1

1 STATE OF NEW YORK

2 TOWN OF WEST SENECA JUSTICE COURT : COUNTY OF ERIE

3 --------------------------------------------------

4 THE PEOPLE OF THE STATE OF NEW YORK

5
-vs-
6
NICHOLAS J. ORTICELLI,
7

8 Defendant.

9 --------------------------------------------------

10

11 Proceedings held before the HONORABLE

12 SHANNON E. FILBERT at the Town of West Seneca Justice

13 Court, 1250 Union Road, West Seneca, New York on Tuesday,

14 November 19, 2019, commencing at 8:25 P.M., before Wendy

15 Royce McCann, Registered Professional Reporter, Notary

16 Public.

17

18 APPEARANCES: JOHN J. FLYNN, ESQ.

DISTRICT ATTORNEY
19 BY: MEGAN E. MAHONEY, ESQ.
ASSISTANT DISTRICT ATTORNEY
20 25 Delaware Avenue
Buffalo, New York 14202
21 Appearing for the People.

22 JAMES OSTROWSKI, ESQ.

63 Newport Avenue
23 Buffalo, New York 14216
Appearing for the Defendant.

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1 P ROC E E DIN G S

2 THE COURT: State your appearances for the

3 record.

4 MS. MAHONEY: Megan Mahoney for the People.

5 MR. OSTROWSKI: Mr. Ostrowski for Mr. Orticelli, and

6 the defendant is present.

7 THE COURT: Thank you. I am first going to start

8 with case 19030215, that was the

9 matter that started, Penal Law

10 240.26, harassment, a violation. I

11 believe it started with Judge

12 Harrington. He was arraigned on that

13 case on March 22, 2019 and there was

14 an oral motion to dismiss in front of

15 Judge Harrington. Judge Harrington

16 reserved on the decision for the oral

17 motion. It is my understanding that

18 defense counsel consented to a

19 six-week ajournment out to May 3rd

20 and no time counted at that juncture

21 since defense counsel consented to

22 the adjournment which was beyond the

23 30 day window, which I am assuming

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1 they would not have consented to if

2 they knew that the time would be

3 dead. I also have that you also

4 filed a motion, written motion in the

5 interim, and that was filed on April

6 18th of 2019 which also would toll

7 the 30.30 speedy trial clock.

8 The next court date on this was June

9 14th, these were all in front of

10 Judge Harrington on prosecutor night.

11 The prosecutor, I believe, was Jon

12 Minear. At that juncture the case

13 was adjourned at court since the

14 prosecutor stated that the district

15 attorney will be filing misdemeanor

16 charges. The matter was still tolled

17 by the speedy, speedy trial clock due

18 to the pending motion. There was

19 another court date which is also on a

20 Vehicle and Traffic violation night

21 in front of Judge Harrington that was

22 July 12, 2019. At that time the case

23 was adjourned again at court since it

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1 was everyone's understanding since a

2 new misdemeanor information was

3 filed, it was scheduled to be

4 arraigned in front of me on July 16,

5 2019 in the criminal court.

6 Again, that case, the 240.26 was

7 still tolled due to the pending

8 motion. So the motion I have in

9 front of me for that date which is

10 filed April 18, 2019 on grounds of

11 speedy, speedy 30.30 is therefore

12 denied. I do not find that they have

13 been beyond the 30 days.

14 With respect to the other charge

15 of 19060641, Penal Law 240.30

16 subsection lA, aggravated harassment

17 in the second, a summons was issued

18 on June 28, 2019. The defendant was

19 subsequently arraigned in front of me

20 on July 16, 2019. At that time the

21 People declared ready and there was

22 an adjournment for motions. Defense

23 filed a motion on August 21st of

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 1 2019, although the People already

2 declared ready, that also tolled the

3 30.30 speedy trial clock.

4 On August 27, 2019 the court was

5 adjourned again and came back on

6 October 8th and there was a mixup

7 with the court having all the motions

8 in front of it and we are here today

9 on that decision.

10 With respect to 30.30 speedy

11 trial for the 240.30, the motion is

12 denied. I do not find that the time

13 is up with respect to that.

14 There was also a motion, again we

15 are dealing with several motions, I

16 am kind of just combining them, so if

17 you need me to delineate more

18 specifically, you can ask me

19 questions at the end.

20 You also allege a defective

21 violation for the information on the

22 240.26 and also a defective

23 information with the 240.30

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1 subsection lA, aggravated harassment.

2 This court in reviewing facial

3 insufficiency, I must subject the

4 allegations to a fair and not overly

5 restrictive or technical reading

6 pursuant to People -v- Casey 95 NY 2D

7 360. Informations need only contain

8 allegations of fact that give the

9 defendant sufficient notice to

10 prepare a defense and to avoid double

11 jeopardy. On the other hand whether

12 a jury will conclude after trial that

13 beyond a reasonable doubt the

14 defendant uttered a true threat

15 rather than an angry outburst is not

16 an issue before the court at this

17 time. At the pleading stage the

18 court cannot find that the language

19 is incapable of constituting a true

20 threat as a matter of law. People

21 -v- Olivio, 6 Miscellaneous 3D 1034.

22 In the case at hand both accusatory

23 instruments provide the defendant

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1 with sufficient notice to prepare a

2 defense and to avoid double jeopardy.

3 Therefore, the defendant's motion for

4 an order dismissing both counts of

5 the accusatory instruments is hereby

6 denied.

7 There is also an allegation that

8 freedom of speech in the First

9 Amendment is being violated due to

10 these charges. The freedom of speech

11 is not absolute. The Federal

12 Constitution according to the First

13 and 14th Amendments allows the states

14 to prohibit true threats to engage in

15 physical violence. The First

16 Amendment does not protect the

17 statement whether the speaker means

18 to communicate a serious expression

19 of an intent to commit an act of

20 unlawful violence. So all those

21 motions pending in front of this

22 court are denied and it's my

23 understanding we are ready to

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1 schedule a pretrial conference or a

2 trial date. You let me know how you

3 want to proceed.

4 MR. OSTROWSKI: Well, a couple of issues. We also

5 move to dismiss on the ground of

6 First Amendment retaliation which has

7 nothing to do with the alleged

8 statement, but has to do with the

9 fact that we filed a motion to

10 dismiss the violation, that's a

11 petition under the First Amendment

12 which protects the right to petition

13 for redress of grievances. In

14 response to that, the case was

15 shifted from Judge Harrington to you,

16 the case was shifted from the

17 prosecutor to the district attorney's

18 office, and the charge was upped to a

19 misdemeanor. There is no explanation

20 for any of that and I sought out an

21 explanation. In fact, I think I

22 alleged in my papers that the

23 district attorney would not meet with

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1 me, which had never happened with me

2 and I have never heard of anybody,

3 any attorney not being allowed to

4 meet with the district attorney, and

5 in response to that argument, my

6 colleague did not respond to that

7 argument, so that motion should

8 really be outstanding before the

9 court as not being replied to and

10 there should at least be an

11 evidentiary hearing so we can get to

12 the bottom of why Mr. Orticelli is

13 being retaliated against.

14 THE COURT: I don't have enough information in

15 front of me to decide that motion. I

16 don't know if you would like an oral

17 response to that, counselor, or if

18 you would like me to set it down for

19 an evidentiary hearing. You let me

20 know how you would like to proceed.

21 I don't have enough in front of me to

22 make a ruling, other than the fact

23 that I didn't get a response and --

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1 MR. OSTROWSKI: Well, if I may, I mean, if I could --

2 THE COURT: Go ahead.

3 MR. OSTROWSKI: There being no response, I would ask

4 for summary judgement or at a minimum

5 an evidentiary hearing where I will

6 call witnesses and I will get to the

7 bottom of why this case, which

8 started out as a violation and then

9 Mr. Orticelli takes an aggressive

10 litigation stance through me, and

11 then all of a sudden it's a

12 misdemeanor. And I think that needs

13 to be explained. So I would request

14 an evidentiary hearing on that, Your

15 Honor.

16 THE COURT: Ms. Mahoney, anything you like to

17 state now or is there anything that

18 you would like to put in writing so I

19 can complete my decision on it? The

20 underlying portion to his motion,

21 that has not been decided.

22 MS. MAHONEY: Sure, if we could have a chance to

23 put that in writing, that would be

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1 appreciated, if we could have a

2 chance to respond to that in writing.

3 THE COURT: I am wondering why it was not

4 answered to date since this case has

5 already been delayed and I take full

6 responsibility for the delay.

7 MS. MAHONEY: Just to clarify, Your Honor, I

8 believe on page four of the People's

9 responding affidavit, we do address

10 the issue of the First Amendment

11 argument.

12 THE COURT: With respect to the retaliation?

13 MS. MAHONEY: Judge, I can't say that I heard of

14 that argument.

15 THE COURT: I think it was in his third motion.

16 I know we are dealing with so many

17 motions, it's confusing, so I am not

18 putting anything, I mean, I have only

19 got two e-mails.soIcan understand

20 how there has been a little bit of

21 confusion. I had it all laid out on

22 my table, so I understand that. I

23 respect it and I just want to make

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1 sure that we cover all the bases. I

2 don't know if it was on your

3 Memorandum of Law or what motion is

4 was on. Maybe we can get the

5 specific motion date because we have

6 four motions filed by the defense,

7 just so that we are clear.

8 MR. OSTROWSKI: I don't believe there was a response

9 to that and --

10 THE COURT: I couldn't find one going through

11 mine, but if you could find exactly

12 in your motion what motion it is on

13 because we have several motions in

14 front of us, that way we can leave

15 that motion open.

16 MR. OSTROWSKI: I may not have it in front of me. My

17 motion dated July 12th, the

18 retaliatory argument was made in my

19 affirmation, certainly on page three,

20 I am trying to think of where it

21 starts, on page two at paragraph 11

22 continuing on through page three,

23 paragraph -- page four, I think,

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1 through paragraph 18, that's where

2 the retaliation argument is made. I

3 quote Judge Gorsuch when he was on

4 the tenth circuit on page three, and

5 I don't believe there was any

6 response to that. I could be

7 mistaken, but that's my recollection.

8 MS. MAHONEY: Judge, just to respond to that, just

9 by upping the charge, it doesn't mean

10 we are retaliating against somebody.

11 Just given the evidence that we have

12 in our possession, our office is

13 making the decision to pursue it as a

14 misdemeanor, rather than a violation.

15 So to view it as retaliation, I take

16 issue with that.

17 THE COURT: Are you withdrawing the violation and

18 moving forward just on the -- I can

19 understand if that was done then,

20 then yes, that would make sense, but

21 I mean we still have two charges in

22 front of us for the same incident, so

23 are you going forward on the 240.30,

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1 rather than the 240.26?

2 MS. MAHONEY: Yes, that's my understanding.

3 THE COURT: Are you withdrawing that? In other

4 words --

5 MR. OSTROWSKI: You make a good point, Your Honor. I

6 was under the assumption --

7 THE COURT: I think that's fair, that they do

8 that all the time, just like they

9 reduce them down, they do raise them.

10 MR. OSTROWSKI: Well, it's true that the charges are

11 raised, but it's very rare that

12 anybody says that it's a violation of

13 the First Amendment and I laid that

14 case out and there should at least be

15 a response. If there is some legal

16 reason, if there is some actual legal

17 reasoning why it was done, I guess, I

18 am going to lose that motion, but I

19 quite frankly don't think -- well, I

20 think if there was an evidentiary

21 hearing we might get to the bottom of

22 it, quite frankly.

23 THE COURT: I will set it down for an evidentiary

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1 hearing. However, I believe she has

2 the right to respond in writing prior

3 to that hearing, so I will -- is that

4 acceptable? You can still submit

5 something in writing, that way we

6 will know whether he needs to run the

7 hearing, then he can run the hearing.

8 If it's sufficient, I may be able to

9 make a decision on the paperwork,

10 unless you definitely want a hearing

11

12 MR. OSTROWSKI: Well, I definitely want a hearing.

13 THE COURT: Okay. So am I making the hearing on

14 the aggravated harassment 240.30 and

15 you are withdrawing the 240.26?

16 MS. MAHONEY: That would be my understanding.

17 THE COURT: I would like you to write that up.

18 And so you have no objection to them

19 withdrawing the 240.26, the

20 harassment charge?

21 MR. OSTROWSKI: None, other than I've made my speedy

22 trial argument with respect to that

23 charge which I think also invalidates

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1 the misdemeanor.

2 THE COURT: But I denied that today, so you are

3 always welcome to

4 MR. OSTROWSKI: With that understanding, I will

5 continue to pursue the speedy trial

6 argument in an appropriate manner. I

7 am certainly, if they are dismissing

8 the violation, I am not going object

9 to it.

10 MS. MAHONEY: Judge, just so I am clear, defense

11 counsel is asking for an evidentiary

12 hearing to determine why we filed a

13 superseding -- to up the charge to a

14 misdemeanor?

15 THE COURT: I am not going to clarify.

16 MR. OSTROWSKI: That's the motion I made.

17 THE COURT: I don't have enough right now to make

18 a decision with respect to the

19 retaliatory charge which he did

20 allege in his motion, so he's

21 requesting a hearing on that. I am

22 more than willing to allow you to

23 respond and set it down for a hearing

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1 date. How about we put it down for

2 December 3rd? Adjourned for motion.

3 Are you available 12/3, both of you?

4 MR. OSTROWSKI: I am wondering, I may after I get the

5 transcript, make a motion to reargue.

6 Maybe we can have another week on top

7 of that. I know it's been dragging.

8 THE COURT: 12/17 or 12/11?

9 MR. OSTROWSKI: I think the 11th, it's my birthday,

10 but that works.

11 THE COURT: Then you don't want to do that.

12 MR. OSTROWSKI: I always work on my birthday. No,

13 that would be fine. 12/11, that

14 would give me enough time.

15 THE COURT: 12/11/19 at 5 P.M. So I would ask

16 Ms. Mahoney, that you get your

17 response in to Mr. Ostrowski by next

18 week so that he could file or to do

19 whatever paperwork he needs to.

20 MR. OSTROWSKI: I will probably do a reply.

21 THE COURT: With respect to the 240.26, decision

22 on motion, both the Defendant and

23 Plaintiff submitted, People filed

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1 240.30 superseding, in place of

2 240.26. We'll see you back on 12/11

3 at 5 P.M. I will decide on that date

4 whether or not an evidentiary hearing

5 is necessary and we will go from

6 there. And if you would like to put

7 in with respect to motion anything on

8 Memorandum of Law with respect to

9 evidentiary hearing, so that way we

10 don't have to come back again and go

11 through all of this. I can have my

12 research done before that.

13 MR. OSTROWSKI: I won't be prepared to go forward

14 with the hearing. I need your

15 decision

16 THE COURT: Weare not having a hearing on

17 December 11th at all. I am setting

18 it down just so that way we have a

19 response from the prosecution and

20 possibly any information on

21 evidentiary hearings with respect to

22 retaliation. Are we on the same page

23 here?

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1 MR. OSTROWSKI: Yes.

2 THE COURT: Thank you everyone.

4 (Whereupon, proceedings concluded.)

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