Date post: | 02-Apr-2018 |
Category: |
Documents |
Upload: | jim-franco |
View: | 216 times |
Download: | 0 times |
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 1/24
----PREMO LAW FIRM PLLC20 CORPORATE WOODS BOULEVARD
ALBANY, NEW YORK 12211
'Te fepl ione: (51 8) 436-8000
Ta csim ile: (51 8 ) 436-06 59
July 19,2013
Stephen A. Pechenik, Esq.,
Rensselaer County Attorney
1600 i Avenue
Troy, New York 12180
via Facsimile (270-2954) and E-mail
John W. Bailey, Esq.
Bailey, Kelleher &Johnson, P.C.
Pine West Plaza 5, Suite 507
Washington Avenue ExtensionAlbany, New York 12205
via Facsimile (456-4767) and E-mail
Robert A. Becher, Esq.
5 Wilson Street
Albany, New York 12207
via Facsimile (436-4583) and E-mail
Thomas 1. O'Connor, Esq. via Facsimile (862-1519) and E-mail
Napierski, Vandenburgh &Napierski
296 Washington Avenue Ext.
Albany, New York 12203
Re: Edward G. McDonough v. Youel C . Smith (aka Trey Smith), et. al.
Gentlemen:
This letter concerns the issues regarding criminal defense fees as compensable damages,
the claims against District Attorney Richard McNally, and immunity from civil liability.
Most, if not all, of the relevant facts discussed are now part of the criminal case record.
Therefore, it is again suggested that defense counsel review all documents of the related
private investigation, Lambertsen action, NYSPITrey Smith criminal investigation and
criminal case because all of McDonough's claims are established by the substantial,
incontrovertible testimonial and documentary evidence reflected in those records.
1. GoodFaith Settlement Demand Inclusive of Criminal Defense Fees
In relation to our recent discussion, Mr. McDonough now demands the amount of
$5,000,000.00 in settlement of his claims prior to commencement of action. Thereafter,
McDonough will seek payment of the amounts previously stated in my March 25 letter,
including punitive damages from individual defendants.
1
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 2/24
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 3/24
3. Liability of Trey Smith
Among other things, it is alleged that: Trey Smith fabricated evidence in an investigatory
role and then used it to wrongfully indict and prosecute McDonough as a scapegoat for
other Democratic operatives and candidates who committed numerous elections crimes;
DA McNally unlawfully disqualified himself and had Trey Smith appointed to accomplishthat task; Trey Smith indicted and prosecuted McDonough for falsely alleged acts that are
not crimes; and, Trey Smith, DA McNally and others fabricated and suppressed evidence
in effort to wrongfully indict, prosecute and convict McDonough. It is also alleged that
Trey Smith, DA McNally and other county policy-makers knowingly permitted
McDonough's wrongful prosecution by failing to take action to have Trey Smith's
unlawful appointment nullified pursuant to controlling law of which they had knowledge.
In summary, the criminal case record, including pre-trial filings, NYSP records and
testimony of the prosecution witnesses, irrefutably shows that Trey Smith: interviewed
witnesses and orchestrated the fabrication of evidence that he later used to wrongfully
indict and prosecute McDonough; prosecuted McDonough for alleged acts that are notcrimes as a matter of law; and wrongfully prosecuted McDonough to protect from
prosecution those Democratic operatives and candidates who committed elections crimes.
That record also proves there is no justification for his actions. In fact, the evidence in
the criminal case alone proves McDonough's claims.
DA McNally's unlawful disqualification of himself and appointment of Trey Smith, DA
McNally's and Trey Smith's resolute opposition to the nullification of that appointment in
contradiction of the clear law, Trey Smith's failure to prosecute those who clearly
committed numerous readily provable elections crimes despite overwhelming evidence of
their guilt, Trey Smith's intentional misleading of the NYSP with the falsehood that those
known to be guilty of the actual elections crimes they committed could not be prosecutedbecause there was not sufficient corroboration of accomplice testimony when, in fact,
there existed overwhelming, irrefutable, and legally sufficient evidence to convict all of
them, and the trial testimony of McInerney, Brown, Ogden and 0 'Malley all expose the
true nature of the defendants' actions and establish McDonough's claims.
For instance, McInerney and Brown admitted at trial that they were told by Trey Smith in
2009,2010 and 2011 they would not be prosecuted for their numerous crimes (including
completing Applications they knew McDonough was falsely indicted for having done).
They also admitted that they were therefore not concerned about being prosecuted until
2011 when McDonough forced their arrests through an aggressive defense.
McInerney also admitted on cross examination that although he committed hundreds (or
thousands) of elections crimes in 2007, 2008 and 2009 and knew that McDonough was
being wrongfully prosecuted for some of his acts, he met with DA McNally soon after the
crimes were discovered, retained DA McNally's attorney on his advice, destroyed his cell
phone (which contained his test messages) on their attorney's advice, and then returned to
his usual routine with the knowledge that Trey Smith never intended to prosecute him.
3
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 4/24
O'Malley testified that Trey Smith threatened to prosecute him for perjury and election
crimes he did not commit but then called him at home on or about the night before he
returned to the Grand Jury. He then returned to the Grand Jury and incriminated
McDonough in directly contradiction of his prior testimony. Nonetheless, he claimed that
he did not know Trey Smith and could not recall any of their conversation.
McGrath testified that Trey Smith gave him complete immunity from prosecution before
he told them he witnessed McDonough enter false information on 2 Applications but
never himself committed any crimes. At the time he was given immunity and at trial he
claimed that the voters completed and signed the Applications and absentee ballots he
solicited or gave him permission to do so. However, at the time of the investigations and
at trial the voters irrefutably testified that' they never completed or signed their purported
elections documents or gave McGrath permission to do so. Not surprisingly, Ogden
testified at trial that he and Trey Smith believed convicted felon McGrath over the voters
during their investigation of the case. In short, McGrath's false incrimination of
McDonough was elicited by Smith and Ogden in return for immunity for numerous
readily provable election crimes he denied committing in complete contradiction of thesworn statements of the victim voters and the elections documents.
Simply put, as discussed below, McDonough's claims against Trey Smith, DA McNally
and the others are established by substantial irrefutable evidence which also shows that
neither of them has absolute or qualified immunity for their acts.
4. NYS Attorney Gener-al Evidence Confirms that Trey Smith Forged or
Notarized the Forged Signature of Voter Jolene Van Vranken on an Affidavit
he Introduced before the Grand Jury to. Wrongfully Indict Mr. Mcllonough:
No. Absolute immunity because Investigative and/or Administrative Capacity &
No. Qualified Immunity because Violation of Clearly Established Law
Prosecution witnesses Jolene Van Vranken and Jermaine Joseplt testified at trial that
their purported signatures on the affidavits Trey Smith notarized and introduced before
the Grand Jury were not their signatures and they never even saw the affidavits.
Notably, the glaring similarity in ink and handwriting between the forged signatures
and Trey Smith's signature on those documents is also. undeniable. That evidence is
discussed further in the motions to. dismiss that are in your possession. Still, Trey
Smith would have us believe that those prosecution witnesses do. not know their own
handwriting and falsely testified about the matter!
In any event, a NYS Attorney General investigation into the matter confirmed that Trey
Smith forged and/or notarized the forged signature of Jolene Van Vranken on herpurported affidavit that he introduced before the Grand Jury to indict McDonough. A
copy of those documents obtained in response to.a FOIL request is attached.
Suffice it to say, the forgery of a signature or notarization of a forged signature on even
one purported affidavit used to obtain a wrongful indictment is sufficient to at least
corroborate all of the evidence establishing McDonough's claim against Trey Smith. As
4
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 5/24
stated, however, the trial testimony of Anthony DeFiglio, William McInerney, Kevin
McGrath, Kevin 0 'Malley, John Brown, John Ogden, Alan Robillard and Anthony Renna
also clearly proves that Trey Smith conducted, directed and/or supervised the NYSP
investigation and in investigatory and administrative roles orchestrated the fabrication of
evidence to wrongfully indict, prosecute and convict McDonough and deprive him of his
constitutional rights to due process and a fair trial.
5. DA McNally has No Immunity for his Ultra Vires, Administrative and Extra-
Judicial ConspiratorialActions in Violation of Established Law
Mr. Becher asserts that DA McNally has immunity for all his acts. That assertion ignores
the nature of McDonough's claim and the fact that DA McNally never acted in the
prosecution of any case. All of his actions were administrative, extra-judicial or non-
prosecutorial. In any event, substantial incontrovertible evidence proves that he also
acted in conspiracy with Trey Smith, McInerney and others to wrongfully prosecute
McDonough in lieu of those guilty of the election crimes through the fabrication and
suppression of evidence and would have no immunity for the reasons discussed.
Common Law Absolute Immunity from Action for Malicious Prosecution
Under common law, prosecutors have imniunity from malicious prosecution. Thus, the
U.S. Supreme Court held that they have absolute immunity in civil rights claims for acts
"intimately associated with the judicial phase of the criminal process," to include even
the introduction of false evidence or subornation of perjury at trial.
Absolute and Qualified Immunity from Civil Rights Claims is Functional
However, prosecutorial immunity in civil rights claims is functional and it attaches only
to acts directly related to the initiation or prosecution of a criminal case. Consequently,
like any other public officer they have only qualified immunity for their administrative orinvestigatory acts, including interviewing a witness or defendant, etc. Also, they have no
immunity for extra-judicial acts, including public statements, etc. Please review well-
established applicable case law.
DA McNally Did Not Act in a ProsecutoriaI Capacity
Therefore, DA McNally has no immunity for unlawfully disqualifying himself and having
Trey Smith appointed special prosecutor or his subsequent acts in furtherance of the
wrongful prosecution of McDonough, as alleged. In short, none of his acts were
intimately related to the judicial process in a case he was prosecuting. All of his acts
were administrative or extra-judicial, i.e. (1) giving legal advice to McInerney (his friend,
political supporter and past campaign worker who committed similar elections crimes to
help him win election by absentee vote in 2007 and was primarily responsible for the
subject election crimes) that resulted in the destruction of evidence (any text messages on
his cell phone, which he testified he destroyed on the advice of his attorney who was also
DA McNally's attorney for his 2007 election); (2) giving legal advice to Mr. Martiniano
(a primary eyewitness) that resulted in the suppression of evidence that directly
incriminated McInerney and Brown but exculpated McDonough before his indictment;
(3) giving legal advice to McDonough (the publicly known target of a Grand Jury that,
5
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 6/24
together with other actions of Trey Smith, resulted in his declination to testify before the
Grand Jury contrary to his best interests and attorney's advice); (4) opposing
McDonough's motion to disqualify Trey Smith in direct contradiction of the law of which
he had knowledge and notice; and (5) making public comments likely to deprive
McDonough of his constitutional rights. His actions are further discussed below.
a. The indisputably record facts show that DA McNally unlawfully "disqualified
himself and his entire staff" from a clearly broad-scoped investigation of numerous
election crimes apparently committed by then unknown Democratic candidates and
operatives to win the WFP 2009 City of Troy primary for their own benefit.
DA McNally purportedly disqualified himself from the investigation of
unknown Democratic operatives and/or candidates "to avoid the appearance of
impropriety and speculation of politics" but effectively had his friend and fellow
Democrat Trey Smith appointed special prosecutor. Moreover, he did so by an off-the-
record, in-chambers discussion without any proper application or legal basis. Notably,
at that time, only Democratic candidate McGrath and Democratic operative DeFigliowere identified by several voters as being involved in the solicitation of Applications
and/or absentee ballots. McInerney was never named or identified bv any voter as
being involved in any aspect of the activity in the affidavits upon which the
Lamberstsen action was based.
In any event, the evidence proves DA McNally disqualified himself to further
the wrongful prosecution of McDonough and protect from prosecution his friend,
former campaign worker, and Democratic operative, McInerney, who helped him win
election in 2007 by AB vote (many of which he admittedly forged) as well as the other
Democratic candidates and operatives who committed the crimes. The evidence also
circumstantially proves that he was aware before 2009 that McInerney forged AB insupport of his 2007 election. The following facts are matter of record.
Soon after the election crimes were discovered in September 2009, McInerney
threatened to "take everyone down" with him if prosecuted. He then visited DA
McNally at his home, retained DA McNally's personal attorney based on his advice,
avoided service of process (subpoena) and destroyed his cell phone based on the advice
of his and DA McNally's attorney's (which is tantamount to tampering with evidence,
i.e. the destruction of any incriminating text messages on his cell phone), returned to
his usual routine without fear of prosecution, and thereafter remained silent as
McDonough was wrongfully prosecuted based on allegations he knew to be false for
the crimes he and others committed. In fact, he admitted at trial that he knew in and
after 2009 that Trey Smith had told his attorney that he would not be prosecuted (in
contradiction of Trey Smith's repeated affirmations denying that fact). He also
admitted that he did not have any concern about being prosecuted until McDonough
essentially forced his arrest by defending himself.
Later, more than a year after telling Mr. Bugbee and defense counsel that he
could not do so, Trey Smith perfunctorily obtained an Order extending his authority to
6
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 7/24
prosecute McInerney for crimes committed in 2007 and 2008 (with the assistance of
DA McNally and again without legal basis), immediately after McInerney was arrested
at the direction of NYSP Sr. Inv O'Brien without Trey Smith's knowledge. Trey Smith
then orchestrated McInerney's jurisdictionally defective guilty plea to one felony in
satisfaction of the hundreds he committed in 2007, 2008 and 2009.1
Specifically, on or about September 24 - 28, 2009, DA McNally wrongfully obtained an
ultra vires Court Order appointing Trey Smith special prosecutor to investigate and
prosecute any person for the subject election crimes without proper application or legal
basis for the disqualification of himself and all his assistants from the investigation or
prosecution of any particular person. (See, DA McNally's purported unsigned and un-
stamped letter request for appointment of a special prosecutor dated September 24,2009,
County Court Order of appointment dated September 28, 2009, and all prior related pre-
trial motions and papers within your possession.)
In fact, however, for all the reasons discussed in the Legal Brief within your possession
("The District Attorney Did Not Establish a Basis for his Disqualification and Thereforethe County Court had No Authority to Appoint a Special District Attorney Pursuant to
County Law §701"), it is a matter of incontrovertible fact that DA McNally failed to show
any legal basis for his disqualification. Furthermore, as discussed in prior papers, the
irreconcilable dichotomy between his September 2009 disqualification and failure to seek
disqualification in January 2008 from a pending Grand Jury investigation into the alleged
acts of the Democratic Chairman who only months before selected him as Democratic
candidate for District Attorney. and, upon information and belief, his failure in 2012
and/or 2013 to move for disqualification from the prosecution of alcohol-related charges
against the daughter of the same Democratic Chairman from whom he obtained support
for nomination as the Democratic candidate for Justice of the Supreme Court in 2013, is
repugnant to the law, ethics, common sense and logic. For all the reasons discussed, theinconsistency is merely more circumstantial evidence of his alleged misconduct in
furtherance of the wrongful prosecution of McDonough.
DA McNally disqualified himself without application or basis and had his friend and
fellow Democrat appointed to the prosecution of unidentified Democratic candidates and
operatives who committed the subject crimes. In short, if McInerney had previously
admitted his crimes to DA McNally and/or threatened to "take him down" politically if
prosecuted (through disclosure of his forgery of AB in support of his 2007 election), DA
McNally was required to disclose the same to the court and Mr. McDonough at the time
of the disqualification and thereafter. Furthermore, even if McInerney had threatened or
ISee letters from Trey Smith and DA McNally dated July 18,2011 and July 19,2011, respectively, in your
possession. See also, Judiciary Law §493 (An attorney, ... who, having himself prosecuted or in any
manner aided or promoted any action of proceeding in any court, as district attorney or other public
prosecutor, afterwards directly or indirectly advises in relation to, or takes any part in, the defense
thereof, as attorney or otherwise; ... is guilty of a misdemeanor.), and, Judiciary Law §487 (An attorney or
counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to
deceive the court or any party; ... Is guilty of a misdemeanor.); NY Rules of Professional Conduct, Rule
3.3, Rule 3.4, Rule 3.8, Rule 4.1, and Rule 8.4; and relevant discussion in the Notice of Claim and Legal
Brief previously provided to the County on issue of disqualification.
7
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 8/24
admitted his crimes to DA McNally there would be no basis for the disqualification of his
entire office unless he was expected to be called as a witness because there could not
have been any attorney-client relationship or other required actual or likelihood of
prejudice, regardless of his friendship or past campaign assistance.
Nonetheless, as discussed, before and/or after his disqualification, DA McNally:
i. Had conversations with Trey Smith concerning the matter;
11. Accepted NYSP privileged lab reports concerning the return of DNA testing;
111. Met at his home and gave legal advice to his friend and former campaign worker,
McInerney, (who just happened to have committed most of the 2009 election
crimes, as well as many others in 2007 and 2008), at least with respect to legal
representation (i.e. that McInerney retain the same attorney who represented him
in regard to his 2007 election won by AB, some of which he admittedly forged);
IV. Failed to disclose that information to the court or McDonough;
v. Advised Martiniano, who was one of only two people who were known to have
assisted McInerney in soliciting the questioned applications for AB who was not
interviewed during the investigation directed by Trey Smith, months beforeMcDonough's indictment that he should not come forward with whatever material
facts he knew or worry because "it will all be over soon" (the evidence was that
Brown and McInerney admitted they were going to trace forge signatures from
Applications to AB envelopes);
VI. Directly and indirectly contacted McDonough after he gave notice of his intent to
testify before the Grand Jury and gave him the names of attorneys he should
retain in substitution of me after I gave my advice that he should testify before the
Grand Jury. Democratic Chair Wade then called him and told him that he should
not testify before the Grand Jury and when McDonough contacted the attorney
Wade recommended, that attorney told him that he likely would not have him
testify in the Grand Jury. At the same time, other BOE employees informed
McDonough that Trey Smith had treated them badly before the Grand Jury. All of
those actions had the effect of furthering the wrongful prosecution of McDonough
by causing him to not appear before the Grand Jury.
Thus, DA McNally abdicated his duties in contravention of County Law §701, case law
and ethics. See, Legal Brief. DA McNally then gave legal advice to: (i) the person most
responsible for the subject crimes (McInerney) that led to the destruction of evidence that
would likely have incriminated him and others in crimes; (ii) an eyewitness with personal
knowledge of material evidence (Martiniano) that caused the suppression of evidence
incriminating McInerney and Brown and exculpating McDonough before any Grand Jury
action; and (iii) the target of a pending Grand Jury action (McDonough) that was contrary
to his interests and the advice of his attorney, without the latter's knowledge or consent.All of those acts furthered the wrongful prosecution of McDonough and protected
McInerney and other Democratic candidates and operatives guilty of the crimes.
8
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 9/24
b. After improperly disqualifying himself, DA McNally gave legal advice to
McInerney, who was primarily responsible for the election crimes and failed to disclose
any related non-privileged discussion(s) to the court or defense counsel.2
Again, shortly after the election crimes were discovered in September 2009, McInerney
threatened to "take everyone down" if prosecuted. More significantly, he disclosed attrial that he then drove about 45 minutes to DA McNally's home in Valley Falls
purportedly only to get the name of an attorney to represent him in the matter. He
testified he did so only because he did not want to ask that question on the telephone but
that they did not talk about any other matter during their meeting. Needless to say, his
testimony is patently incredible. In any case, DA McNally did not disclose the related
facts to the court or McDonough at anytime.
McInerney also testified at trial that:
i. On DA McNally's advice he retained the attorney who represented DA McNally in
his 2007 AB election won by AB (many of which he knew he had forged); and,
11. On the advice of his and DA McNally's attorney, he threw his cell phone into theriver (thereby destroying any text messages stored on it).
Not surprisingly, McInerney's cell phone call records are the only ones of any material
witness that were never obtained by Trey Smith or the NYSP.
Again, McInerney testified that after the crimes were discovered in 2009 he returned to
his usual routine without concern of being prosecuted, despite the fact that:
1. He played aleadership role in the election crimes, forged signatures on numerous
Applications and AB envelopes and falsely voted numerous AB in said primary;
11. He forged signatures on numerous Applications and AB envelopes and falsely
voted numerous AB in 2007 and 2008 elections, still maintained at the BOE;
111.
He had distinctive and readily identifiable handwriting;IV. Deliiglio worked closely with him in soliciting Applications in 2009 related to the
AB he falsely voted and Applications and AB envelopes he forged, and had
personal knowledge of facts that alone were sufficient to convict him;
v. He had committed hundreds of election crimes in 2007,2008 and 2009 that were
readily provable by the testimony of DeFiglio, Martiniano, the voters and others
and the related elections documents on file at the BOE.
As stated, McInerney testified that he had no concern about being prosecuted until
August 2011 when he was arrested at the direction of Sr. Inv. 0'Brien because Trey
Smith had informed his attorney in 2009, 2010 and 2011 that he would not be prosecuted.
2 See, Judiciary Law §493 (An attorney, ... who, having himself prosecuted or in any manner aided or
promoted any action of proceeding in any court, as district attorney or other public prosecutor,
afterwards directly or indirectly advises in relation to, or takes any part in, the defense thereof, as
attorney or otherwise;... is guilty of a misdemeanor.), and, Judiciary Law §487 (An attorney or counselor
who: l. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the
court or any party; ... Is guilty of a misdemeanor.). See, also, NY Rules of Professional Conduct, Rule 3.3,
Rule 3.4, Rule 3.8, and Rule 8.4.
9
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 10/24
Also, only because of McDonough's actions in defending himself, it is known that:
1. McInerney committed hundreds of elections crimes in 2007,2008 and
2009 that were readily provable by overwhelming testimonial and documentary
Trey Smith intentionally ignored or failed to obtain during the NYSP investigation
he supervised and conducted in 2009, 2010 and 2011;
ii. McInerney helped DA McNally win election in 2007 by AB vote, many of which
he forged, and had become a friend of his at that time;
111. McInerney was awarded the coveted patronage position of Troy City Clerk by the
Democratic Chairman for obtaining AB in support of the elections of DA McNally
and a majority of the Troy Council in 2007;
IV. McInerney played a leadership role in the 2009 election crimes;
v. After the 2009 election crimes were discovered, Democratic Chair Wade and
others discussed how that issue should be "handled"; and
VI. Prior to McDonough's wrongful prosecution, Brown suggested that McInerney
plead guilty for the election crimes so that he and the other guilty Democratic
candidates or operatives would not be prosecuted.
c. After improperly disqualifying himself, DA McNally visited the restaurant of a
known suspect (LoPorto's) and advised a participant in the solicitation of questioned
Applications (Martiniano) that he should not disclose evidence material to the subject
crimes or worry about the matter because it would soon all be over, even before
McDonough's indictment.
That conduct is n-ot only circumstantial evidenee of DA McNally's kno-wledge
that the wrongful prosecution of Mclronough would end the matter without those
guilty of the crimes ever being prosecuted, as alleged all along, but also that h e and
Trey Smith had relied upon the misplaced and unsound expectation that McDonough
and/or his attorney would not dare take the case of an overcharged (74 count)indictment to trial. It was also contrary to rules of ethics, public policy, law, the
interests of justice and McDonough's civil rights. 3
Specifically, on/about September-December 2010, at LoPorto's Restaurant, Martiniano
informed DA McNally that he knew the NYSP had or tried to interview everyone
involved in the solicitation of questioned Applications except him, and, that he had
personal knowledge of evidence material to the matter. In fact, Martiniano and Renna
were the only Democratic operatives directly involved in the matter that had not been
contacted or interviewed by the NYSP although they, Trey Smith and all the Democratic
candidates and operatives involved knew that those two had assisted McInerney, Brown
and others obtain some of the questioned Applications on September 14, 2009. He was
never identified as having solicited Applications because the NYSP never showed any
voters his DMV photograph.
DA McNally then told Martiniano that he should not disclose the evidence to anyone or
worry because "it was all going to go away soon anyway." Furthermore, he gave that
advice without being told or asking what the evidence happened to be. Also, although
3 See, also, NY Rules of Professional Conduct, Rule 3.4, Rule 3_8, and Rule 8.4.
10
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 11/24
Martiniano may not have told DA McNally what evidence he possessed, he did tell him
that it was material to the case and sought his advice as District Attorney. More
importantly, the advice that DA McNally gave Martiniano resulted in the suppression of
direct evidence of the guilt of McInerney and Brown as well as the innocence of
McDonough before his indictment.
In fact, on or about September 12, 2009, Brown told Martiniano that he was going to use
Applications obtained that day to trace forge voter signatures onto AB envelopes and
McInerney told him not to worry about his statement because "they were all going to
[him}". See, attached affidavit of Martiniano dated May 8, 2013, obtained in preparation
of the impending federal civil rights action. Obviously, McInerney and Brown knew
what they had told Martiniano. Again, therefore, the significance of the relationships
among DA McNally, McInerney, Trey Smith and the others who committed the election
crimes is compelling circumstantial evidence of their wrongful acts.
So, after his disqualification, DA McNally effectively suppressed evidence that would
have directly incriminated McInerney and Brown but exculpated McDonough in theelection crimes by given legal advice to a primary witness that was contrary to his oath of
office, the law, public policy, the ends of justice and McDonough's constitutional rights.
That unjustifiable act clearly furthered the wrongful prosecution of McDonough. The
fact that Martiniano disclosed the facts to McDonough after reading his post-indictment
motion to disqualify Trey Smith is of no moment. It is, however, telling that Trey Smith
attacked his credibility and Brown held a press conference and called him a liar,
especially because- the e-vide-ncelater discovered and adduced at trial proved that he told
the truth about the matter, and Brown latter admitted that fact.
d. After improperly disqualifying himself, DA McNally requested and/or accepted
privileged NYSP lab reports related to DNA testing and had conversations with TreySmith about the investigation and prosecution of the election crimes. 4
On or about September 24,2009 to December 2012, DA McNally talked with Trey Smith
about the election crimes and caused and/or permitted the NYSP Crime Lab to send him
copies of its reports on DNA testing despite the fact that:
i. He had already improperly disqualified himself from the matter;
11. He was a friend and apparent confidant of McInerney against whom there was
overwhelming evidence to prove his guilt of the election crimes;
111. McInerney visited him at his home after the crimes were discovered and upon his
advice retained his personal attorney;
IV.
McInerney helped him win election in 2007by forging AB;v. O'Malley, a BOE employee appointed by Democratic Chair Wade, surreptitiously
destroyed the 2007 Applications maintained at the BOE soon after McDonough
demanded that Trey Smith obtain and maintain them as evidence of McInerney's
guilt in the subject and past election crimes, despite being aware of the pending
prosecution and other relevant facts;
4 See, Judiciary Law §487 and §493. See, also, NY Rules of Professional Conduct, Rule 3.4, Rule 3.8, and
Rule 8.4.
11
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 12/24
VI. 0 'Malley is a long time Town of Hoosick political operative, past Town Board
member, and supporter of DA McNally; and
V1 1 . Trey Smith previously was appointed attorney for the Town of Hoosick through a
mutual friend of his and 0 'Malley.
e. After improperly disqualifying himself and in apparent concert with McInerney
and Democratic Chairman T. Wade, DA McNally communicated directly and indirectly
with McDonough without my prior consent or knowledge and recommended that he
retain another attorney who would do a "better job for a lower fee" (or, according to
Trey Smith, "was more competent'? See, Notice of Claim.5
..
In September 2010, McDonough informed Trey Smith of his intent to testify in the Grand
Jury and requested that BOE Commissioner Bugbee and others be permitted to do so.
That fact was reported in the local newspapers and known by McInerney, DA McNally,
the Democratic Chairman and others.
Their knowledge of that fact is significant because in December 2010 the purported caseagainst McDonough was based solely upon:
i. McGrath's false, self-serving and uncorroborated testimony that he witnessed him
write false excuses on two (2) Applications;
11 . Inv. Ogden's patently improper and incredible testimony that the delivery agent
names and excuses on all the Applications were in the same handwriting and a
pattern that showed they were all written by the same person; and·,
11 1 . The innocuous allegation that McDonough's (Touch or Trace-) DNA was
purportedly found on the inside seal of three AB envelopes.
Parenthetically, although he admittedly committed perjury in the Grand Jury, Brown did
not directly incriminate McDonough in any crimes (there or at trial), because he could
not (although he did not truthfully testify and exonerate him as he should have).
Consequently, from September 2010 to January 2011 Trey Smith was aware that there
was insufficient evidence to indict McDonough, especially if he and others testified on
his behalf. Therefore, it was critical for a scapegoat prosecution that he not. This
explains why Trey Smith, McInerney, DA McNally and the Democratic Chairman then
took action to keep him from doing so. There simply is no other plausible reason for .
DA McNally to AGAIN involve himself in the matter by giving legal advice to a named
target of a Grand Jury investigation - especially when all other pertinent facts are
considered, i.e. his close relationships and related discussions with Trey Smith and
Mclnerney, his acceptance of privileged NYSP DNA results, his advice to a material
eyewitness not to disclose important evidence, etc.
First, without my knowledge or consent, DA McNally communicated with McDonough
and essentially advised him to hire another attorney. McInerney then acted as DA
Mcblally's messenger in providing McDonough the names of attorneys he recommended.
Specifically, McDonough received a voice message from DA McNally on December 6,
5 See, Judiciary Law §487 and §493. See, also, NY Rules of Professional Conduct, Rule 3.4, Rule 3.8,
Rule 4.1, Rule 4.2, and Rule 8.4.
12
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 13/24
2010, requesting a return call. Then, on December 7, 2010, McInerney gave BOE
employee Mary Sweeney a piece of paper listing the names of attorneys DA McNally said
would "do a good job for a lower fee." On December 8, 2010, DA McNally answered
McDonough's return call and asked if he had "gotten the message from our friend', but
when asked to give his opinion about whether he should testify before the Grand Jury,
said "I can't answer that question, I got to go" and abruptly ended the conversation.
Shortly after that call, the Democratic Chairman called and told McDonough that he
should not testify and also that one of the attorney's recommended by DA McNally owed
him "a favor" and he would make a call to him. When that attorney was called, he told
McDonough that he likely would not have him testify before the Grand Jury and that the
case would probably be favorably resolved in a short time without great expense.
At the same time, Trey Smith purportedly treated 0 'Malley and other BOE employees
rudely in the Grand Jury ("almost as if they were criminals") and, as expected, they told
McDonough all about it. Consequently, although it was obvious to me that Trey Smith
was engaged in a scare tactic to keep him. from testifying, it caused Mcfronough more
concern that he intended to "fuck him" in the Grand Jury. Trey Smith also essentiallyensured that BOE Commissioner Bugbee did not testify before the Grand Jury about AB
protocol and procedures that supported McDonough's innocence by advising him that he
might incriminate himself, that he would be required to waive immunity and that it was in
his interests to retain an attorney: Again, the tactic had the desired effect of scaring
Bugbee from testifying before the Grand Jury about the absentee ballot process.
All of those actions caused McDonough to not testify in the Grand Jury, contrary to his
desire and my strong advice to do so. In short, because he then knew that Trey Smith was
determined to wrongfully prosecute him in lieu of those Democratic candidates and
operatives guilty of the election crimes, McDonough did not believe that Trey Smith
would properly and fairly present the matter to the Grand Jury despite his innocence.
f. After improperly disqualifying himself, DA McNally made public extrajudicial
statements that had a substantial likelihood of materially prejudicing McDonough's
trial tofurther his wrongful prosecution.6
On September 29, 2011, during a public WNYT interview, DA McNally characterized
McDonough's defense as "ridiculous conspiracy theories" and admitted that he had
talked with him and McInerney about the case. The obvious intended implication of his
public statements was that McDonough's defense had no merits and he was guilty.
Later, on or about October 19, 2011, during a Talk 1300 radio interview, DA McNally
stated that "it would take an eternity" to understand the logic of McDonough's motion todismiss the indictment and disqualify Trey Smith based on his illegal appointment and
status as a material witness despite the fact that it was based on well-settled law and a
few indisputable record facts of which he was aware.
6 See, Judiciary Law §487 and §493. See, also, NY Rules of Professional Conduct, Rule 3.6, Rule 3.8, and
Rule 8.4.
13
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 14/24
Clearly, those extrajudicial comments had a substantial likelihood of materially
prejudicing McDonough's impending trial and were apparently intended to deprive him
of his rights to due process, a fair trial and to present a defense. See, letters of September
30, 2011 and October 19, 2011 sent to DA McNally in your possession. Again, there
could be no plausible reason for such alleged extraordinary misconduct after his own
self-disqualification other than to further the conspiracy against McDonough.
g. After improperly disqualifying himself, DA McNally opposed Trey Smith's
disqualification and failed to commence a proceeding to have his appointment
nullified, despite notice of its unlawfulness. 7
On or about September 24 to September 28, 2009, and thereafter until December 21,
2012, DA McNally allowed Trey Smith to continue the wrongful prosecution of
McDonough by opposing his disqualification and failing to commence an action to have
his illegal appointment nullified in accordance with the established law of which he was
given notice. DA Mcblally's failure to take action to disqualify Trey Smith caused
Mclfonough to suffer a continued wrongful prosecution that resulted in two protractedtrials, great 'monetary expense and substantial personal injury. If he had taken proper
action, Trey Smith's unlawful appointment would have been declared void before or
shortly after McDonough was indicted. Instead, he allowed Trey Smith to continue to act
illegally and in excess of the law in pursuing the wrongful prosecution.
It will be alleged that DA McNally acted in concert with Trey Smith and others to
wrongfully -pro'secute McDonough in effort to protect from prosecution Mclnerney and
the other Democratic candidates and operatives guilty of the election crimes, and, that he
was aware prior to his misconduct that McInerney falsified AB for his 2007 election won
by AB vote. Thus, DA McNally has no absolute or qualified immunity for any of his
alleged wrongful acts.
Parenthetically, as Mr. Pechenik is aware, both Trey Smith and DA McNally personally
contacted him and requested that he not bring action on behalf of the county to declare
Trey Smith's appointment invalid and end the prosecution of McDonough.
6. Trey Smith has No Absolute Immunity for Investigatory and AdministrativeActions and No Qualified Immunity for Acting to Deprive McDonough of his
Constitutional Rights to Due Process and a Fair Trial in Violation of ClearlyEstablished Law
It is well established that "there is a constitutional right not to be deprived of liberty as a
result of the fabrication of evidence by [a prosecutor] acting in an investigatory capacity,
at least where the [prosecutor] foresees that he himself will use the evidence with a
resulting deprivation of liberty, ... [T]hat right was clearly established in 1996 ..."
Zahrey v . Coffey, 221 F3d 342, 344 (2d Circ., 2000).
7 See, Judiciary Law §487 and §493. See, also, NY Rules of Professional Conduct, Rule 3.3, Rule 3.4,
Rule 3.8, Rule 4.1, and Rule 8.4.
14
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 15/24
Consequently, Trey Smith's alleged fabrication of evidence in his investigatory and
administrative roles for use before the Grand Jury and at trial violated a constitutional
right that was clearly established at the time. "It has also long been established that a
prosecutor who knowingly uses false evidence at trial to obtain a conviction acts
unconstitutionally [citations omitted). Although a prosecutor is protected by absolute
immunity for his actions in presenting evidence at trial [citation omitted}, theses cases
serve to inform every prosecutor that his knowing use of false evidence is
unconstitutional. Any prosecutor aware of theses cases would understand that
fabricating evidence in his investigative role violates the standards of due process and
that a resulting loss ofliberty is a denial of a constitutional right." Id,355-356.
In this case, substantial direct and circumstantial evidence establishes that Trey Smith
orchestrated the fabrication of testimony, suppressed evidence incriminating those who
actually committed the election crimes, and suppressed exculpatory evidence through
intimidation, coercion, and other tactics in his investigative and administrative capacity.
In particular, it is alleged that in his investigative capacity he knowingly fabricated
evidence with the intent to use it in the Grand Jury and at trial to wrongfully prosecuteMcDonough and deprive him of his liberty and rights to due process and a fair trial. It is
alleged that he and others also conspired to do so and acted in furtherance of that
conspiracy. It is also alleged that in his investigatory capacity he made promises arid
threats to those responsible for the election crimes to induce them to give the false
testimony he introduced against McDonough in Grand Jury and trial.
As discussed in Zahrey and other cases, Trey Smith's fabrication of evidence is a due
process violation and the resulting indictment, arrest, detention, restriction on travel and
wrongful prosecution is the liberty deprivation. It is also alleged that his acts deprived
McDonough of his right to a fair trial. In any event, McDonough's indictment and arrest
was the cognizable result of Trey Smith's alleged fabrication of evidence and otherwrongful acts in the improper investigation of the subject election crimes. See, Zahrey,
at 352-353,354. See, also, Reid v. Georgia, 448 U.S. 438, 440 (1980).
Consequently, neither Trey Smith nor DA McNally has absolute or qualified immunity for
the alleged fabrication of false evidence and acting in conspiracy with those named others
to use it to deprive McDonough of his constitutional rights.
7. John Ogden, J. Brown, K. McGrath, K. O'Malley and A. Robillard are Not
Immune from Liability because they Conspired and Testified Falsely to Initiate
and Further the Malicious Prosecution of McDonough and Deprive him of his
Constitutional Rights
In addition to the allegation that those persons conspired with Trey Smith to maliciously
prosecute McDonough and deprive him of his constitutional rights, they were all also
"complaining witnesses" who knowingly and maliciously gave false testimony against
McDonough. It is well established that a complaining witness who provides false
testimony to initiate or further a malicious prosecution has no immunity from civil
liability for malicious prosecution as would such a witness in an action for defamation.
15
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 16/24
Furthermore, they acted in conspiracy with Trey Smith and DA McNally to cause
McDonough's false prosecution in lieu of themselves. Consequently, they are not
entitled to absolute immunity in defense of this action. See, White v Frank, 855 F2d 956,
961-962 (2d Circ. 1988); Zahrey, at p. 351, et al.
8. Claims Established by Irrefutable and Overwhelming Evidence
Most, if not all, of the allegations against Trey Smith, DA McNally and the others are now
a matter of Supreme Court record related to the protracted wrongful prosecution of
McDonough and established by both direct and circumstantial evidence, including the
sworn statements and testimony of voters and those responsible for committing the
subject election crimes, including McGrath, McInerney, DeFiglio, Renna, and Brown, as
well as the patently incredible testimony of John Ogden, 0Malley arid Alan Robillard.
Most, if not all, of those direct and circumstantial facts will be offered into evidence in
U.S. District Court in support of McDonough's claims. As discussed, a lengthy Notice of
Claim was provided to assist the County of Rensselaer in understanding the breath and
nature of this serious matter and enable it to negotiate a settlement in good faith and/orprepare for litigation in advance of the filing of a complaint. There are many relevant
facts in the Notice of Claim, papers and record of the Supreme Court proceeding that, in
the interests of expediency, are not repeated herein. However, many other relevant
papers and records can be obtained once the criminal case record is un-sealed, including
the transcript of the trials.
9. Suffering Caused by Wrongful Prosecution
The devastating adverse affect that the wrongful prosecution has had on McDonough, his
wife and their two teenaged children cannot be overstated. They have suffered greatly
from January 27, 2010, when Trey Smith unexpectedly told McDonough to his face thathe was going to "fuck him" (although he was then not even a suspect), to January 2011
when Trey Smith indicted him based solely on the orchestrated, self-serving false and
improper testimony of two purported cooperating witnesses (in return for complete
immunity) and a police investigator (all of which also conflicted with common sense and
overwhelming evidence of the guilt of those others not being prosecuted, that he ignored
while directing the related criminal investigation), and at all times thereafter, including
sixteen weeks of two intentionally protracted trials that ended on December 21, 2012
with his exoneration on-all (74) felony charges.
For almost three years, McDonough suffered the tremendous stress, financial hardship,
public humiliation and inherent uncertainties of the wrongful prosecution, including the
loss of employment and likelihood of imprisonment if wrongly convicted. McDonough
also suffered the loss of reputation. He and his wife were required to incur overwhelming
legal debt and she was effectively terminated from her long held occupation as a direct
consequence of the prosecution. McDonough was also unable to spend waning time with
his ailing mother, who passed away during the first trial, while he sat in a courtroom
worrying about the toll the wrongful prosecution had and would continue to have on his
family, especially his daughter in her senior high school and freshman college years.
16
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 17/24
In short, for more than two years McDonough's liberty hung in the balance while DA
McNally, Trey Smith and others acted in concert to falsely. prosecute, convict and
imprison him for the crimes they knew were committed by McInerney and other
Democratic candidates and operatives they sought to protect, all of whom stood silently
by as an innocent person was prosecuted for the crimes they committed. One of our
Founding Fathers aptly said that "justice will not be served until those unaffected are as
outraged as those who are." (B. Franklin) McDonough could not have been more
adversely affected by the alleged misconduct of DA McNally and the others who
participated in his wrongful prosecution but only because he was spared a wrongful
conviction and likely imprisonment by a just verdict.
SUMMARY OF WRONGFUL PROSECUTION
Most of the following facts are set forth in the Notice of Claim but repeated because
relevant to the discussion of the wrongful conduct of Trey Smith and DA Mcblally,
A. The Private Investigation Revealed that:Applications Solicited by. Democratic Candidates and Operatives Were
Completed with False Information After Being Signed by Voters, &
AB Released to Democratic Candidates and Operatives were Forged
On or about September 14, 2009 BOE Commissioner Bugbee informed Republican
operative Robert Mtrch that certain Applications were filed for the September 15, 2009
Working Families Party ("WFP") primary election on behalf of people he had registered
in that party. Mirch then spoke to several of those people who told him that McGrath and
others had solicited their signatures on Applications that they did not complete and that
they did not vote by AB. After the election, Mirch obtained the Absentee Voter Master
List Summary for the City of Troy WFP primary of the AB released by and filed with theBOE, which revealed the following:
2 AB were released to Rick Mason (friend and supporter of Democratic endorsed
candidate for Troy City Council, McGrath);
18 AB were released to Thomas Aldrich (friend of city Council Democratic
candidate Michael LoPorto and Democratic political operative);
6 AB were released to DeFiglio (Democratic operative);
2 AB were released to McGrath (Democratic endorsed Council candidate);
I AB was released to J. Brown (Democratic city Council candidate);
6 AB were released to James Welch (WFP Chairman, Renss. Co.);
8 AB were released to Brandt Caird (WFP operative); and
1 AB was released to McInerney (Democratic operative and City Clerk).
Private investigators hired by Mirch obtained affidavits from about thirty-five (35) WFP
voters who confirmed that they signed an Application but did not complete it, did not
sign any Application and/or did not vote by AB. Although several voters identified
DeFiglio or McGrath by name or description as having solicited their Applications, none
identified McInerney or any other person who did so by name or identified any person
who falsely voted their AB by either name or description.
17
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 18/24
Otherwise, it was a matter of common knowledge and common sense that Applications
had to be completed before filed with the BOE for an AB to be released. Therefore, even
in September 2009, it was common sense that whoever sought to solicit AB votes was the
most likely one(s) to have completed falsely or forged the Applications required to be
filed for their release; i.e. the candidates and/or his political operatives.
Most important, there was no evidence to even imply that McDonough was in any
way involved in the election crimes. To the contrary, it was already obvious even
from the simple private investigation that those who solicited the applications and
absentee ballots were involved in the crimes. And, as became clear, the name of all
those involved should have been easily obtained and was through the initial NYSP
investigation. In fact, within weeks, the-NYSP investigators put a readily provable
case together against McInerney, McGrath, Brown, Renna and all the other
Democratic operatives and candidates who committed the crime. Furthermore, the
- evidence they quickly obtained to prove their guilt was overwhelming and
indefensible. However, Trey Smith then took over the NYSP investigation and
commenced the fabrication of evidence against McDonough in effort to protect themand wrongfully prosecute him instead. All of the irrefutable record evidence proves
McDonough's claim against Trey Smith, DA McNally and the others.
B. CivilAction Commenced to Invalidate Forged AB
On September 23, 2009 WFP voter Christian Lambertsen commenced a special
proceeding to invalidate numerous AB filed in the WFP primary based upon sixteen (16)
of those voter affidavits, the affidavit of Mirch and the BOE Absentee Voter Master List
Summary. Those papers showed only that:
i. Forty-four (44) ABs were released to candidates McGrath and Brown
and their operatives/supporters Rick Mason, Thomas Aldrich, Deliiglio, James
Welch, Brandt Caird and McInerney; ~: Only 1 was released to McInerney)
11. At least thirty-five (35) AB were falsely voted and filed with the BOE; and,
111. At least thirty-five (35) Applications were completed falsely after being signed.
Most significantly, no particular person was identified as having falsely voted any AB,
forged any AB envelope or completed falsely any Application. Again, however, it was
general knowledge and a matter of common sense that only those who stood to benefit
from the obvious broad-scoped scheme to falsely vote AB were the Democratic
candidates and party operatives who also were known to have been involved in a
concerted effort "get out the vote" by AB .
The record of the civil proceeding, in which Trey Smith directly participated,
confirmed that the elections crimes were committed by those Democratic operatives
and candidates who "worked the streets" to solicit the absentee ballots. That fact
could not have been missed, despite the fact that Brown then committed perjury.
Also, Trey Smith worked with McDonough and other employees of the BOE during
that time to gain a:firm understanding of the election process, etc.
18
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 19/24
C . DA McNally Unlawfully Disqualified Himself from Any Investigation or
Prosecution & Had Trey Smith Unlawfully Appointed Special District Attorney
As stated, on September 28, 2009, DA McNally unlawfully disqualified himself from the
matter without filing any motion or showing a legal basis for the same. At the same time,
he obtained an ultra vires court Order appointing his friend and-fellow Democrat Trey
Smith special prosecutor by purported unsigned, un-stamped letter request to the County
Court and in chambers off-the-record conference. See, affidavit of DA McNally dated
July 7,2011, and his purported September 18, 2009 letter in your possession.
Consequently, DA McNally unlawfully disqualified his office from a broad-scoped
investigation of what the Trey Smith later publicly called "massive voter fraud' and the
prosecution of all persons rather than from "a particular case" (i.e. person) as required by
County Law 701. It is also clear from his insufficient purported letter and related court
Order that DA McNally did so without showing any actual or substantial likelihood of
prejudice to any particular defendant because of a conflict of interest or abuse of
confidence, as required by well-established law. See, Legal Brief (provided to Countyofficials in support of McDonough's request that they take proper action to declare Trey
Smith's appointment void and prevent his wrongful prosecution).
In fact, in his purported letter DA McNally specifically asked for the appointment of Trey
Smith "to avoid the appearance of impropriety" (i.e. presumably from the investigation or
prosecution of fellow Democratic candidates, officials and/or operatives).
Parenthetically, aside from all other matters, he never even attempted to show any
sufficient legal basis for his disqualification from the investigation or prosecution of
McInerney, McDonough or any other particular person.
The related court Order also specifically states that DA McNally "disqualified himself andhis staff' for acting in the matter pertaining to the investigation of the Lambertsen action
"based on the speculation of politics and the appearance of impropriety ..." See, Order,
(Jacon, J.) dated September 28, 2009. Thus, DA McNally effectively had Trey Smith
appointed ''for all purposes" in the investigation and prosecution of any person related to
the subject broad-scoped "massive voter fraud".
Later, even with the benefit of hindsight and said Legal Brief, DA McNally opposed
McDonough's motion to disqualify Trey Smith by asserting that he and his staff were
disqualified from the matter based on the affidavits of the voters and Mr. Mirch in
support of the Lambertsen action. See, DA McNally July 7, 2011 affidavit in your
possession, especially paragraph 11. In short, DA McNally therein asserted for the first
time that it was his opinion on September 26, 2009 that he was disqualified from
investigating or prosecuting any person for any of the subject election crimes because:
i. McInerney had worked on his 2007 campaign;
ii. DeFiglio had done campaign work with McInerney in the past;
11 1. He had contact with James Welch during his 2007 campaign; and,
IV. He believed that Brandt Caird had worked on his 2007 campaign but did not
know whether Tom Aldrich did.
19
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 20/24
However, DA McNally's retrospective reliance on the Supreme Court (Queens County)
1973 decision in People v. Schrager (74 Misc. 2d 833) is misplaced. Suffice it to say,
that case is inapposite for several reasons. Firstly, the court in Schrager found that the
District Attorney had shown by good faith application a conflict of interest and potential
abuse of a confidence, based on professional and personal relationships, that disqualified
his office from prosecuting a fellow prosecutor (the exact factual basis is not reported).
Secondly, the Schrager decision pre-dates by a decade the seminal Court of Appeals
decisions in Matter of Schumer v. Holtzman and People v. Herr, as well as later higher
court cases. All of those decision establish, as Trey Smith correctly stated in opposition
to McDonough's motion to disqualify him based on the speculation of politics,
appearance of Impropriety and actual prejudice, that "[tjhe courts, as a general rule,
should remove a public prosecutor only to protect a defendant from actual prejudice
arising from a demonstrated conflict of interest or a substantial risk of an abuse of
confidence ... The objector should demonstrate actual prejudice or so substantial a risk
thereof as could not be ignored. (Also see People v. Herr. 86 NY2d 683, a right to
counsel case confirming the Schumer thresholds)." Clearly, that law was established for
more than 20 years before DA McNally unlawfully disqualified himself from the matterin September 2009. See, Legal Brief.
Parenthetically, DA McNally's assertion is also contrary to the fact that in January 2008
he failed to move to disqualify his office from the publicly-reported Grand Jury
investigation of the Rensselaer County Democrat Party Chairman who selected him as
the Democratic candidate for District Attorney and assisted him in winning election in
2007. Additionally, it is at odds with the fact that he later-failed to disqualify his office
from the prosecution of criminal charges against the daughter of the Democratic Party
Chairman from whom he intended to, and did, later seek the nomination for candidate fat
Supreme Court Justice. In fact, it is well known that the Chairman will effectively
choose that nominee for a Supreme Court vacancy this year.Therefore, DA McNally implicitly conceded that he did not have a legal basis for his
disqualification on September 28, 2009. Even still, he failed to show any conflict of
interest or abuse of confidence that would have actually or likely prejudiced any person
by his investigation or prosecution of any matter (although any such retrospective
justification still would not have cured the unlawful appointment in 2009). In any case,
he did not on September 28, 2009 establish a legal basis for his disqualification.
For the reasons discussed in the Legal Brief, DA McNally did not establish any basis for
his disqualification from the prosecution of any particular person or defined matter.
Therefore, he could not legally have been disqualified from such a patently broad-scoped
investigation or prosecution of all guilty persons. In short, DA McNally failed on
September 28, 2009 to provide any basis for his disqualification from any particular case.
Later, even after the unlawful nature of his disqualification was exposed and discussed at
length with county officials and the Court, DA McNally opposed the disqualification of
the Trey Smith and dismissal of the indictment against McDonough, despite knowing that
all of his actions and any conviction would ultimately be declared null and void because
the he was acting outside the law pursuant to an invalid court Order.
There can be no serious doubt about the fact that DA McNally and Trey Smith knew the
20
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 21/24
goals of McDonough's wrongful prosecution would for all practical purposes be satisfied
with any conviction even if later reversed because of the unlawful disqualification DA
McNally and appointment of Trey Smith. By then, the case would have been all but
forgotten and no one else would ever have been prosecuted.
It is also obvious from their otherwise inexplicable actions that neither DA McNally nor
Trey Smith expected McDonough to thwart their plan by bringing about the intervention
of the FBI and a NYSP Sr. Investigator that forced the prosecution and conviction of
Mclnerney (although jurisdictionally defective and invalid), J Brown (ditto), DeFiglio
and Renna, who along with others never prosecuted, committed the subject election
crimes, including those for which McDonough was falsely prosecuted in lieu of them.
To clarify the simple point, DA McNally's unlawful self-disqualification was merely
an essential step in the wrongful prosecution of McDonough. That act is not alone is
not the basis of McDonough's claim. It is that act, together with the fabrication and
suppression of evidence and the other clearly administrative, investigatory, extra-.
judicial and illicit conspiratorial acts of Trey Smith, DA McNally and the others toinitiate and continue the wrongful prosecution of an innocent person in lieu of -those
guilty of the election crimes that provides the basis for McDonough's claims ..
D. Investigation Directed, Supervised and Conducted by Trey Smith Revealed:
Overwhelming Evidence of Guilt of K. McGrath, W. McInerney, J. Brown, A.
DeFiglio, and other Democratic Candidates and Operatives; &,
Tire Completion of ApplicationsPrior to Filing with the BOE was Integral to
the Forging of AB for Democratic Candidates
Thereafter, a criminal investigation into the elections crimes was directed, supervised and
conducted by Trey Smith with assistance of the NYSP. That investigation resulted in theaffidavits of more than fifty (50) voters and witnesses by November 2009 that irrefutably
established all the subject elections crimes were "street" crimes committed by McGrath,
McInerney, Brown, DeFiglio, and others. There was no evidence even implicating
McDonough in any criminal conduct.
Again, a few voters identified McGrath and DeFiglio by name as having solicited their
Applications and AB that were later completed falsely, forged andlor voted without
permission. More importantly, DeFiglio specifically identified McInerney and Brown by
name as being involved in those crimes. A number of voters also accurately identified
those two culprits by description although their testimony was never confirmed through
proper investigation.
In sum, the overwhelming testimonial and documentary evidence obtained by November
2009 proved that all of the elections crimes were committed on the streets by identified
and/or readily identifiable Democratic candidates and political operatives. Furthermore,
that fact could not have been missed in November 2009 and is now a matter of irrefutable
trial evidence. Also, Trey Smith and the NYSP possessed the elections documents that
corroborated that evidence in November 2009 and at all times thereafter.
21
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 22/24
In fact, DeFiglio admitted in a sworn written statement on or about October 2009 that he
and other political operatives and candidates were involved in the solicitation and false
voting of the AB of public housing residents in September 2009 and the past 25 years.
He and NYSP Investigator Ogden also testified at trial that no attempt was made by the
NYSP or Trey Smith to obtain any specific evidence from him about those crimes or the
identity of those Democratic operatives and/or candidates who had committed them in2009 and past years when he gave his statement or thereafter although he was ready,
willing and able to provide details about the same.
The criminal investigation also revealed by November 2009 that the completion of
Applications and AB envelopes with false information and/or forged signatures was
integral to their false voting of ABs. At trial, DeFiglio testified that when he gave his
written statement in October 2009 and again 2010 he admitted that fact and told the
NYSP and Trey Smith that their prosecution theory the Applications were purposely left
blank when voter signatures were solicited so they could be completed falsely by
McDonough in the BOE simply made no sense. At the same time he admitted that the
Applications would be completed falsely and/or forged by the political operatives andcandidates prior to filing with the BOE so that the AB would be released and then either
returned to the voters or forged.
Still, Trey Smith ignored the overwhelming evidence of the guilt of all the Democratic
operatives and candidates and, it is alleged, acted in concert with DA McNally and/or
others to fabricate evidence and wrongfully scapegoat prosecute McDonough to protect
from prosecution McGrath, Mclnerney, Brown and/or other Democratic operatives guilty
of all the elections crimes committed in 2009 and prior years, the identities of whom were
known or should have been known through proper investigative efforts.
Trey Smith could not suppress the overwhelming evidence against Mcinerney,Brown, DeFiglio, Renna and others or prosecute McDonough for the crimes they
committed, i.e. the forging of voter signatures and falsely voting of absentee ballots.
So, he simply ignored it, falsely told the supervisory NYSP investigator that they
could not be prosecuted and boldly embarked on the fabrication and suppression of
evidence to scapegoat prosecute McDonough for falsely alleged acts that are not
even crimes as a matter of law, i.e. the entry of false information on applications
after the voters had signed them or had their signatures forged by those others. The
audacity of his actions reflects the existence of the conspiracy and the reason for its
criminality, one person will likely not commit a bold crime alone. The facts clearly
reflect that Trey Smith found an all to willing co-conspirator in McGrath who
received complete immunity for crimes that could not but be readily proven against
him purportedly before any proffer of information, despite the fact that he denied
committing any crimes and essentially claimed that the victimized voters were lairs.
22
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 23/24
E. Indictment of McDonough Based on False Incrimination of K. McGrath in
Return for Immunity; False Handwriting Opinion of NYSP Inv. J. Ogden and
False Incrimination of K. 0 'Malley for Immunity from Purported Perjury
As discussed at length in the Notice of Claim, Trey Smith obtained an indictment based
solely on: (1) the false incrimination of McGrath that McDonough wrote false excuses ontwo Applications that McGrath filed for his own benefit, (2) the false and improper
"opinion" of Ogden that the delivery agent names and/or excuses on all the questioned
Applications were writing in the same handwriting and in a pattern showing they were
written by the same person; and, (3) 0 'Malley's false and contradictory testimony that
"his boss" made him write false excuses in certain Applications after he was threatened
with prosecution for purported election crimes and perjury and Trey Smith called him at
his home the night before he returned to the Grand Jury to change his testimony.
F. Grand Jury Presentation When Insufficient Evidence for Indictment
In fact, the irrefutable trial evidence. and other record facts prove that when Trey Smithbegan presenting a case against McDonough to the Grand Jury it was based solely on: (1)
the patently insufficient, incredible and uncorroborated testimony of McGrath in return
for complete immunity for crimes readily provable by overwhelming testimonial and
documentary evidence - all of which he brazenly completely contradicted, and (2) the
patently insufficient, incredible and improper testimony ofNYSP Investigator Ogden that
the handwritten excuses and delivery agent names on all the questioned Applications
appeared to be written in the same handwriting and reflect a "pattern" evidencing one
author. Furthermore, all of those allegations were contrary to the facts that were or
should have been obtained by Trey Smith and Investigator Ogden from DeFigiio, other
witnesses and the BOE documents.
It was months later, and only after McDonough gave notice of his intent to testify before
the Grand Jury (which fact was apparently "leaked" by Trey Smith and publicly reported),
that Trey Smith orchestrated 0 'Malley's false incriminations against McDonough,
purportedly in return for immunity from prosecution for forgery as a "key" player in the
subject elections crimes and several counts of perjury before the Grand Jury. See,
discussion in Notice of Claim.
G. McInerney's Threat to "Take Everyone Down" and Relationship DA McNally
Mclnerney's conduct and relationship with DA McNally is of particular concern because,
as stated, soon after the elections crimes were discovered (within days of their
commission) he threatened to "take everyone down" with him if prosecuted.
H. Other Salient Fact Discovered at Trial
Lastly, as stated, solely because of the two trials, many salient facts previously known
only to DA McNally, McInerney and other Democratic candidates and/or operatives who
committed the subject elections crimes were elicited on cross-examination. Most
23
7/27/2019 7_19 Premo Letter
http://slidepdf.com/reader/full/719-premo-letter 24/24
significant among them are the above stated facts concerning McInerney, his close
personal relationship with DA McNally, the advice that DA McNally gave to McInerney
concerning at least his legal representation, and the admissions of McInerney and Brown
that Trey Smith told their attorneys in 2009 and thereafter that they would not be
prosecuted for the subject election crimes.
McInerney also admitted that after he was terminated from his NYS employment he
worked hard obtaining AB votes for its candidates in 2007 and in return for, among other
things, obtaining AB in support of the successful elections of DA McNally and a majority
of the Troy Council, he was awarded the most coveted patronage appointment of Troy
City Clerk. He also testified in substance that he was forced to commit the subject
election crimes in effort to keep his job by ensuring that the Democrats maintained a
majority of the City Council.
Thus, substantial testimonial and documentary evidence establishes McDonough's
claims and preclude the application of immunity for any defendant.
Thank you for your courtesy and consideration.
Respectfully,
PREMO LAW FIRM, PLLC
cc: Mr. McDonough