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Rain says judge’s order too broad and “inartfully written”

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CANTON — St. Lawrence County District Attorney Mary E. Rain said a judge’s order to stop grand jury proceedings in her investigation into county officials is unclear.

Ms. Rain said an order to show cause she received Tuesday from Judge Vito C. Caruso, the administrative judge for the Fourth Judicial District, is too broadly written and reads as though her office should cease all grand jury proceedings, which would bring the county justice system to a halt.

“If you read the order it says we can have absolutely no grand jury, so it is really inartfully written,” Ms. Rain said Thursday night.

Judge Caruso wrote that Ms. Rain “is hereby stayed from taking any action in furtherance of any grand jury proceeding under Investigation No. 201402112 and from any action in furtherance of an investigation of misconduct, nonfeasance and neglect in public office concerning the failure to timely file a Victims Service Grant Application pending the return of this Order to Show Cause and the determination of the motion.”

Ms. Rain has been given until July 24 to respond to the order explaining to Judge Caruso why she shouldn’t be replaced by a special prosecutor due to possible conflicts of interest.

As an elected district attorney, Ms. Rain said, her duties could not be turned over to a special DA and “can only be removed from conducting a constitutionally embodied grand jury investigation under rare circumstances, none of which apply here.”

Judge Caruso was not available to comment on the order, but according to attorney Michael A. Arcuri of Syracuse law firm Hancock Estabrook, who represents the county in the investigation, it is the court’s decision whether to appoint a special prosecutor, especially when there are appearances of impropriety or conflicts of interest.

“I think this would rise to the level of one such situation,” Mr. Arcuri said. “The DA is investigating a matter which her office has potential to be the prosecutor, the witness, the victim, or the target, so how could there not be a conflict of interest?”

Mr. Arcuri added that Judge Caruso was clear in ordering Ms. Rain to cease her investigations.

“That investigation number deals with not just the grant but also the forfeiture funds,” Mr. Arcuri said. “The judge is saying that she is stayed from doing any of those things pending his decision on a special prosecutor. I think it is pretty clear what the judge is talking about here. I don’t think it is subjective or open to interpretation.”

The investigation number cited in the order refers to Ms. Rain’s probe of $12,148.61 in forfeiture funds that she alleges was illegally and improperly used by County Manager Karen M. St. Hilaire for the purchase of a sound system in the county Board of Legislators chambers.

Ms. St. Hilaire was one of several county officials subpoenaed for a July 29 hearing asking for 10 years of records related to asset forfeiture, to include emails, bank statements and other transactions.

“The subpoenas include the entire investigation,” Mr. Arcuri said.

But Ms. Rain said the subpoena makes no mention of the her investigation into the $500,000, five-year grant from the Office of Victim Services that has paid for two victim advocate positions in her office. The county this spring failed to reapply for the grant.

“How can a judge stop an investigation that hasn’t even commenced?” Ms. Rain asked. “All I can say is the motion is based on the subpoenas and I don’t see anything in there that mentions the OVS grants.”

Ms. Rain added that the county did “a really poor job” preparing the order and failed to provide Judge Caruso with a motion which would “specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor,” according to CPLR 2214(a).

“They provided two affidavits, but the judge can’t make a decision without a motion in front of him,” Ms. Rain said.

However, according to subsection (d) of the law, “the court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein.”

In this case Ms. Rain has been given until July 24 to respond “on submission of papers only, no [court] appearances required.”

“We will provide our answers and let the judge make his decisions from there,” Ms. Rain said.

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