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Judge Larry Schwartz Says Grand Jury Proceedings Were Not Defective; Case Is Moving Toward A Trial
By Tina Traster
An attorney’s efforts to dismiss the case against the indicted Hi-Tor president Debbie DiBernardo were denied by Rockland County Court Acting Justice Larry J. Schwartz on Tuesday.
Additionally, the prosecutor offered a plea deal to DiBernardo in which the felony charge would be dropped if she pled guilty to one misdemeanor, accepts three years of probation, agrees not to handle the books at Hi-Tor, and agrees to provide evidence against others regarding alleged continuing crimes at Hi-Tor.
DiBernado maintains her innocence and has opted not to take the plea. She continues to serve as the shelter president and is grappling with a potential takeover from Rockland Green (the former Solid Waste Management Authority). Last week, New York lawmakers passed a bill allowing Rockland Green to amend its charter to allow it to operate an animal shelter.
Gerard Damiani, the attorney representing DiBernardo in a criminal indictment alleging the filing of false documents, had asked for his client’s case to be dismissed on several grounds, and had said the grand jury was misled because the District Attorney predicated its evidence on an inaccurate interpretation of the contractual obligations between the county and the shelter that guide the intake of animals to the Hi-Tor Animal Shelter in Pomona. The papers said the grand jury relied on testimony from a health department employee and a former shelter manager, rather than the contract itself or letters from the county attorney that interpret the contract terms between Hi-Tor and Rockland County.
Acting Justice Schwartz, in a written opinion on June 7, wrote that dismissal of an indictment is an “exceptional remedy” that should…be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or efforts potentially prejudice the ultimate decision reached by the Grand Jury.”
Essentially, the judge disagreed with Damiani’s motion, saying the grand jury proceedings were not defective and that the assistant district attorney properly instructed the grand jury on the law.
“The evidence presented, if accepted as true, is legally sufficient to establish every element of each offense charged,” the justice wrote, despite Damiani’s claim that the prosecutor failed to present the workings of the contract in a factual light.
In his motion to dismiss, Damiani had argued the prosecutor’s failure to introduce the terms of the five-year contract between Hi-Tor and the county, which dictates how the county collects funds from the towns to support the shelter and distributes those funds to Hi-Tor, “deprived [the] defendant of a fair presentation of existing evidence resulting in prejudice to the defendant.”
Hi-Tor does not have a contract with any of the towns. It contracts with the county, and the county has intermunicipal agreements with Rockland’s towns.
Additionally, Daminai had alleged the grand jury was misled when it was told that it is illegal for Hi-Tor to take in cats from outside Rockland County. Rockland County Attorney Thomas E. Humbach has confirmed in a letter to Hi-Tor “that nothing in the county’s contract with Hi-Tor prohibits taking in animals from outside the county so long as it is not turning away cats from the county.” Damiani had said the grand jury was not aware of the county attorney’s position because the DA did not introduce that evidence.
In January, DiBernardo was indicted by a Rockland County grand jury for one felony count of offering a false instrument for filing in the 1st Degree and 17 misdemeanor counts of falsifying business records in the 2nd Degree. The prosecution of the case is unfolding amid the county’s plan to build an $8.3 million shelter, efforts by Rockland Green (the former Rockland County Solid Waste Authority) to take over the shelter’s operations, and the county’s upcoming need to renegotiate its contracts with the towns, which expire this year.
In dispute is whether DiBernardo instructed Kartis to falsely record the jurisdiction of 17 kittens that came from New Jersey, or whether Kartis did that on her own volition. Either way, the defense charges, the intake had no impact in any way on the allocation to the towns or amount of funding.
The prosecution’s indictment alleges DiBernado “reported a false instrument to the Rockland County Department of Health” because Hi-Tor is mandated to accurately report the numbers of animals received from each town and to report the results to the town and to the Rockland County Department of Health.
The parties are due back in court on June 28th.