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02/23/2012 15>BI

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November 15,2011

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TELEPHONE (845) fi28-39WttSWHJBCM5)e2S469REALESTATBPACSJMIL(R4S)G21-0005m il ip tuux'spnn COD

yiAFACSIMniT' MS.808.1904PutnamCounty AttorneyAtt* CountyAttorney Jennifer Baumgarner48 Glexjcida AvenueCarmel, New York 10541

Re People v Mario CarusoDear Ms Baumgarner*This firm serves as co-counsel with Andrew Rubin for the above defendantPlease allow me to bring some matters to your attention and then makearequest

BackgroundOn September 30,2009, Mr Caruso was charged by felony complaintsigned by Putnam County Sheriff s Department Investigator Vincent Martinwith SexualAbuse in the FirstDegree. Mr Caruso was alleged to navetouched the breastofaminor female on asingle occasion in 2003.The victim's tamily retained the Law Firm ofWilliamG Sayegh, PC torepresent their civil interests. Efforts were made to settle the civil claimsand on or aboutNovember 18,2010 an agreementwas reached with theSayegh Law Firm to pay their clienl 100,000. However, the settlementwasnot concludedbecauseAssistantDistrictAttorney Chana Kraus indicatedthatMr Caruso would be prosecuted to the fullest extent ofthe law; thepresence or absence ofacivil settlementwould be irrelevant

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County Attorney Jennifer BaumgarnerNovember 15 2011 ag e2

On February 16 2011 Mr Caruso plead guilty to t iill indictment Headmitted his guilt so the victim would not have to testify in open court andvoluntarily reported to the Putnam County jail prior to sentencing at thevictim s request He served 16 months in the county jail was adjudicated alevel 3sexual offender forfeited ms pharmacy license and was placed on aterm often year sex offender probation On May 18 2011 at flie request ofrt^. yarn s attorneys thecourt issued anorder ofprotection wilh a 1500foot stay-away provision effectively barring him from returning to toe homehe shared with his wife and mother He is now unemployed homeless livesin his automobile and when allowed sleeps in aCold Spring motel onlybetween 9:00PM and 600AM He spends his days driving around withoutdestination orparked inparking lots around the county.

Motion to Amend OrderSmce the stay- away provision in the order ofprotection was not part oftheoriginal plea bargain we asked the district attorney s office to consent tovacate he provision They refused. We then filed amotion returnableAugust 10 2011 seeking to amend the order ofprotection to allow MrCaruso to return to his home. AD.A. ChanaKraus appeared for the peopleand submitted an affidavit mopposition to the relief requested Ms Krausalso met with the victim obtained her statement and presented it to the courtThe Sayegh Law Firm also submitted an affidavit in opposition to the reliefrequested and appeared in couit at each and every scheduled court session is and has been out position that the stay- away provision was soughtsolely to force Mr Caruso to sell his home in order to create a fund ofmoriev which could be attached and levied upon to satisfy a fuune moneyjudgment. That is not now possible because the home is held as tenants bythe entirety with his wife.

September 26 2011At acourt appearance on September 26 2011 attorney Kenneth Rones of theSayegh Law Firm insisted on addressing the court and expressed his

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County Attorney Jennifer BaumgarnerNovember 15 2011Pageopposition to the relief sought He then produced asworn affidavit from A.Gerald Schramek, theChiefCriminal Investigator ofthe PutnamCountySheriff s Department. Neither the courtnor the assistant district attorneyrequested input either from Mr Rones or officer Schramek. In feet, MsKrauss was completely unaware ofthe affidavit. In his sworn statement,officer Schramek disclosed confidential information compiled for lawenforcement purposes and recited privileged conversations had with thedistrict attorney s office. Perhaps not coincidental , officer Schramek sposition in the case is identi l to the position taken by the Sayegh LawFirm It is also ourunderstanding that the probation department also madeinformation available to the Sayegh Law Firm and likewise opposed themotion

Novembcr/l,2011It is shocking that alaw enforcement officerwould provide confidentialinformation andasworn affidavit to aprivate civil litigant in an attempt toinfluence acriminal case We obtained so-ordered subpoena ffom presidingJudge Albert Lorenzo mordei to compel officer Schramek to testify abouthis relationship with ihe Sayegh Law Firm. The assistant district attorneywas distressed that her conversations with officer Schramek aboutacrimummvesUgation were leaked to an outside party. Officer Schramek appeared incourt accompanied by two attorneys who remained throughout the hearingDefense attorney Rubm andADAKrauss examined officer Schramek, underoath, to learn Ihe extent ofthe misconduct His testimony as to how andwhy Ihe sworn affidavit was delivered to the Sayegh Law firm wasunbelievable and incredibleItisnow our understanding that the Sheriff s Office and the Putnam CountyProbation Department requested and leceived separate counsel to representthemm connectionwith these proceedings

Public Officers Law 8We believe that theonlyauthonty for amunicipal employee toobtain privatecounsel at taxpayer s expense is found m this Public Officers Law The

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County Attorney Jennifer BaumgarnerNovember 15 2011Page 4nubhc employer has aduty to defend and indemnify apublic officer forlawsuits arising from the performance of their official duties Asubpoena isnotalawsuit Aseparate lawyer may be ptovided ifthe chief legal officer orcourt determines that aconflict of interest exists Separate counsel upstavailable to an employee who disagrees with the decision ofan electedofficial or wishes to assist aprivate litigant recovermoneyalawsuitSeparate counsel is not available to an employee to cover or conceal bis ownmisconduct. Separate counsel is not availablewhen the confiicl of interest iscreated by the employees themselvesCounty Law and the Putnam County Charter provide that theDatnctAttorney is the chieflaw enforcement officer ofthe county and hasunfettered discretion in the prosecutionofcrimes Moreover, it is the courtwhich hands down asentence and only the courtmaymodify one Apoucedepartment or deputy sheriffhas no standing in the matter Police officersare expected to appear in court and tell the truth Ifapolice officer hascommittedmisconduct, or feais hewill incriminatehimself, it is sproblem, not the taxpayers

Official MisconductWhether or not officer Schramek is entitled to aprivate attorney is nowsecondary to his actions as asworn police officer. By his own testimonyofficer Schramek used his position and office for the benefitofWilliam GSayegh, afellow employee ofthe Sheriff s Department, and Mr. Sayegh sprivate law chent. Without any authorization, he disclosed privileged andconfidential information beacquited as a law enforcement officer so as tobenefit the Sayegh chent and influence the outcomeofthe Caruso case. Healso clearly intended to deprive Mario Caruso afair and impartial hearing,due process of law, and equal protection under the law; rights promised himin theUnited States Constitution (see NewYork Stale Penal Law 195 00)Officer Schramek also clearly intended to impair and obstruct AssistantDistrict AttorneyChana Kraus in her efforts to prosecute the Caruso case asdirected by the PutnamCounty DistttctAttorney. He leaked details of

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