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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF PUTNAM
x

THE PEOPLE OF THE STATE OF NEW YORK

-against-

MARIO CARUSO,
Defendant.

20 County Center Carmel, New York November 1, 2011

BEFORE:

HON.

ALBERT LORENZO,

Justice of the Supreme Court

Testimony of Gerald A. Schramek

^ m - o w t w wwII f ji*inwnfirf|>ww.gH.,i*iwny*,.n

Mary C. Traynor Senior Court Reporter

1
APPEARANCES

ADAM LEVY, ESQ.

Putnam County District Attorney

Attorney for the People


40 Gleneida Avenue

Carmel, New York 10512


BY: CHANA KRAUS, ESQ.

MANCUSO, RUBIN & FUFIDIO, ESQS

Attorneys for the Defendant


One North Broadway

White Plains, New York 10601


BY: ANDREW A.
AND:

RUBIN, ESQ.

SPAIN & SPAIN, ESQS.

671 Route 6, Suite 1 Mahopac, New York 10541


BY: COMPTON SPAIN, ESQ.

CALLAHAN & FUSCO, LLC Attorneys for Putnam County

40 Exchange Place
18th Floor

New York, New York 10005


BY: CHRISTOPHER G. FUSCO, ESQ.

WILLIAM G. SAYEGH, P.C. Attorney for the

The Sayeoh Building


65 Gleneida Avenue

Carmel, New York 10512 BY: KENNETH S. RONES, ESQ.

oOo

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

MR.

RUBIN:

Chief Schramek,

your Honor.

(Witness took the stand.)

THE COURT OFFICER:

Do you swear the

5
6

evidence you are about to give in the matter


before this Court will be the truth, the whole

7
8

truth and nothing but the truth, so help you God?


THE WITNESS: I do.

THE COURT OFFICER:

State your name,

10

spell your last name and your County of residence,

11 12 13
14
15 16 DIRECT EXAMINATION BY MR. RUBIN:

THE WITNESS: S-C-H-R-A-M-E-K. County.


THE COURT:

A period Gerald Schramek,

County of residence is Putnam

Please be seated, Chief.

17

Q.

Good afternoon, Chief Schramek.

18
19

Chief, when did you become -- are you familiar


with the Mario Caruso matter?

20
21

A.
with.

Somewhat.

The original case I am not familiar

22

Q.

When did you become involved with Mr. Caruso?

23

A.

Past, I would say the past two or three months.

24

Q.

Were you, if I pinpoint the time of late July,

25

early August, is that a fair estimate of when you may


11/1/11

1
2
3

A.G. SCHRAMEK - DIRECT - MR. ROBIN


have become involved in terms of Mr.
A. Possibly, yes.

Caruso's case?

4 5
6
7

Q.

Could you pinpoint an event that caused you to

become involved with, I'm using word involved, I can't


think of a better word, with Mr. Caruso?

Was there some events that occurred?

8
9

Let me get more specific.

Did you become

involved when there was some information provided by

10
11

probation or the Sheriff's Department that Mr. Caruso


was living at his own residence?

12
13

A.
Q.

I got involved actually after that, sir.


How long after that?

14
15

A.
after

I would merely,
that.

a guess, maybe about a month

16
17

Q.

Are you aware that the Sheriff's Department set

up surveillance of Mr. Caruso in the days following

18
19
20

August 4th,
A.
Q.

2011?
sir, I am.

Yes,

Were you at all involved in supervising that

21
22

part of the investigation?


A. Yes.

23
24

Q.

So that were you present at a meeting with the

District Attorney's Office and Probation Department,

25

possibly the Carmel Police Department, regarding Mr.


-11/1/11-

1 2
Caruso?
A.

A.G.

SCHRAMEK

DIRECT

MR.

RUBIN

3 4

Yes

, sir,
ask

I was.
the date

Q.
A.

May I
I

of that meeting?

think

it
MS.

was

on

or about August 4th.


August 4th.
2011.

6
7 8
9 Q.
On
or a

KRAUS:

bout August 4,

Now,

at

that meeting were there discussions


to do with
from

regardi ng

w hat

Mr.

Caruso

as

result

of

10

information
Whittak er?
A.
Yes

received

a man by the name of Mr.

11 12 13 14
15

sir.
was

Q.
that
A.

And

any arrest made

of

Mr.

Caruso

based

on

in formation

made by Mr.

Whittaker?

No,
Was

sir any

16 17
18

Q.

violation

filed

as

result

of

the

informa tion
A.

received by Mr . Whittaker?
by the Sheriff 's Department,
that

Not

sir.

19 20 21
to
of

Q. be

At

point in time did you cause surveill ance of Mr. Caruso's whereabouts for a period

conducted

time?

22

A.

Yes,

sir.

23
24 25

Q.

And did you have undercover police officers

conducting that surveillance?


A. Yes, sir.

11/1/11

A.G. SCHRAMEK -

DIRECT - MR. RUBIN

2
3

Q.
A.

These were officers trained in surveillance?


Yes, sir.

4
5

Q.

Officers who actually worked in narcotics

surveillance?

A.

That's correct,

sir.

Q.

Their job was to keep an eye on Mr. Caruso, make

8
9

sure that he was doing what he was supposed to be doing?


A. Yes, sir.

10

Q.

In fact, he was doing what he was supposed to be

11
12
13

doing during the point in time that the surveillances


were being conducted?
A. That's correct.

14
15

Q.

About how long a period of time did the


last?

surveillances

16
17

A.
weeks.

Sporadically done and I would say lasted a few

18

Q.

So it was done,

when you say sporadically, would

19 20
21

it be fair to say that it was done randomly over a several-week period?


A. Yes, sir.

22

Q.

There wasn't any particular timetable that any

23
24
25

of your officers were using to watch Mr. Caruso, they


would watch him various hours of the day,
watch him or his residence,

they would

to make sure that he wasn't

11/1/11

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

2
3

going to his residence?


A. Yes, sir.

Q.

To make sure he was

also to make sure that he

5
6
7

hasn't been going other places he shouldn't be going?


A. Primarily the assignment was to check out his
residence so

residence and check out the area around his

that he was in compliance with the Order of Protection.

9
10
11

Q.

He appeared to be in compliance when your

officers were observing him?


A. That is correct.

12
13

Q.
of 2011.

Now,

I wanted to go forward until September 26th

14

Did you cause an affidavit to be submitted to

15
16

this Court regarding, regarding Mr. Caruso?


A. Yes, sir.

17
18

Q.
A.

And who asked you to do that?


It was a result of a conversation, conference

19
20

that I had with Sheriff Smith and Captain McNamara.


Q. What was that -- withdrawn.

21
22
23

Have you ever submitted an affidavit before in


any criminal case that you are aware of?
A. Not that I can recall.

24

Q.

Do you know whether or not the request to review

25

this and submit the affidavit was made by counsel to the


-11/1/11-

1
2

A.G. SCHRAMEK Sheriff's Department?

DIRECT - MR.

RUBIN

A.

Not to my knowledge.

4
5
6

Q.

So, do you know what

did either Sheriff Smith

or Captain McNamara tell you why they wanted you to


submit this affidavit?

A.

We sat down,

had a meeting,

discussed the

8
9

affidavit and for clarification purposes for the Court


we felt it was a prudent thing to do.

10

Q.

When you say "for clarification purposes", were

11
12

you responding to an affidavit that was part of a motion


that I filed, an affidavit by Mr. Caruso that was part

13
14

of a motion that I filed seeking modification of this


Order of Protection?

15

A.

It was an affidavit that was filed by the

16
17

District Attorney's Office.


Q. What in that affidavit filed by the District

18

Attorney's Office seemed to concern the Sheriff's

19
20 21

Department to the point where you were told to submit


this rather unique affidavit to the Court? A. We had looked over the paperwork that was filed

22
23

by the DAs office.

We wanted to make absolutely clear

to the Court the Sheriff's Office's position was that in

24
25

fact we agreed with Mrs. Kraus that no victim,


especially the victim of child abuse,
-11/1/11-

should ever be

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

2
3

forced to face their accuser again.


abuser.

I'm sorry,

their

Q.

What I meant,

go on.

5 6

A.

And that the fact,

that the purpose of this

meeting that I attended was to discuss the possible

7
8

violations against Mr. Caruso for failing to register


his name pursuant to law with the sex offender registry

9
10

within a ten-day period and also investigation into


possible violations of the Order of Protection.

11
12

Q.

Now, did you make inquiry,

let me stay on topic,

as far as the affidavit,

what in the affidavit did you

13 14

feel should be responded to? What in Ms. Kraus' affidavit did you feel should

15 16 17 18

be responded to, which caused you to be told to respond? A. We felt that Mrs. Kraus' affidavit may have been

misleading or needed clarification as to our difficulty in performing sex offender registry notification

19 20 21 22
23

throughout the community, as well as what the purpose of, the original intent and purpose of the meeting that we had with the District Attorney's Office and Carmel Police and Probation Department was.
Q. Now, bear with me for a moment.

24

MS. KRAUS:

Objection.

I'm not sure the

25

Chief testified where he got a copy of the

-ii/i/ii-

1
2 3
4

A.G.
response.

SCHRAMEK -

DIRECT - MR. RUBIN

MR.
THE

RUBIN:
COURT:

I was about to ask that.


I'll ask.

5
6
7

Chief, where did you get a copy of the


response?
THE WITNESS: Ms. Kraus' response,

8 9
10
11

THE COURT: through an e-mail?


Q.
A.

Through the internet,

From whom?
Mr. Rones' office.

12
13 14
15

Q.
A. Q.
A.

Okay.

So, now, tell us who Mr. Rones is?

Attorney here in the Town of Carmel. Also an attorney representing


I believe so.

16

Q.

Does he work for the law firm that represents

17
18 19

the Sheriff's Department?


A. Q. He works for the law firm of William Sayegh. Does William Sayegh represent the Sheriff's

20

Department?

21

A.

William Sayegh is the counsel to the sheriff.

22
23

Q.
A.

He's counsel to the Sheriff of Putnam County?


That is correct.

24

Q.

And Mr. Rones is the attorney representing

25

, in possible civil suits against Mr.


11/1/11

10

1
2 Caruso?

A.G. SCHRAMEK - DIRECT - MR. RUBIN

A.

I guess

so.

Q.

Mr. Rones is the person who e-mailed you the

5
6

appropriate papers that have been submitted in this


criminal case to the Sheriff's Department; correct?

7
8
9

A.

To the best of my recollection it was his office

that e-mailed me a copy of the affidavit that was


supplied by Ms. Kraus.

10
11 Mr.

Q.

Did you have a copy of the affidavit supplied by

Caruso?

12

A.

No.

13
14

q.

Didn't you respond in your affidavit to Mr.

Caruso's affidavit that you submitted to the Court on

15
16

September the, sworn September 23rd.


submitted September 26th.

I believe it was

17
18
19

Do you recall responding to Mr. Caruso's


affidavit in your affidavit?
A. That language, yes.

20

Q.

What do you mean,

that language?

21

A.

I do recall that being part of my affidavit.

22
23

Q.

Did you write your affidavit or did somebody

write it for you?

24

A.

Somebody wrote it for me.

25

Q.

Could you tell us who wrote it for you?


11/1/11

11

1
2 A.

A.G. SCHRAMEK - DIRECT - MR. RUBIN


Yes.

Q.

Who?

A.

Captain William McNamara.

5
6
7

Q.

Captain McNamara wrote the affidavit.

You had

read it and you signed it.


A. Right.

8
9

Q.

Did you supply him with information so that he

could write this affidavit for you?

10
11

A.

That came out of the meeting that we had between

the Sheriff, Captain McNamara and me.

12

Q.

The Sheriff, Captain McNamara and yourself had a

13
14
15
16
17

meeting where you went over information sent to you by


' lawyer, so that you could respond to
the Court that is listening to this particular aspect?
THE COURT:
Break it down.

You're getting compound.

18

Q.

You had a meeting with the Sheriff and Captain

19
20

McNamara, in order to respond to certain documents being


submitted to the Court in a criminal case; correct?

21
22

A.
criminal

I'm not certain if it was


case.

in response to a

23
24

Q.

Well,

People against Mario Caruso, is that a


to your knowledge?

criminal case,

25

A.

I don't know if it's an ongoing criminal case.


11/1/11

12

A.G.

SCHRAMEK -

DIRECT -

MR. RUBIN

I thought it was disposed of.

Q.

Were you aware or did anybody make you aware

there was an application first before Judge Rooney,

now

5
6

transferred to Judge Lorenzo, to modify the Order of


Protection in the case?

A.

I knew that,

yes.

8
9
10

Q.

You knew that was an ongoing and somewhat


correct?

contested procedure;
A. Yes, sir.

11
12 13
14

Q.

Now, you received -- did you request a copy of


of the various affidavits, to be sent to

the affidavit, you?


A. I asked

for

the

affidavit

of

Mrs.

Kraus.

15
16
17 18

Q.
Kraus?
A. Rones'

Who informed you there was an affidavit by Mrs.

Mr.

Rones.

believe

it

was

Mr.

Rones.

Mr.

office.

19
20
21

Q.

They informed you that Ms. Kraus submitted an


correct?

affidavit in this particular case;


A. That is correct.

22 23
24

Q.

Did they also inform you Mario Caruso submitted

an affidavit in this particular case?


A. No, sir.

25

Q.

I'm somewhat confused now.


-11/1/11-

There came a point

13

A.G.

SCHRAMEK -

DIRECT - MR. RUBIN

2
3
4

in time when Captain McNamara prepared an affidavit for


you to sign;
A.

correct?

Correct.

5
6

Q.
A.

Did you read it before you signed it?


Yes, sir.

7
8

Q.
Caruso's

In that affidavit do you refer to Mario


--

THE COURT:

We've covered that.

Get

to

10
11

the point.
MR. RUBIN: This is the point. At one

12
13
14

point he says he didn't get it.

At another point
I'm trying

he's apparently saying he did get it.


to find what the situation is.

15

THE COURT:

I'll give you leeway.

Go

16
17
18

on, ask the question.


Q.
A.

Did you ever see Mario Caruso's affidavit?


No, sir.

19
20

Q.

Can you explain -- may I hand up his affidavit?


Can you explain how you responded to Mario

21 22
23

Caruso's affidavit in your affidavit if you've never seen a copy of it?


A. I was told about it.

24

Q.

By whom?

25

A.

Captain McNamara.
-11/1/11-

14

A.G.

SCHRAMEK -

DIRECT - MR. RUBIN

2
3
4

Q.
A.

Do you know how Captain McNamara .obtained it?


No.

Q.
A.

Do you know if Mr. Rones sent one to him?


No.

5
6 7

Q.

Do you know if Mr. Rones had a conversation with

him wherein he delivered it personally?


A. No.

8 9

Q.
read?

You're responding to an affidavit you never

10 11

THE COURT:
your answer.

Now it's sustained.

You got

12
13 14

Q.

Prior to September 26th did you notify Ms. Kraus

you were submitting this affidavit?


A. No, sir.

15
16 17
18

Q.

Did you notify Mr.

Spain or myself you were

submitting this affidavit?


A. No, sir.

19

Q.
put

Did Mr.

Rones tell you you should notify us and

20
21

us on notice? A. No, sir.

22
23
24

Q.
that

So,

basically you were just following orders;

is

correct?

A.

I was following what we feel to be the prudent

25

procedure.

11/1/11

15

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3
4

Q.

When you say "we feel" were you directed to

assist in the preparation of this affidavit?


A. Yes, sir.

Q.

You were directed by your superiors?

6
7

A.

Again, we discussed this in a meeting.

That was

the result of that meeting.

8
9

Q.
A.

Was it your decision?


It was a combination of the three of us.

10
11
12

Q.
A.
Q.

Is Captain McNamara your superior?


No, sir.
correct?

Sheriff is,

13

A.

Absolutely.

14
15

Q.

Did the Sheriff make it clear to you he expected


to be filed?

an affidavit

16
17
18

A.
Q.
this

I'm sorry?
Did the Sheriff make it clear to you he expected
to be filed?

affidavit

19

A.

I wouldn't call it expected, but he thought it

20
21

was the right thing to do.


Q. Did he explain why he thought it was the right

22

thing to do?

23
24 25

A.

Again,

to clarify the position of the Putnam

County Sheriff's Office in relation to this matter. Q. What was the position that you felt needed
11/1/11 -

16

1
2

A.G. SCHRAMEK clarification?

DIRECT - MR. RUBIN

3
4 Ms.

A.

Again, we believe that -- we agree strongly with


affidavit that the victim, abuse victim,

Kraus'

child abuse victim should not have to face their

6
7

attacker and face their abuser, especially in the safety


of their own home.

8
9
10

Q.

Can you explain what jurisdiction the Sheriff's

Department has in determining whether an Order of


Protection is to be issued or modified?

11

A.

No,

I can't.

12
13
14

Q.

And how much input has your department had with


Protection being modified?
know.

Orders of
A.

I don't

15
16

Q.

Have you had any input in other Orders of

Protection?

17 18

A. Q.

As far as issuing Orders of Protection? You can't issue, the Court issues.

19
20

Have you, yourself,

submitted documents to court

in order to get an Order of Protection issued or

21 22
23

modified to a court, submitted a document to a court -let me withdraw and rephrase.


THE COURT: Go ahead.

24

Q.

Have you ever submitted documents to a court

25

before, requesting either, A, Order of Protection or, B,


11/1/11

17

1
2
3

A.G. SCHRAMEK - DIRECT - MR. RUBIN


Order of Protection be modified?
A. Yes, I have.

4
5

Q.
A.

How many?
Number of cases my 31 years.

6
7
8

Q.

Have you ever done an affidavit in response to

the District Attorney's motion?


A. No.

9
10

Q.

Have you done it on affidavit in response to

defense motion?

11

A.

No,

sir.

12

Q.

So this would be the first time you ever put in

13 14

an affidavit in response to motions in a criminal case; would that be fair to say?

15
16

A.
Q.

Something like that, yes.


Now, one other thing.

17
18
19

In your affidavit you state, that it was at a


meeting with ADA Kraus and others where you discussed
his sex offender status and his transient movements,

20
21

right?
A. That is correct.

22

Q.

What do you mean?

23
24
25

A.

That he didn't have a firm residence, he was

living out of a van, going from motel to motel.


Q. Those are not ideal places for level three sex
11/1/11

18

1
2

A.G.

SCHRAMEK - DIRECT - MR. RUBIN


are they?

offender to reside,

A.

No,

sir.

4
5

Q.

There was some concern in your affidavit --

withdrawn.

Was this affidavit being submitted in order to

7
8
9

help influence the Court in making a determination as to


whether or not the Order of Protection should be
modified?

10

A.

I think the affidavit stands on its face in

11
12

that, in that it clarified the position of the Sheriff's


Office for the Court.

13 14
15

Q.

Did anybody ask for the position of the

Sheriff's Department for the Court?


A. I don't know, sir.

16 17
18

Q.

Did Mr. Rones ask that you clarify the position

of the Sheriff's Department?


THE COURT: Now it's sustained. We

19

covered that.

20

Q.

Regarding Mr. Caruso, Mr. Caruso's

21
22

clarification, did you, you meaning the Sheriff's


Department, receive copies of notification of sex

23
24

offender regarding his address?


A. I don't know.

25

Q.

Did you ever do any investigation to see if he


11/1/11-

19

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

2
3

was reporting his places of residence to DCJS?


A. Mr. Caruso?

Q.

Mr.

Caruso,

of course.

5
6

A.
Q.

I believe Investigator Trisanelli (ph.)

did.

Was he reporting his locations of residence to

7
8

DCJS, do you know?


A. I don't know.

9
10

Q.

Did you ever follow up on whether or not -THE COURT: Sustained. He doesn't know

11 12
13

MR. RUBIN:

He put in his affidavit

allegations my client was not reporting as


required.

14
15

THE COURT:
followup result was?

Do you know what the

16

THE WITNESS:

Followup was at one point

17
18

in time it appeared that he did not file as


prescribed by law.

19
20

Q.

Were you able to determine -- I'm sorry, do you

know when that was?

21

A.

I'm sorry?

22

Q.

Do you know when that was?

23
24

A.
Q.

I believe it was in July.


One occasion?

25

A.

One occasion I believe, yes.


-11/1/11-

20

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3
4

Q.

Did you check with the Town of Carmel Police to

find if he had actually reported his residence to the


Town of Carmel?

5
6

A.
Q.

Yes,

we did.

He hadn't?

A.

That's correct,

he didn't.

8
9

Q.

Did you include that in your affidavit being


this case?

submitted in

10

A.

No,

sir.

11
12

q.

you responded to Defendant's affidavit because

Defendant had a complaint that it appeared that the

13
14
15

flyer that was being handed out to community residents


gives the impression that his conviction was for a
recently occurring offense.

16
17

Do you remember responding to that?


a difficult question.

I know it's

18 19
20
21

Flyers were handed out to the community informing them there was a level three sex offender
living at various different addresses; correct?
A. That's correct.

22

Q.

This was, to your knowledge, was this causing

23
24
25

him a problem finding a place to live, particularly in a


motel?
A. That is correct.

-11/1/11

21

A.G. SCHRAMEK - DIRECT - MR. RUBIN

Q.

You're aware one of Mr. Caruso's complaints was

3
4

that the flyer made it appear that he had recently


committed these offenses?

A.

I wasn't aware of that complaint.

6
7
8

Q.

You signed and swore to this affidavit submitted

on August the 23rd?


A. That is correct, sir.

9
10

Q.
follows:

In your affidavit do you recall stating as


In Defendant's affidavit dated August 2nd,

11
12
13
14

2011, he avers sometime on or about 6/15/11 to 6/21/11


Putnam County Sheriff's Department deputies circulated a
flyer blanketing the area informing the neighbors I was
a level three violent sex offender and that the crime

15
16
17
18

had happened recently.

Then it says see Defendant's


In point

affidavit at, I believe it's paragraph five.

of fact Sheriff's Office did not inform anyone about


when Defendant's crime had been committed, rather the

19
20

community flyer disseminated, set forth Defendant's


conviction, in this case a copy of the flyer is annexed

21
22
23

here to as Exhibit A, do you recall swearing to that as


part of your affidavit?
A. Yes, sir.

24
25

Q.

Would it be fair to say that at that time you

were aware that one of his complaints was that it


11/1/11-

22

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3

appeared as though the crimes had been recently


committed?

4
5

A.

I was told that by Captain McNamara, but I did

not see the complaint.

Q.

You never saw this affidavit?

A.

Mr. Caruso's affidavit?

I did not.

No, sir.

8
9

Q.

You responded because you were told by Captain

McNamara?

10
11 it.

THE COURT:

Sustain that.

We covered

12
13
14

Q.
A.
Q.

Who was your affidavit provided to?


After I signed it?
Yes.

15

A.

Captain McNamara.

16
17

Q.
A.

Do you know what he did with it?


No, sir.

18
19
20
21

Q.

Do you know whether or not it was provided by

Captain McNamara to Mr. Rones?


THE COURT:
from there?

You don't

know where it went

22

THE WITNESS:

No,

sir.

I don't.

23
24
25

Q.
this
A.

Did you expect it would somehow makes its way to


Court?
Yes.

-11/1/11-

23

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3

Q.
Order of

You did not arrest Mr. Caruso for violating the


Protection in 2011?

A.

No,

sir.

Q.

You did not have cause for him being arrested

6
7
8

for violating the Order of Protection at any time since


August 4, 2011?
A. No, sir.

9
10 11
12
13

Q.

Were you made aware by Sheriff Smith or Captain

McNamara there was a court proceeding scheduled for September 26th of 2011, regarding Mr. Caruso's case?
A. Can you ask the question again?
THE COURT: Rephrase.

14
15 16
17

Q.

Were you made aware either by Captain McNamara

or Sheriff Smith that there was a court appearance being schedule for Mr.
A. I don't

Caruso's case for September 26,


recall.

2011?

18

Q.

Your affidavit was signed September 23rd,

which

19 20
21

is a Friday.

I'm telling -THE COURT:


MR. RUBIN:

Date speaks for itself.


The next working day is the

22

26th,

which is the following Monday.

23
24 2 3rd.

THE COURT:

Actually September 20 what,

25

MR.

RUBIN:

September 23rd,

Friday.

-11/1/11-

24

1
2

A.G.

SCHRAMEK
THE

DIRECT

MR.

RUBIN
the calendar on

COURT:

Accordi ng

to

3 4

this

desk.
MR.

RUBIN:

Septemb er 26th is that

5 6
7 8
for

Monday.

Q.
the

Did Captain McNamara tell y ou it was important


affidav it

to be signed for any particular

reason?

A.

Again,

for clarification for the Court,


Kraus' affidavit.

in

10
11 12 13 14
15 16 17
18

response to Ms.

Q.

Not in response to Mr. Caruso's affidavit?


THE COURT: Sustained. We covered that.

Q.

Did you have any personal discussion with Mr.

Rones or anyone else in the law firm regarding filing of


this affidavit?

A.

Other than Mr.

Rones

or his

office?

I believe

it was Mr.
that Ms.

Rones who originally called me to tell me

Kraus had filed her affidavit and mentioned my


Other than that, no.

19 20
21 22 23
24

name in it.

Q.

It was at this time that you said that you were

asked to prepared the affidavit by him?


A. No.

Q.
A.

He just informed you?


Yes, sir.

25

Q.

Did you bring that to the attention of your


11/1/11

25

A.G.

SCHRAMEK -

DIRECT -

MR. RUBIN

2
3

superiors?
A. Yes.

4
5
6

Q.

They told you to submit this affidavit in

response?
THE COURT: Sustained.

7
8 question.

MR.

RUBIN:

I may have asked this

THE COURT:

I'll let you know.

10

MR. RUBIN:

I'm sure you will.

11

Q.

Does your office maintain a record of

12
13
14
15

notification responses to DCJS made by sex offenders who


are required to notify DCJS?
THE COURT:
THE WITNESS:

Do you understand that?


No, sir.

16

THE COURT:

Clarify.

17
18

Q.
their

Sex offenders are required to notify DCJS of


residences?

19

A.

Yes.

20

Q.

Does the Sheriff's Department receive

21
22
23

notification regarding location of these sex offenders


who register?
A. Yes, sir.

24
25

Q.
A.

Did you receive that in this particular case?


I don't know.

-11/1/11

26

A.G.

SCHRAMEK

DIRECT

MR.

RUBIN

2 3 4

Q.
looked
Caruso' A.

From August 4th to today's date,

have you ever

to see if there were any from DCJS regarding Mr.


s registration?
There was an affidavit from DCJS.

6
7 8

Q.
A.

That

he

said what?

They had not received any notification of Mr.


whereabouts.

Caruso' s

9 10 11
12

Q.
A.

Any particular date?


I would have to refer back to the case folder.

Q.
A.

Do you have the case folder?

Yeah,

I have a copy.

13 14
15

Q.
A.

Do you have the case folder?


Yes, sir.

Q.

Can you refer to it?

16 17
18

THE COURT:
THE WITNESS:

Did you find it,


Yes.

Chief?

Q.
A.

Did you answer that,

Chief?

19
20

According to the documents, review of this file


Mr. Caruso notified DCJS his address,
file indicates that Mr.

indicat es

Heidi

21
22 23

Motel,

review of this

Caruso

notifie d

DCJS that his address was Heidi Motel,

Route

22, room 12, Brewster, New York, 10509, on sex offender


change of address form dated 6/29/11,
sex off ender

24 25

certified copy of

change of address form is attached.


11/1/11

DCJS

27

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3

has not received any subsequent change of address from


Mr. Caruso.

4
5

Q.
A.

What is the date of that form, that affidavit?


8th day of September, 2011.

6
7

Q.

Did you check the Sheriff's Department records


regarding

to see if there was notification from DCJS,

8
9
10

change of address, besides that affidavit you obtained


from -- where did you obtain that affidavit?
A. No, sir.

11

Q.

Besides that one affidavit did you check to see

12
13

if there was any notifications of change of address?


A. Yes.

14
15

Q.
that?

With whom?

Does your department have copies of

16

A.

We have it in this file.

17

Q.

Sex offender change of address form for Mr.

18
19
20

Caruso that was apparently taken by the Town of Carmel


Police Department, when, August 2nd, 2011?
A. August 2nd, 2011.

21
22

Q.
A.

Do you know who obtained these documents?


Obtained them?

23

Q.

For the Sheriff's Department.

24
25

A.
Q.

I would say it would be Investigator Trisanelli.


You didn't search your own, to see if there were
-11/1/11-

28

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

other notifications

from DCJS regarding Mr.

Caruso

filing a change of address?

A.

These are the only records that I am aware of.

Q.

Are you aware he notified Probation and the

6
7

Carmel Police of every change of address that he had?


A. I don't know if he notified every change.

8
9
10

Q.
A.
Q.

More than one occasion you're reading there?


One occasion, yes.

How about the Probation Department?

11

A.

Probation Department, that he had gone in and

12
13
14 15

spoke to his probation officer and let them know where


he was staying.
Q. A. At all times, correct, as far as you know? but as far as I know.

I don't know all times,

16
17
18

MR.

RUBIN:

No other questions.
Anything?
Yes.

THE COURT:
MS. KRAUS:

19
20

CROSS-EXAMINATION
BY MS. KRAUS:

21

Q.

Good afternoon,

Chief.

How are you?

22

A.

Good.

How are you?

23
24
25

Q.

Very well.

How long have you been with the

Sheriff's
A.

Department?
2003.

Since

11/1/11-

29

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3

Q.

How many men do you have working for you in the

Bureau of Criminal Investigations?

A.

Oh,

boy.

Approximately 20.

Q.

You are basically their boss; is that correct?

A.

I'm Commanding Officer Bureau of Internal

7
8

Criminal Investigations Unit, Narcotics Enforcement and


Identification Units.

9 10
11

Q.

Your office works very closely on various

matters with the District Attorney's office; is that


correct?

12

A.

Absolutely.

13

Q.

Often you will call the District Attorney's

14
15 16

Office during an investigation, during criminal matters;


is that A. correct? Yes.

17

Q.

In this situation when you received a copy of

18 19
20

you indicated that you had submitted an affirmation in response to the District Attorney's notice of motion?
A. That is correct.

21

Q.

You testified you submitted a response,

22
23

testified to what you agreed to within that motion?


A. That is correct.

24 25

Q.

I did not hear and perhaps I missed it, what did

you disagree with specifically in the District


-11/1/11-

30

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

2
3

Attorney's motion that caused you to make that


affirmation?

4
5

A.
needed

What
--

I needed was

clarification.

What we

6
7
8

Q.

Question,

I'm sorry, Chief,

I want to make this

as quick as possible for the Court.


THE COURT: Go ahead. Be careful

interrupting him.

10
11

A.

The fact that the meeting that we had at your


focus on the transient movement of Mr.

office did not

12

Caruso as it did the investigations at hand.

13
14
15

Q.

Investigation being that your office had

information that he had failed to register; is that


correct?

16
17

A.

That,

as well as any kind of report that he

violated the Order of Protection.

18

Q.

We'll get back to that.

19

Going back to the affirmation, move onto the

20
21
22
23

meeting, in all your years since 2003 had you ever


submitted an.affirmation to clarify the District
Attorney's motion?
A. No.

24 25

Q.

Prior to submitting that affirmation, had you

called the District Attorney's Office to speak with


-11/1/11

31

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3

anybody in regards to your concern about that motion?


A. No, ma'am.

4
5
6

Q.

And normally have you ever testified in a

criminal proceeding before or at a hearing?


A. Yes, ma'am.

7
8

Q.
A.

Or Grand Jury?
Yes, ma'am.

9
10

Q.

Normally when you testify at a hearing,

who

would prepare your testimony with you?

11
12

A.
Q.

Usually the District Attorney's Office.


In this matter who prepared your testimony?

13
14

A.

My testimony was given based on the affidavit

that I signed.

15
16
17

Q.

Who sat with you and prepared your testimony

with you?
THE COURT: Question is?

18
19
20

Q.

Did anybody,

I apologize,

did anybody sit with

you to discuss your testimony before coming to court


here today?

21

A.

No.

Other than Captain McNamara,

the Sheriff,

22
23
24

the meeting that I had with those two, myself, again,


that's what was the result of that meeting.
no further discussions after that.

There were

25

Q.

Have you met outside legal counsel other than

11/1/11

32

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3 4

the District Attorney's Office prior to testifying here


today? A. I spoke to, yes.

5
6
7

Q.

The meetings that we've been discussing on or


is that correct?

about August 4th;


A. Yes,

ma'am.

8
9

Q.
A.

You were present at that meeting; correct?


Yes, ma'am.

10
11
12

Q.
present?
A.

Senior Investigator Patrick Castaldo was

That's

correct.

13

Q.

In fact, do you recall at some point Senior

14 15
16
17

Investigator Castaldo had to leave that meeting.

He

received a phone call from Mr. Whittaker that Mario


Caruso is back in his home;
A. I don't recall that.

is that correct?

18 19
20 21

Q.

Do you recall at some point close proximity in received a call

time Senior Investigator Castaldo (ph.),


from Mr. home?

Whittaker that Mario Caruso was back in his

22 23
24

THE COURT: message like that?


THE WITNESS:

Do you recall any kind of

No,

I don't.

25

Q.

Did senior Investigator Castaldo ever personally


-11/1/11-

33

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

2
3
4

go to confirm whether. Mario Caruso was in his home or


not in August?
A. I don't know.

Q.

Investigator Trisanelli was present at that

6
7

August meeting?
A. Yes.

8
9

Q.
A.

Investigator Nalbone (ph.)?


I'm not sure. I don't remember him being there.

10
11

Q.
A.

Lieutenant Brian Cars (ph.),


Yes.

from Carmel Police?

12

Q.

Deborah Giordonello from the Probation

13
14

Department?
A. Yes.

15
16 is

Q.

And members of the District Attorney's Office;

that correct?

17
18
19 in

A.
Q.
this.

I believe just you.


That is correct. I can't make myself a witness

20
21
22

At that meeting you testified that the focus was


not the transient nature of Mr. Caruso; is that correct?
A. That's correct.

23

Q.

The focus was that you had reason to believe two

24
25

things.
A.

One, that he failed to register?


Right.
-11/1/11-

34

1 2
3

A.G. SCHRAMEK - DIRECT - MR. RUBIN Q.


A.

That's a felony; isn't that correct?


That's correct.

4
5

Q.
A.

That's a mandatory arrest?


I believe it is.

6
7
8

Q.

Was Mr. Caruso ever arrested for his failure to

register?
A. No.

9
10

Q.
correct?

That meeting occurred August 4th; is that

11

A.

Yes,

ma'am.

12
13
14
15

Q.

At some point Investigator Trisanelli filled out

a police report in regards to what occurred at that


meeting;
A.

is that correct?
Yes, ma'am.

16
17

Q.

I could show it to you,


2011;

you filed that report,

dated October 18,

is that correct.

18

THE COURT:

Do you have something to

19
20

refresh your memory?


THE WITNESS: If I could refresh my

21
22

memory?
THE COURT: Sure.

23
24

Q.
A.

First line in that?


Yes. I see that.

25

Q.

That's dated October 18,


-11/1/11-

2011?

35

1
2 A.

A.G.
That's

SCHRAMEK correct.

DIRECT -

MR.

RUBIN

3
4 5

Q.
A.

Is

that

correct?
correct.

That's

Q.

In that report Investigator Trisanelli discusses


isn't that correct?

6
7

the meeting on August 4th;


A. Yes, ma'am.

Q.

At which you were present?

9 10
11

A.

For most of it, yes.

If you recall,

I came in,

I didn't come in at the beginning of the meeting.


Q. At that meeting this report, which was filed

12 13
14

October 18th,

states that the District Attorney's office

instructed you that they would not take statements.


They needed two photographs; of that meeting? A. I don't know about taking statements. It's my is that your recollection

15
16 17

recollection we tried to get video and photographs.


THE COURT:
THE WITNESS:

18
19

Did you finish?


Yes, sir.

20
21
22

Q.

Did any members of the District Attorney's

Office at the August 4th meeting instruct you not to

make an arrest on Mario Caruso for failure to register


or for going into his home? A. At that point in time we were told to do more

23

24
25

investigation on that. 11/1/11

36

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

2
3

Q.

At that point in time had you contacted DCJS to


Caruso had actually failed to

corroborate whether Mr.

4
5

register?
A. I did not.

6
7
8

Q.

I'm going to show you a 15-page document that I

will ask to be deemed marked People's Exhibit Number 1.


Take a look at that, Chief, tell me if you

recognize that?

10
11 12 A. Q.

Do you recognize what those are documents of?


Yes, ma'am.

What are those documents?

13
14

A.
form.

Copies of the sex offender change of address

15
16

Q.

And prior to the decision -- withdrawn.


And is that from DCJS?

17
18
19

a.

I don't know if they were required from DCJS,

although they probably are.


MR. RUBIN: I will ask the Court to take

20
21

judicial notice those are required.


THE COURT: I can't take

22

MR. RUBIN:

I apologize.

23
24 of that.

THE COURT:

I can't take judicial notice

25

Q.

Can you take a look at that and see how many


11/1/11-

37

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3

motels it would appear Defendant registered at?


A. I believe there are four.

4
5

Q.

So, would it be fair to say -- withdrawn.


thank you.

That's all for that,

MR.

RUBIN:

I've never seen this

7
8

document.

May I take a look at it?


THE COURT: Yes, you may.

9
10
11

Q.

At that August 4th meeting was it discussed that

if the Defendant were actually in fact in violation of


that Order of Protection and back in his home he would

12
13
14
15

absolutely be arrested?
A.
Q.
Office

Yes,

ma'am.

Was it discussed at the District Attorney's


and with other members there that it would be

16

beneficial if there were surveillance conducted,

in

17
18

order to corroborate or prove if he was in that


residence?

19

A.

Yes.

20
21

Q.

I forgot how long you testified that

surveillance went on for?

22

A.

Sporadically.

On and off for a few weeks.

23
24 25

Q.
A. Q.

How many days a week?


I don't know, ma'am.

As a result of that surveillance was Mr. Caruso


-11/1/11-

38

A.G. SCHRAMEK - DIRECT - MR. RUBIN

2
3

arrested for violating the Order of Protection?


A. No, ma'am, he was not.

Q.

In that same report that we discussed that was

5
6
7

filed October 18th, 2011 and I ask you to take a look at


it for
A.

moment.
Sure.

8
9

Q.

The last statement by Investigator Trisanelli,

it determined or states that as per conversation with

10
11
12

Senior Investigator Castaldo, met with Captain McNamara,


this case will be handled by the Probation Department
because of their failure to advise him he must register;

13
14

did you see that,


A. Yes.

sir?

15

Q.

Are you saying that you received information

16
17

that the Probation Department failed to advise Mario


Caruso that he has to register as a sex offender?

18
19
20

A.
Q.
A.

No, ma'am.

I'm not saying that.

Isn't that what that seems to indicate?


That's what it indicates.

21

Q.

I'm also going to ask you to take a look in your

22
23

file.

There is a closed case report, if you can take

look at that.

24
25 A.

What's the date of that report, sir?


October 23rd, 2011.
-11/1/11-

39

A.G. SCHRAMEK - DIRECT - MR. RUBIN

Q.

Is that the date that this report regarding Mr.

3
4

Caruso being back in his home was closed out?


A. Yes.

5
6
7

Q.
there.
A.

And it seems there is a box that's checked off


Can you read what that box says?
Summary.

8
9

Q.
A.

First I'll ask you what the box says?


This is number three, correct.

10

THE COURT:

You can say what the box

11

says.

12
13

Q.

There is box says X, office prosecution


is that correct?

declined;

14
15
16

A.
Q.
Office

Exceptional clearance.

Prosecution declined.

Did any members of the District Attorney's


ever advise the Sheriff's office not to make an

17
18

arrest,
Order of

either for failure to register or violating the


Protection in this matter?

19

A.

As I said,

the DA's office, based on

20
21

conversations we had, asked us to do more investigating


on this.

22

Q.

After you did more investigating --

23

THE COURT:

Ask the question.

24
25

Q.

After you did further investigation, did any

member of the District Attorney's office ever instruct


-11/1/11-

40

A.G.

SCHRAMEK -

DIRECT - MR. RUBIN

2
3

you not to make an arrest for failure to register?


A. No.

4
5

Q.

After you did your investigation, did any

members of the District Attorney's Office advise you not

6
7

to make an arrest for violating the Order of Protection?


A. No.

Q.

Are you aware that one of your investigators

9
10 11
12

actually called the District Attorney's Office and


informed them that they had been instructed to arrest Mario Caruso for failure to register?
A. No, ma'am.

13
14

Q.
matter,

Shortly after you were subpoenaed in this


on or about October 14th, the Sheriff's Office

15 16
17

had a meeting with the County Attorney's office, your attorneys in this matter; is that correct?
A. Yes, ma'am.

18 19

Q.

And four days later that's when Senior

investigator Trisanelli's report was issued closing out,

20 21

apologize, four days later, that's when Investigator Trisanelli's report was issued as to what happened at

22
23

the August 4th meeting; is that correct?


A. I believe so.

24

Q.

Did you advise Investigator Trisanelli how to

25

fill out a report as to what happened at that August 4th


11/1/11-

41

1
2
3

A.G. SCHRAMEK - DIRECT - MR. RUBIN


meeting?
A. No, ma'am.

4
5

Q.
A.

Do you know who advised him?


No, ma'am.

6
7

Q.
A.

Did he show you that report before he issued it?


No, ma'am.

8
9

Q.

That would be better answered by Senior

Investigator Trisanelli?

10
11

A.

Better answered by Senior Investigator Castaldo,

his supervisor.

12
13
14
15

Q.

It appears your concern and what it took for you

to supply your affirmation to the Rones firm, Mr. Rones


was the District Attorney's Office term, transient
nature in their motion; is that correct?

16

A.

If I can make one correction?

I did not supply

17

my affidavit to Mr. Rones'

office.

18
19 20 21

Q.
A. Q.

Okay.

You signed your affidavit?


That is correct.

I have signed my affidavit.

Part of the reason that you felt it was you were

important to write that affidavit was why,

22 23

concerned about the prosecution term, in regard to the August 4th meeting?

transient nature

24
25

A.

Most important I did not want to give the

impression it was focussed because of the transient


-11/1/11-

42

1
2 3

A.G.

SCHRAMEK -

DIRECT -

MR.

RUBIN

nature of Mr.

Caruso,

but rather the investigation we

were handling at the time to consult the DA's office. Q.


present;
A.

4 5
6
7

At that meeting we had Carmel Police Department


is that correct?
Yes.

Q.

The reason Carmel was requested to be there was

8
9

to make sure the right hand knew what the left hand was
doing;
A.

would that be
Yes.

correct?

10
11 12

Q.

Every agency involved in monitoring Mario Caruso

was aware what the other agency was doing?


A. Yes, ma'am.

13

14
15
16

Q. meeting;
A.

So we discussed Mario Caruso during that is


Yes,

that correct?
ma'am.

17

MS.

KRAUS:

No further questions.

18
19
20 21 22 23

THE COURT:
MR. RUBIN:

Anything else?
No, your Honor.

THE COURT:

Chief,

you may step down.

(Witness left the stand.)

THE COURT:

Come on up.

(Side-bar off the record.)


THE COURT: On the record.

24 25

Mr.

Fusco,

your Order to Show Cause,

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