The Journal News: Charges withdrawn, but judge won’t seal man’s case

Source: The Journal News; Lee Higgins, 12:14 p.m. EDT August 17, 2015

Mugshot, fingerprints available, although no crime will be prosecuted

— If Ray DiFrancesco applies for a job or liquor license, a background check will trigger a hit in a state computer, revealing his mugshot and fingerprints. Should anyone in the small village tucked against the Hudson River in Putnam County want the police report from the fight he was involved in last year outside his stepson’s bar, they simply have to file a request with police.

They could even learn his date of birth, religion and where he has scars and tattoos.

But DiFrancesco has committed no crime.

In fact, prosecutors withdrew all charges. The records are only available because Village Justice Thomas Costello refused to seal the case, making the extremely rare decision without specifying reasons as the law requires. DiFrancesco has been denied a right afforded to tens of thousands of other people in New York who have misdemeanor cases dismissed each year.

That break from standard practice by Costello is improper, legal experts say. Bennett Gershman, a professor at Pace University School of Law in White Plains, said any case resulting in a favorable disposition for the defendant should be sealed.

“I think withdrawal is clearly a basis for sealing,” Gershman said. “If the judge is looking for a hook to keep the defendant under a cloud of criminal suspicion, the judge is acting in complete bad faith and should be sanctioned for something like this.”

Costello said he stands by his decision not to seal the file and wasn’t biased. In fact, he said, he released DiFrancesco at his arraignment on a promise to appear. “I think anyone who sees the record will find that I was fair and impartial all the way through,” he said.

DiFrancesco’s legal odyssey began in the early hours of New Year’s Day 2014. A brawl erupted outside his stepson’s restaurant Whistling Willies, a cozy, hip joint on Main Street, and he was called outside to break it up. He was arrested a month later on misdemeanor charges of assault, reckless endangerment and making a false statement. DiFrancesco said Costello made biased comments throughout the case and seemed to want it to go to trial.

“The understanding I had was the district attorney was not going to proceed with prosecuting the case,” said DiFrancesco. “That it was going to be sealed. That it’s over like it never happened and I’m going to walk out a free man with this 800-pound gorilla off my back. … All the charges were dropped. Why should I have a mugshot? Why should I have fingerprints?”

Costello, he said, has “made it personal.”

“He has a vendetta against me because he didn’t get his way,” DiFrancesco said.

Costello refused to seal the case after insisting prosecutors change language in a court filing in May to reflect that they were withdrawing misdemeanor charges against DiFrancesco, not dismissing them.

“After reviewing the applicable statute, it appears that a Withdrawal of the Charges by the District Attorney does not constitute a termination of a criminal action or proceeding…” Costello wrote to DiFrancesco’s lawyer, Larry Silverman on May 20, two days after Silverman asked for the sealing order.

At one point, prosecutors proposed a deal that would have required DiFrancesco stay out of trouble for a period of time, but Costello rejected it. Putnam County Chief Assistant District Attorney Chana Krauss said in a statement: “The Putnam D.A.’s Office has no further comment on this matter.”

DiFrancesco is weighing filing a complaint with state Commission on Judicial Conduct, which investigates allegations of judicial misconduct. It was bad enough, he said, to pay legal fees for 15 months, be humiliated in the local newspapers and have parents not wanting school fundraisers held at his stepson’s restaurant. Some families he knew from when he coached Little League didn’t want to associate with him after the arrest, he said. Local bands had second thoughts about playing at Whistling Willies.

The curious legal drama is playing out among the scenic village’s some 2,000 people, where hiking, kayaking and cycling are more commonplace than courtroom maneuverings. Just 50 miles north of New York City, it sports a variety of eateries and shops in less than one square mile and is listed on the National Register of Historic Places. Singer and songwriter Don McClean called it home when he penned at least part of the iconic “American Pie” ballad.  Scenes from “War of the Worlds” starring Tom Cruise were filmed here. The town’s police department has a little more than a dozen officers who work part-time.

“It’s embarrassing,” said DiFrancesco, a retired carpenter who lives in Putnam Valley. “I’m a father. To be accused of doing something like that … It’s terrible. I lost a lot of nights sleep for something I didn’t do.”

Judge Costello’s decision was a rare one. In 2012, the state Division of Department of Criminal Justice Services reported 308,864 misdemeanor dispositions. The department tracks all crimes for which fingerprints are taken. Of those cases, only 1,119 or just .36 percent were eligible to be sealed, but not sealed according to court order. DiFrancesco wonders if Costello remains upset from a case several years ago, when DiFrancesco spoke up on behalf of his son who had some traffic tickets.

“He didn’t like that,” DiFrancesco said.

The disposition of the case — sent to the Office of Court Administration on July 27, three days after the newspaper spoke to Costello — was that the case was dismissed, not sealed, OCA spokesman David Bookstaver said. Court rules require the disposition be sent within a maximum of 48 hours, OCA confirmed.

Silverman, DiFrancesco’s lawyer, pledged to never return to Costello’s courtroom, saying, “This was the last thing he (Judge Costello)  could do to prejudice the defendant.”

Rules of judicial conduct dictate that judges be impartial. Lawyer John Zarcone, who represented DiFrancesco for one hearing and reviewed transcripts of court proceedings in the case, said Costello was anything but impartial.

For instance, Zarcone pointed to a hearing May 18 when DiFrancesco was in front of a jury, prior to the case being dismissed. Assistant District Attorney Chana Krauss said there was no “legal or factual basis to prosecute the defendant…” Costello said it was within the discretion of the district attorney’s what to prosecute and, “The fact that a crime is committed does not put any obligation upon him to prosecute it,” the transcript shows.

DiFrancesco interpreted the comment to mean Costello was saying he committed a crime, even though the charges were being withdrawn.

Costello said he doesn’t recall saying that, but stands by anything he said in court.

Zarcone pointed to another hearing, on May 4, when Costello said, upon rejecting the deal prosecutors proposed, “If Mr. DiFrancesco did not commit these assaults, he certainly knows who did and certainly not cooperating with the police or anybody else today.”

When asked about the case by a reporter, Richard Grayson, a White Plains lawyer who represents judges and lawyers investigated or charged with professional misconduct, said, “Based on what you’ve told me, I question whether the judge has acted impartially as required.”

The bar fight

The case centered around a fight at about 2 a.m. New Year’s Day 2014. David Kinnaird, whose family DiFrancesco has known for years, returned to Whistling Willies to pay his tab and ask for a ride home through the restaurant’s Safe Ride program, which is offered as a courtesy.

Safe Ride driver Jason Aber agreed to give him a lift, but Kinnaird said he had to use the bathroom, Aber’s statement to police says.

“I said, ‘fine, go ahead,’ but then he never went to the bathroom and he started harassing the customers again,” Aber said in the statement. “Then I went up to him and said you have to leave now … We got him outside and (he) started to say that he runs Cold Spring and he will call 17 people to come kick my ass.”

Kinnaird had been drinking for hours that night, he would later tell police. The two got into a heated argument, a restaurant surveillance video shows, and Aber pushed Kinnaird down. Kinnaird got up, threw a punch and a fight ensued.

DiFrancesco, who stopped by the restaurant a couple hours earlier to help out as a second Safe Ride driver, went outside to break it up. He grabbed hold of Kinnaird who punched him, the video shows.

“He threw me over a table,” DiFrancesco said. “He assaulted me … I was just trying to break something up.”

Kinnaird stumbled, the video shows, as DiFrancesco pushed him to the ground. Police alleged DiFrancesco punched Kinnaird several times and kicked him repeatedly. The police also claim that DiFrancesco and several others carried Kinnaird up the street and left him out in the extreme cold while he was highly intoxicated.  Kinnaird was allegedly left with an injured knee that required surgery, a police report says. He said in his statement that he remembers telling police he was hit with a baseball bat.

DiFrancesco said he helped Kinnaird that night. “If anything, I helped save his life because he fell…and cars were going by,” he said.

Kinnaird was not charged. Prosecutors would not discuss anything about the outcome of a case that was brought against Aber. Kinnaird and Aber could not be reached for comment.

DiFrancesco’s lawyers have written Supervising Judge Charles Apotheker and asked he review Costello’s decision and conduct, arguing Costello was biased and disrespectful, not only to DiFrancesco, but prosecutors as well. Apotheker declined to comment through a spokeswoman.

The lawyers said once the case is sealed, DiFrancesco can legally say he’s never been arrested.

“This case is far from over,” DiFrancesco said.