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Spain & Spain, P.C

ATTOKNBTO AT LAW 671 ROUTE SIX

MAHOPAO,NBWTOHK
10W1

WILLIAM D SPAIN,TR
CCOM5TON SPAIN BONNIE N FEINZIO
ROSE"? DaBBtLIS

TELEPHONE (845)fi28-3900 WttSWHJBCM5)e2S4694

REALESTATBPACSJMILB

(R4S)G21-0005

November 15,2011

m&il&ip&tuux'spnn COD

yiAFACSIMniT' MS.808.1904
Putnam County Attorney

Att* County Attorney Jennifer Baumgarner

48 Glexjcida Avenue

Carmel, New York 10541

Re People v Mario Caruso

Dear Ms. Baumgarner*

This firm serves as co-counsel with AndrewRubin for the above defendant
Please allow me to bring some matters to your attention and then make a
request

Background

with Sexual Abuse in the First Degree. Mr Caruso was alleged to nave touched the breast ofaminor female on asingle occasion in 2003.

On September 30,2009, Mr Caruso was charged by felony complaint signed by Putnam County Sheriff's Department InvestigatorVincent Martin
The victim's tamily retained the Law Firm of"William G Sayegh, PC to

represent their civil interests. Efforts were made to settle the civil claims
and on or about November 18,2010 an agreement was reached with the
that Mr Caruso would be prosecuted to the fullest extent ofthe law; the

not concluded because Assistant District Attorney Chana Kraus indicated

Sayegh Law Firm to paytheir clienl $100,000. However, the settlementwas

presence or absence ofacivil settlementwould be irrelevant

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County Attorney Jennifer Baumgarner

November 15,2011 Page 2

OnFebruary 16,2011 Mr Caruso plead guilty to ft&fiill indictment He

admitted his guilt so the victim would not have to testify in open court and voluntarily reported to the Putnam Countyjail prior to sentencing, at the victim's request He served 16 months in the county jail, was adjudicated a

term often year sex offender probation On May 18,2011, at flie request of
rt^. yarn's attorneys, thecourt issued anorder ofprotection wilh a 1500

level 3sexual offender, forfeited ms pharmacy license and was placed on a

he shared with his wife and mother He is now unemployed, homeless, lives in his automobile and, when allowed, sleeps in aCold Spring motel - only between 9:00PM and 600AM He spends his days driving around without
destination orparked inparking lots around the county.
Motion to Amend Order

foot stay-away provision effectively barring him from returning to toe home

Smce the stay- away provision in the order ofprotection was not part ofthe original plea bargain, we asked the district attorney's office to consent to vacate (he provision They refused. We then filed amotion, returnable August 10,2011, seeking to amend the order ofprotectionto allow Mr Caruso to return to his home. AD.A. ChanaKraus appeared for the people
and submitted an affidavit mopposition to the reliefrequested Ms Kraus

The Sayegh Law Firm also submitted an affidavit in oppositionto the relief requested and appeared in couit at each and every scheduled court session
Tt is, and has been out position that the stay- away provision was sought solely to force Mr Caruso to sell his home in order to create afund of
the entirety with his wife.
September 26,2011

also met with the victim, obtained her statement and presented it to the court

judgment. That is not now possible because the home is held as tenants by

moriev which could be attached and levied upon to satisfy a fuune money

At acourt appearance on September 26,2011 attorney Kenneth Rones ofthe Sayegh Law Firm insisted on addressing the court and expressed his

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County Attorney Jennifer Baumgarner

November 15,2011 Page 3

opposition to the reliefsought He then produced asworn affidavit from A.

requested input either from Mr Rones or officer Schramek. In feet, Ms
Gerald Schramek, the ChiefCriminal Investigator ofthe Putnam County Sheriff's Department. Neither the court nor the assistant district attorney
Krauss was completely unaware ofthe affidavit. In his sworn statement,

"position" in the case is identical to the positiontaken by the Sayegh Law

motion.

officer Schramek disclosed confidential information compiled for law enforcement purposes and recited privileged conversations had with the district attorney's office. Perhaps not coincidental^, officer Schramek s

Firm It is also our understanding that the probation department also made information available to the Sayegh Law Firm and likewise opposed the

Novembcr/l,2011
information and asworn affidavit to aprivate civil litigant in an attempt to influence acriminal case We obtained so-ordered subpoena ffom presiding

It is shocking that alaw enforcement officer would provide confidential

Judge Albert Lorenzo mordei to compel officer Schramek to testify about

his relationship with ihe Sayegh Law Firm. The assistant district attorney was distressed that her conversations with officer Schramek about acrimum!
Defense attorney Rubm and ADAKrauss examined officer Schramek, under why Ihe sworn affidavit was delivered to the Sayegh Law firm was
unbelievable and incredible

mvesUgation were leaked to an outside party. Officer Schramek appeared in court accompanied by two attorneys who remained throughout the hearing
oath, to learn Ihe extent ofthe misconduct His testimony as to how and

It isnow our understanding that the Sheriff's Office and the Putnam County Probation Department requested and leceived separate counsel to represent
them m connection with these proceedings
Public Officers Law 18

We believe that the onlyauthonty for amunicipal employee to obtain private counsel at taxpayer's expense is found m this Public Officers Law The

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County Attorney Jennifer Baumgarner

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nubhc employer has aduty to defend and indemnify apublic officer for lawsuits arising from the performance oftheir official duties Asubpoena is not alawsuit Aseparate lawyer may be ptovided ifthe chieflegal officer or court determines that aconflict ofinterest exists Separate counsel upst available to an employee who disagrees with the decision ofan elected official or wishes to assist aprivate litigant recover money malawsuit Separate counsel is not available to an employee to cover or conceal bis own misconduct. Separate counsel is not available when the confiicl ofinterest is
created by the employees themselves

County Law and the Putnam County Charter provide that the Datnct Attorney is the chieflaw enforcement officer ofthe county and has unfettered discretion in the prosecution ofcrimes Moreover, it is the court which hands down asentence and only the court may modify one Apouce department or deputy sheriffhas no standing in the matter Police officers

are expected to appear in court and tell the truth If apolice officerhas
committed misconduct, or feais he will incriminate himself, it is his
problem, not the taxpayers
Official Misconduct

Whether or not officer Schramek is entitled to aprivate attorney is now secondary to his actions as asworn police officer. By his own testimony officer Schramek used his position and office for the benefit ofWilliam G

Sayegh, afellow employee ofthe Sheriff's Department, and Mr. Sayegh's private law chent. Without any authorization, he disclosed privileged and

benefit the Sayegh chent and influence the outcome ofthe Caruso case. He also clearly intended to deprive Mario Caruso afair and impartial hearing,
in the United States Constitution (see NewYork Stale Penal Law 195 00)

confidential information beacquited as alaw enforcement officer so as to

due process oflaw, and equal protection underthe law; rights promisedhim

Officer Schramek also clearly intended to impair and obstruct Assistant District Attorney Chana Kraus in her efforts to prosecute the Caruso case as

directed by the Putnam County Distttct Attorney. He leaked details of