's motions that was published an The Troy Record website and wanted to tell me a few facts that were relevant to the case.

5. I interrupted Martiniano and discussed his rights and status as a potential witness, including, specifically, his right to legal representation and the prospect of being subpoenaed to testify at trial or other proceedings, depending upon his disclosure. In response, Martiniano said that he had already talked with an attorney and I asked that he s~ate the facts he wanted to disclose in general terms only.

6. In substance, Martiniano said that he had participated with, the other Democrat candidates and party workers in obtaining applications for absentee ballots ("AAB") from.

1

RX Date/Time 03/03/2011 13:47

03/03/2011 13:47

518-270-3714

5182703714

RENS COURT CLERK

P.002 PAGE 02/07

voters for the 2009 Working Families Party (WFP) primary election and had. expected that the police or prosecutor would contact him. about his knowledge of the matter but that it now made sense to him why they did not. He stated that on the Saturday before the September 15, 2'009 primary, he and other. candidates and party workers canvassed some public housing residences in Troy to obtain AAB. He and the others were told that the absentee ballots ("AB") issued on the AAB obtained would be brought to the voters that same Monday. Later, he gave John Brown the six (6) AAB that he and Michael LoPorta obtained in the Fallon 'and Martin Luther King Apartments and Brown said that he was going to take them and copy the voter signatures onto their respective AB. When Martiniano called William Mclnemey about the comm.ent he was told not to worry,

because all of "them" would be going to him. '

7 _ I then interrupted Martiniano and he, agreed to give a sworn statement about his

knowledge of any relevant information.

8. Subsequently, on Tuesday, March 1, 2011, Martiniano met with licensed investigator Michael Alvero and gave 'a tape recorded sworn oral statement. A copy of the transcript of the taped statement will be provided when obtained, He also provided an affidavit containing the substance of his tape recorded sworn oral statement, a copy of which is attached as Exhibit A.

Relevant Facts re Newly Obtained Testimonial Evidence Show the Alleged Misconduct and Conflicting Interest of SDA

NYSP Assisted SDA in his Investigation

9. On October 14,2009, the: NYSP agreed to assist the SDA investigate the matter,

Identity and Partici:6ation of Martiniano Known to SDA on November 13,2009

10. The SDA knew soon after his appointment that Martiniano was one of the Democrat candidates who personally participated in the activity that he has publicly called "the massive voter fraud perpetrated on the citizens of Rensselaer County", i.e. obtaining the subject AAB from WFP voters, some of which where later forged.

11. It is indisputable that the SDA knew Martiniano was at least a witness to relevant facts by the latest on November 13, 2009, when Democrat worker Tom Aldrich gave a. written, statement to the NYSP that included the names of the all the candidates and party workers who met at Griswold Heights on September 12, 2009, to obtain WFP ~oter AAB, including: Mclnerney, Lol'orto, Campana, Brown, DeFiglio and Martiniano. In his statement, Aldrich also mentioned Dan Brown as being involved in obtaining AAB that day. A copy of the statement is attached as Exhibit B.

12. In assisting the SDA, NYSP investigators, including those from its Major Crimes Unit contacted every Democrat candidate and worker mentioned whose identity was or became known to them in an. attempt to obtain a statement from them, with the singular exception of Martiniano.

2

RX Date/Time 03/03/2011 13:47

03/03/2011 13:47

518-270-3714

5182703714

RENS COURT CLERK

P.OO;:S PAGE 03/07

13. Notably, as discussed below, the NYSP Major Crimes Unit is a nationally recognized elite squad that stands second to none in its accomplishments, ability, training, resources and diligence in the investigation of violent and other major crimes.

McGrath Again Identifies Martiniano as Participant on March 29,2010

14. The SOA was again informed on March 29, 2010 that Martiniano was a prospective witness who had participated in obtaining the subject AAB when Kevin McGrath gave his statement to the NYSP and named Rick Mason, Edward Mclfonough, Tom Aldrich, Dan Brown, Marc Welch, Clem Campana.: LoPorto, Gary Galuski and Martiniano as being involved in the matter (although he did not mention Mike Leonard). A copy of McGrath's written statement is attached as Exhibit C.

15. Still, the SDA did not contact or request that the NYSP contact Martiniano any time after he was yet again disclosed as a participant in activities directly related to the "massive fraud perpetrated on the citizens of Rensselaer County", despite the fact that every other potential participant or witness was contacted.

Important Questions Raised Reflect Conflict of Interests. Improper Prosecutorial Misconduct and Appearances of Impropriety in Investigation and Prosecution

16. How did the SDA come to the conclusion that Martiniano was not. directly involved in the commission of the crime or that there simply was no other reason to contact him, even as a potential witness? Did the SDA just assume that Martiniano had no involvement and that there was no other reason to contact him even. though he was at the very least a potential witness to facts relevant to a fraud so massive, so contrary to our fundamental rights and so important to solve that it required the assistance of the NYSP Major Crimes Unit to ensure that every other potential participant/witness was contacted?

1 7. These important questions and others raise several significant factual and legal issues that must be addressed by the Court at 1'1ti5 stage of the proceedings to ensure that the fundamental Constitutional rights of McOonough are not further violated by a continued baseless prosecution.

18. Paramount among those important questions is perhaps the most self-evident in its answer when considering the true nature of the investigation and prosecution: Why did the SDA not contact Martiniano to at least determine what, .if any, important evidence or information he could provide concerning such a major crime? What motive, if any, did the SDA have not to contact only Martiniano?

19, Yet again, it appears that the indisputable facts when unclouded by any pretense

dictate the answer to those questions, as discussed in. support of Mcfronough's motions.

SDNs Claims re Nature and Scope of Investigation

20. The SDA proclaimed in his improper, prejudicial and self-serving press release that «given the extent of the fraud and the need for investigation" he asked for and obtained the assistance of the NYSP on October 14, 2009, and thereafter "together with the State Police, 1 have followed this case where the evidence has led us .i.and even the

3

RX DatelTime 03/03/2011 13:47

03/03/2011 13:47

518-270-3714

5182703714

RENS COURT CLERK

P.004 PAGE 04/07

evidence of those who have cooperated must be viewed critically in this search fot the truth. While some have admitted very limited responsibility ... Much of the truth of what happened was clouded when this investigation began. The hard work, diligence and patience of many have brought a good measure of clarity to the facts. It has been my privilege to work ... with one of the most competent police agencies in the country ... J would like to specifically thank ... Inv. Albro Fancher of the Troop G Major Crimes Unit, who coordinated the interviews of the voters and other witnesses} and who conducted many of those interviews personally; and Inv. Ogden of the Brunswick substation who among many other tasks poured over the documentary evidence and discerned patterns in the evidence which led to the indictment.; "

21. A chronological summary of the NYSP investigation efforts is contained in the NYSP Abbreviated Lead Logs, Lead Log and Lead Instructions and Lead Results that are attached as Exhibit D.

22. In fact, the NYSP Lead Sheets show that Inv. Ogden worked most closely with the SDA and that it was he who contacted and interviewed or attempted to interview everyone of the Democrat candidates and party workers who participated in any way with campaign activities regarding the WFP primary election campaign. except Martiniano, the only one of all those people who either could or would provide testimonial evidence directly incriminating Brown and Mclnerney.

All Party Wor.kers Contacted

23. At the direction of the SDA, Inv. Ogden contacted and interviewed or attempted to interview all of the WFP and Democrat workers who were involved in the matter or potential witnesses to any fact: i.e. Mclnerney, Sara Couch, Brant Caird, Jim. Welch, Tom. Aldrich, Anthony DeFiglio, Rick Mason, Mike Leonard (Justice Mctlrath's brother-inlaw) and Dan Brown. See, Exhibit D.

24. As a footnote, on the NYSP Abbreviated Lead Log (No. 73) the lead instruction was to "interview (Michael) Leonard" but on the NYSP Lead Instruction and Lead Result sheet there is no correlated entry for that interview, i.e. No. 73 is omitted.

All Democrat Candidates Contacted

25. At the direction of the SDA, Inv, Ogden contacted and interviewed or attempted to interview all of Democrat candidates, other than Martiniano, involved in the matter or potential witnesses to any fact: i.e. Brown: McGrath, Campana, Galuski, and LoPorta. See, Exhibit D.

26. As previously stated, all of the Democrat candidates and many of the party workers contacted at least initially refused to talk to Inv, Ogden (although McGrath and several other candidates later agreed to be interviewed after being given the benefits of a Cooperation Agreement or other assurances of non-prejudice thereby).

4

RX DatelTime 03/03/2011 13:47

03/03/2011 13:47

518-270-3714

5162703714

RENS COURT CLERK

P.005 PAGE 05/07

All Board of Elections Employees and Other Potential Witnesses Contacted

27. Inv, Ogden contacted and interviewed all of employees of the Board of Elections, the Troy City Clerk's office and any other potential witness whose identity was known. See, Exhibit D.

28. In fact, as previously discussed, Inv. Ogden interviewed McDonough twice and waspresent at the end of the SDA's meeting with McDonough. McDonough is' the only person who was "interviewed" three (3) times and targeted for prosecution early in the investigation, despite the lack of any accusation or evidence implicating him before then.

29. In sum, at the direction of the SDA, it is indisputable that the NYSP contacted everY Democrat candidate, party worker, and other prospective witness in conducting the criminal investigation of the "massive fraud", except Martiniano.

Matter of Significant Public Interest

30. The SDA has publicly decried that as a result of the massive fraud "of course, more than just individuals were victimized in this case. In this country, it is a fundamental and self-evident truth that all men are created equal. . .. ' Anyone who misappropriates the vote of a fellow citizen takes/rom all of us. Anyone who attempts to minimize what happened by saying that 'this has been going on for years' or 'their vote doesn't matter I trivializes 'a principle 0/ equality which is historically American and, as' our Founders believed, a fundamental right of all human beings,"

31. It is conceded and there can, be no doubt that this truly is a case of significant

public interest which 111Ust be properly investigated and prosecuted, blindly and justly,

32. There is also no doubt that the conduct of the investigation and prosecution implicates and trivializes a principle of equality which is historically American and, as our Founders believed a fundamental right of all human beings, i.e, tile fundamental Constitutional rights of McDonough to due process. There can be no more important right of all human beings than personal liberty, freedom and justice,

33. How then, did it happen that the one person of all who participated in that activity in question or was otherwise a witness to relevant facts who also happens to be the only one to incriminate Brown and McInerney by their alleged admissions comes to be the one and only person of dozens who is, not even contacted by the SDA in his investigation of the matter? Did the SDA instruct the NYSP not to contact Martiniano? Is this yet another enigma, concerning the investigation that is to be explained as sheer happenstance or mistake? Could it all be just a matter of coincidence? Or, did the SDA intentionally fail to obtain his statement in effort to protect Brown and Mclnerney from prosecution?

Martiniano Testimonial Evidence is the Missing Link to Brown and McInerney

34. As stated, Martiniano is the only person known who could and would link Brown, and. Mclnerney to the voluminous other testimonial and documentary evidence by direct personal admissions. Therefore, he is au 'evidentiary link that appears to have been

5

RX DatelTlme 03/03/2011 13:47

03/03/2011 13:47

518-270-3714

51B 270 3714

RENS COURT CLERK

P.006 PAGE 05/07

intentionally missed in the extensive investigation conducted over more than a one (1) year period. How did the SDA miss that one person for more than one (1) year?

35. It is important to realize that Martiniano was called by a newspaper reporter only one (1) or two (2) weeks after the subject primary election well before any criminal investigation began. See, Martiniano affidavit. Is it to be believed that the SDA did not realize what the newspaper reporter did even before the criminal investigation with the resources of the NYSP was begun, i.e. that Martiniano was a candidate and potential witness to be 'contacted?

Failure to Contact Martiniano or Request that Grand Jury Call Him as a Witness in Response to McDonough's CPL 190.50(5) Request

36. Furthermore, although it was unknown at the time what, if any, testimonial evidence Martiniano or any other prospective witness could or would give" armed with the knowledge that he is innocent and improperly targeted for prosecution in lieu of those responsible, McDonough blindly demanded that the SDA inform the GJ of his request that all Democrat candidates and party workers known to be involved (that were not known to have testified) be called as witnesses to testify, including Martiniano. '

37. Interestingly, in response, the SDA wrongly suggested that it was McDonough's responsibility to have all such witnesses present and ready to testify, contrary to the specific and practical dictates of the applicable provisions of the eLP. A copy of the self-explanatory letters concerning the same are attached Exhibit E-

38. In any event, although it is not presently known what, if anything, the SDA said to the GJ regarding that request, two facts are known: (1) he still did not contact Martiniano after the request, and (2) he did not call him. to testify before the OJ.

SOA Personal Relationships and Appearances ofImpropdety'

39. Obviously, Brown and Mclnerney knew about the nature and significance of Martiniano's testimonial evidence. Also, Martiniano never talked to the SDA or police and has no influence over them.

40. On the other hand, it is known that Mclnerney is a personal friend of DA McNally. It is known that DA McNally is a personal friend of the SDA. It is known that the SDA talked to DA McNally about the case on a number of occasions. And, it is known that DA McNally has talked to Mclnerney about a matter related to the case.

Did the SDA Intentionally A void the Missing Link?

41. Therefore, under the circumstances, it is reasonable to conclude that the SDA's failure to contact Martinianc was an intentional act in furtherance of his conflicting personal and political interest that has violated McDonough's due process rights and presents the appearance of impropriety.

6

RX naterrme 03/03/2011 13:47

03/03/2011 13:47

518-270-3714

5162703714

RENS COURT CLERK

P.007 PAGE 07/07

SDA Resignation ~ Integrity of Prosecution

42. It is respectfully submitted that the papers in support of McDonough's motion establish that the SDA targeted McDonough for prosecution in lieu of those shown by the substantial evidence to be responsible for the alleged crimes.

43. Now, it appears that the SDA has failed, if not intentionally refused, to obtain the testimonial evidence of a key witness that directly connects the two persons that he has failed to prosecute directly to commission of the alleged massive voter fraud.

44, .It is McDonough's concern that when this information becomes know the conflicting interests of the SDA and others may cause false accusations and/or evidence to be presented against him in rerum for immunity from prosecution or other benefit.

45. Unless the SDA is removed, this case will be as much about his condu.ct and local politics as the administration 'of justice and. the quest for the truth. The SDA has, in. fact, by his conduct trivialized McDonough's fundamental constitutional rights.

46. Therefore, in the interests of justice, McDonough now calls upon the SDA to do

justice by resigning from the prosecution of the case at this time .

. WHEREFORE, defendant Mcfronough respectfully moves for Orders of this Court granting the relief requested in the Notice of Motion, together with such other and further relief as the Court deems just and proper, including leave to renew said motions upon any information or other grounds not now reasonably apparent to the defendant.

Dated: March 2,2011

PREMO LAW FIRM, PLLC

-BI'iallIi.PreIIEsq.

Attorney for Defendant Mcfronough 20 Corporate Woods Boulevard Albany, N. Y. 12211

Phone: (518) 436-8000-

To: Special District Attorney Trey Sm.ith, Esq.

Smith Hernandez, LLC Rensselaer Technology Park 105 Jordan Road

Troy. New York 12180-8376

7