Acting state Supreme Court Justice Catherine Bartlett surprised lawyers this morning by recusing herself from a  case accusing former Ramapo police officer Andrew Dale and millionaire Monsey businessman Zalman Silber of sexual abuse and other charges.

They are accused of performing gynocological medical exams on a woman once married to Silber, who also faces separate charges in Manhattan involving other women.

Bartlett told prosecutors and defense lawyers that she had been speaking to a woman who began talking to about Silber’s divorce.

 ”Recusal is something within the judge’s discretion,” First Assistant District Attorney James Mellion said. “I don’t know if it’s up to anyone to object to a judge recusing herself.”

But defense lawyers David Goldstein and William Aronwald want Bartlett to remain on the case. Goldstein, who represents Dale, said Bartlett correctly informed the attorneys about the conversation with a woman who raised the issue of Silber’s divorce.

“She did her duty and made the details public,” Goldstein said. “We don’t see any reason why she should leave the case. She’s a smart judge and can put this aside and do her job.”

Bartlett previously delivered a hard blow to the prosecution’s case by tossing out 24 misdemeanor sex abuse counts against Dale. She also tossed official misconduct counts.

Bartlett’s rationale – which the prosecution opposed – was that the official misconduct counts didn’t apply to Dale because the alleged misconduct didn’t occurred within his official duties.

She wrote in that December decision that anyone could commit sexual abuse and the fact that Dale was a public official does not make it misconduct in office. She also wrote the testimony and other evidence provided by the prosecution failed to establish all the needed elements to prove official misconduct.

The Rockland District Attorney’s Office contends Dale practiced gynecology and proctology with Silber on the woman while on duty and in uniform three times in 2005 and 2006.

Under the law, the statute of limitations is five years under the official misconduct count. But when Bartlett dismissed the official misconduct counts, the statute of limitations fell to two years and the domino effect was the dismissal of the 24 misdemeanor sexual abuse counts.

What remains are eight felony charges – four counts each of unauthorized practice of a profession and fourth-degree aggravated sexual abuse. Those charges are being challenged by the defense, Dale’s lawyer, David Goldstein, has said.

The defense also is challenging the victim’s testimony on “martial privilege” grounds based on her retelling conversations with Silber. Bartlett had not yet ruled on that pretrial issue and several others.

Mellion said that now that Bartlett has recused herself, she likely can’t change her mind.

“As I pointed out to the judge, we have to be concerned if you recuse yourself and then don’t, if there is a conviction, what happens on appeal,” Mellion said.

The next court date is Feb. 26.

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My colleague Noreen O’Donnell sent this to me today, and I thought you might like to know about it, especially if you’ve followed the Jeffrey Deskovic saga in The Journal News and on LoHud.com:

NYSBA News Advisory

                        Friday, February 13, 2009 – 9:30 a.m.

NEW YORK STATE BAR ASSOCIATION HOLDS HEARING TO EXPLORE WRONGFUL CONVICTIONS

On Friday, February 13th at 9:30am, the New York State Bar Association will hold a hearing to explore the findings of a new report issued by its Wrongful Conviction Task Force, chaired by the Honorable Barry Kamins. The report studied dozens of cases from around New York State in which defendants were convicted and later exonerated.  It found that misidentification by witnesses and government practices were the two leading causes of wrongful convictions.  The hearing will also explore recommended changes to policy, procedure and legislation that would help prevent these miscarriages of justice.  The hearing is being held at the New York City Bar headquarters (42 W. 44th Street).
 
Among those expected to testify are: Daniel M. Donovan, Jr., president, New York State District Attorneys Association; Richard A. Brown, District Attorney, Queens County; Barry Scheck and Peter Neufeld of The Innocence Project; Morris Zedeck, Ph.D.; among others.
 
Testimony will also be heard from three exonorees:
 
·        Jeff Deskovic (Westchester County) – Exonerated of murder and rape after serving 16 years in prison.
·        Scott Fappiano (Brooklyn) – Exonerated of rape, sodomy, burglary after serving 21 years in prison.
·        Al Newton (Bronx) – Exonerated of rape, robbery, and assault charges after serving 21 years in prison.  

The full report can be found at: http://www.nysba.org/wrongfulconvictions


WHAT:          Three men – wrongly convicted, who spent a total of 58 years in prison – will testify at a hearing held by the New York State Bar Association Wrongful Conviction Task Force.  The hearing will explore the findings and recommendations of a new report issued by the Task Force which concluded that misidentification by witnesses and government practices were the two leading causes of wrongful convictions. Also expected to testify are law enforcement officials, representatives from the Innocence Project, forensic experts and others.

WHEN:          Friday, February 13, 2009—9:30 a.m.

WHERE:        The Association of the Bar of the City of New York
42 West 44th Street  - between 5th Avenue & Avenue of the Americas
                      
CONTACT:    Josh Salter – (212) 575-4545; Day of: (914) 629-0444
Linden Alschuler & Kaplan, PR

###

The 76,000-member New York State Bar Association is the official statewide organization of lawyers in New York and the largest voluntary state bar association in the nation.  Founded in 1876, NYSBA programs and activities have continuously served the public and improved the justice system for more than 130 years. www.nysba.org <http://www.nysba.org/

_
Joshua Salter
Linden Alschuler & Kaplan Public Relations
1251 Avenue of the Americas, Suite 940
New York, New York 10020
212.329.1425 (direct line)
212.575.4545 (main phone)
212.575.0519 (fax)
jsalter@lakpr.com
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The James McKean trial (attempted kidnapping of a little girl) started more than 2 hours late today, thanks to a single juror who apparently didn’t pay attention during jury selection.

This guy just got a new job (good for him) and started training today (they flew someone in to specifically teach him whatever it is he’s doing now). He was at that new job today — when he was supposed to be at the Westchester County Courthouse on jury duty.

County Judge Robert DiBella had his staff track down this guy, who finally arrived at the courthouse at 11:30 a.m. (Court starts at 9:30 a.m.) And he told them that his new job posed a conflict. When the judge asked him why he didn’t mention this before, the chosen juror said he thought only a medical condition was an acceptible excuse to be excused from jury duty.

I need not remind you of the old adage about people who assume.

After talking to the attorneys, DiBella excused the guy and had Alternate Juror #1 take his place.

Brace yourself for this one:

A state judge has rendered a decision in a lawsuit filed by the father of a New Rochelle High School student over a confrontation his daughter had with her Spanish teacher in October 2005.

According to court papers, the teacher approached the girl during class and told her she had to leave because she flunked Spanish 2. The teacher told her this in front of other students and ordered her to turn in her textbook and go to the counselor’s office. The girl argued that she passed the earlier class, and the teacher said that was a lie.

The girl’s father, an attorney, sued for emotional distress, and here’s what he wrote:

“It is clear that the conduct of the teacher … was so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community, certainly in a student/teacher relationship.”

Telling a kid to leave the classroom now qualifies as outrageous, extreme and atrocious? Really?

The school district fired back, saying the girl was never teased about the incident, never sought counseling or treatment and — this is my favorite — stayed with the teacher and passed the Spanish 3 class.

The father continued:

“The actions here were between an adult who was in a position of power, authority and influence over this child. Her words must be seen as more than just insults. This occurred at the hands of a teacher in what was to be a safe and nurturing school classroom to a young 14 year old girl in front of her friends during class for no rational reason whatsoever.”

O.K. So maybe the teacher should have told her to leave before class began, or waited until after everyone left. But does this rise to the level of a civil suit?

State Supreme Court Justice Francis Nicolai had the answer: No. While the remarks may have been inappropriate, he said, they were not “utterly intolerable in a civilized community” and he dismissed the complaint last week.

Olvídalo, for you non-Spanish speakers, is the equivalent of fuggedaboudit. I’m sure the student in question already knows this. She passed Spanish 4, according to the court papers.

U.S. Supreme Court Justice Ruth Bader Ginsburg is in the hospital with pancreatic cancer. Click here to read the AP story about this.

If she is no longer able to serve on the Court, that mean President Obama must name a replacement. For those of us who are rabid fans of The West Wing (and even those who aren’t), we know that choosing a Supreme Court Justice is one of the most important, meaningful and lasting acts a president can make.

Not that Obama doesn’t have enough on his plate already.

Jose and Jason Batista have new lawyers to defend them against felony charges of beating up a Haverstraw police officer – including pounding the officer across the face with his flashlight and knocking him unconscious.

Jose Batista, 30, is being represented by Martin Gotkin, while David Narain will take up 27-year-old Jason Batista’s cause. Both attorneys came through the Rockland Bar Association’s assigned counsel program. meaning the state and county pay the legal fees.

While the brothers sit in the county jail on $150,000 bail, a county grand jury will hear the case on Friday, when they can choose to testify. They are charged with felony assault counts, while Jose Batista also is charged with possession of a weapon and criminal contempt for violating a Rockland Family Court order to stay away from his former girlfriend.

Police Chief Charles Miller has not yet released the name of the officer but said he would do so at week’s end. He said he officer will testify before the grand jury and his recovering, though eating is difficult after 21 stitches to his mouth.

Haverstraw police said the incident started when Jose Batista threatened his former girlfriend, Jolene Canderlario, 26, the mother of his two children, and he tried to get into a Haverstraw village house where she was staying. She said she called the police about the threats.

The officer was at the scene to interview when Jose Batista started coming toward them. The officer told Candelario to go back into the house and lock the door, Miller said.

The officer then went to talk with Batista, with plans on calming him down and arresting him, police said. Batista punched the officer and started beating on him.

Jason Batista left their car and joined the fight, police said, as both brothers choked, punched and kicked him, police said. Jose Batista was accused of beating the officer with the officer’s own flashlight, while Jason Batista held the officer, police said.

The brothers continued fighting the officers who came to the scene, with both brothers suffering facial bruises. Candelario and her friend called the police to come and help the officer.

Police said they have witnesses to the fight.

The brothers’ mother, Kathy Shifrin, said afterward that while her son was wrong to punch the cop, she blamed Candelario for creating the confrontation by falsely telling the police that Jose Batista threatened her.

Candelario fired back today, saying she’s been beaten up before by Batista and he had threatened her on Sunday. He had been drinking with friends and watching the Super Bowl at a local bar before he came to where she was staying with a friend.

In a follow up phone interview with the paper, Candelario said she didn’t mind if her full name was disclosed. She and her family had been through tragedy before, with the murder of her brother in Spring Valley in August 2004.

In a statement to the Journal-News, which was posted on the paper’s forums, she said, “My Family & I are long-time residents of Haverstraw with roots in our community and are appalled at how I am being portrayed by the defendant’s family in the media.

“As a victim of domestic violence & a parent I can’t fathom how defaming a person’s demeanor to justify why her sons did what they did is in anyway ok. The baby mothers as the Journal News likes to call me did not file a false report; and as the residents of Rockland County will see and hear soon; everything was done by the book.”

Candelario went on to praise the police.

“I would like to thank the police officer whom I say is my guardian angel; for saving my life. This is tragic event for both families and our children are the ones that suffer the most. I would like for everyone to respect my privacy during this difficult moment; as I am moving on and giving my children a better life. I would also like to tell everyone out there in an abusive relationship; please seek help. Whether you are the victim or abuser as this only hurts so many in the long run.”

Actor Richard Gere had a casting call at the Brieant Federal Courthouse this morning. But the Pound Ridge resident did not  get a call back for his audition. Gere, 59, created quite a buzz at the courthouse when he arrived bright and early for jury duty. He was part of a pool being considered for a six-member panel in a civil case. Gere does have a courtroom drama on his resume (1996’s “Primal Fear,” most notable as Edward Norton’s breakout performance.) But, alas, he was not selected this morning.