Supreme Court of the United States · 2019-07-22 · No. 18-485 IN THE Supreme Court of the United...

No. 18-485

IN THE

Supreme Court of the United States_________

EDWARD G. MCDONOUGH,Petitioner,

v.

YOUEL SMITH, INDIVIDUALLY AND AS SPECIALDISTRICT ATTORNEY FOR THE COUNTY OF RENSSELAER,

NEW YORK, AKA TREY SMITH,Respondent.

_________

On Writ of Certiorari to the United States Courtof Appeals for the Second Circuit

_________

JOINT APPENDIX_________

NEAL KUMAR KATYALHOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004(202) [email protected]

Counsel of Recordfor Petitioner

THOMAS JAMES O’CONNORNAPIERSKI, VANDENBURGH,

NAPIERSKI & O’CONNOR,LLP

296 Washington AvenueExtension, Suite 3

Albany, NY 12203(518) [email protected]

Counsel of Recordfor Respondent

PETITION FOR WRIT OF CERTIORARI FILED: OCTOBER 12, 2018CERTIORARI GRANTED: JANUARY 11, 2019

TABLE OF CONTENTS

Page

(i)

Relevant Docket Entries:

Court of Appeals Docket Entries(No. 17-296) ............................................................ 1

District Court Docket Entries(No. 1:15-cv-01505-MAD-DJS) .............................. 7

Relevant Pleadings:

Verified Complaint for Damages fromViolation of Rights Under Color of Law(Civil Rights Action) (Dec. 18, 2015) ................... 31

Exhibits to Verified Complaint:

Exhibit A: Letter from Trey Smith toWilliam C. Pericak (Apr. 27, 2011), andLetter from Trey Smith to Special Agentin Charge Clifford C. Holly (Apr. 28,2011) ................................................................ 257

Exhibit G: Affidavit of Jolene VanVranken...... 264

Exhibit J: FBI Memorandum (June 3,2011) (excerpt) ................................................. 268

Exhibit to Affidavit of Edward G.McDonough in Opposition to Motion toDismiss (Feb. 29, 2016):

Exhibit B: New York State PoliceVoluntary Statement of William A.McInerney (Sept. 16, 2011) ............................. 271

Exhibits to Affidavit of Youel C. Smith, III inSupport of Motion to Dismiss (filed July 14,2016):

Exhibit 2: Letter from Richard J. McNally,Jr. to Hon. Robert M. Jacon (Sept. 24,2009) ................................................................ 286

ii

TABLE OF CONTENTS—Continued

Page

Exhibit 3: Order appointing SpecialDistrict Attorney (Sept. 28, 2009)................... 288

Exhibit 27: New York State PoliceStatement of Kevin B. McGrath (Mar. 29,2010) ................................................................ 290

Exhibits to Affidavit of Youel C. Smith, III inReply to McDonough Memorandum of Lawand in Support of Motion to Dismiss (filedSept. 26, 2016):

Exhibit 29: Decision & Order, Indictment#SP11-1002; Index #235598 (N.Y. Sup.Ct. Mar. 1, 2012).............................................. 301

Exhibit 30: Deposition of JoleneVanVranken (Dec. 2, 2009) ............................. 311

Exhibit 32: Trial Testimony of JoleneVanVranken (Jan. 31, 2012) (excerpt) ........... 314

(1)

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

_______________

Docket No. 17-296

_______________

EDWARD G. MCDONOUGH,

Plaintiff-Appellant,

v.

YOUEL SMITH, INDIVIDUALLY AND AS SPECIAL

DISTRICT ATTORNEY FOR THE COUNTY OF RENSSELAER,NEW YORK, AKA TREY SMITH,

Defendant-Appellee.

_______________

DOCKET ENTRIES

DATEDOCKETNUMBER PROCEEDINGS

01/30/2017 1 NOTICE OF CIVILAPPEAL, with districtcourt docket, on behalf ofAppellant Edward G.McDonough, FILED.[1958541] [17-296][Entered: 01/31/201711:06 AM]

* * *

03/23/2017 29 BRIEF, on behalf ofAppellant Edward G.

2


McDonough, FILED.Service date 03/23/2017by CM/ECF, USmail.[1996401] [17-296][Entered: 03/23/201703:47 PM]

* * *

04/20/2017 37 MOTION FOR LEAVETO INTERVENE, onbehalf of Defendant JohnJ. Ogden, FILED. Servicedate04/20/2017 byCM/ECF.[2016196] [17-296] [Entered: 04/20/201705:24 PM]

* * *

04/24/2017 41 MOTION ORDER,granting Defendant JohnJ. Ogden’s motion tointervene [37]. Beginning30 days after the date ofthis order and continuingin 30-day intervalsthereafter, Plaintiff-Appellant shall informthis Court in writing ofthe status of the Rule54(b) motion. Allappellees’ briefs are due

3


35 days from the entry ofan order granting theRule 54(b) motion, byRJL, FILED.[2017633][41] [17-296][Entered: 04/24/201710:51 AM]

* * *

08/30/2017 69 BRIEF, on behalf ofAppellee Youel Smith,FILED. Service date08/30/2017 by CM/ECF.[2114051] [17-296][Entered: 08/30/201704:03 PM]

08/31/2017 70 BRIEF, on behalf ofAppellee John J. Ogden,FILED. Service date08/31/2017 by CM/ECF.[2114399] [17-296][Entered: 08/31/201709:24 AM]

* * *

09/14/2017 79 REPLY BRIEF, on behalfof Appellant Edward G.McDonough, FILED.Service date 09/14/2017by CM/ECF, US mail.

4


[2124530] [17-296][Entered: 09/14/201712:23 PM]

* * *

08/03/2018 94 OPINION, affirming thedistrict court judgment,by DJ, RR, CFD,FILED.[2358554] [17-296][Entered: 08/03/201809:10 AM]

* * *

08/03/2018 100 JUDGMENT,FILED.[2358697] [17-296][Entered: 08/03/201810:43 AM]

* * *

08/17/2018 103 PETITION FORREHEARING/REHEARING EN BANC, on behalfof Appellant Edward G.McDonough, FILED.Service date 08/17/2018by CM/ECF.[2370813][17-296] [Entered:08/17/2018 03:40 PM]

* * *

5


08/30/2018 133 AMICUS BRIEF, onbehalf of Amicus CuriaeAmerican Civil LibertiesUnion, Bronx Defenders,Brooklyn DefenderServices, Center forAppellate Litigation,Connecticut InnocenceProject, NationalAssociation of CriminalDefense Lawyers,Neighborhood DefenderService of Harlem, NewYork County DefenderServices, New York StateAssociation of CriminalDefense Lawyers, Officeof the Appellate Defender,The Innocence Project,The Legal Aid Society andVermont Office of theDefender General,FILED. Service date08/30/2018 byCM/ECF.[2379447] [17-296] [Entered: 08/30/201803:24 PM]

* * *

09/12/2018 136 ORDER, petition forrehearing en banc denied,

6


FILED.[2387882] [17-296][Entered: 09/12/201802:58 PM]

09/19/2018 137 JUDGMENT MANDATE,ISSUED.[2392851] [17-296] [Entered: 09/19/201803:39 PM]

* * *

7

UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK

_______________

Docket No. 1:15-cv-01515-MAD-DJS

_______________


Plaintiff,

v.

YOUEL C. SMITH, III, INDIVIDUALLY AND AS SPECIAL

DISTRICT ATTORNEY FOR THE COUNTY OF RENSSELAER,NEW YORK, AKA TREY SMITH,

Defendant.

_______________

DOCKET ENTRIES


12/18/2015 1 COMPLAINT against AllDefendants (Filing fee$400 receipt number0206-3519743) filed byEdward G. McDonough.(Attachments: # 1Exhibits A-K; # 2 CivilCover Sheet)(lah)(Entered: 12/22/2015)

* * *

02/05/2016 12 First MOTION to Dismissfor Failure to State aClaim Motion Hearing set

8


for 3/15/2016 10:00 AM inAlbany before U.S.District Judge Mae A.D’Agostino Response toMotion due by 2/29/2016Reply to Response toMotion due by 3/4/2016.filed by William A.McInerney. (Attachments:# 1 Affidavit, # 2Memorandum of Law, # 3Affirmation of ECFservice) (Long, James)(Entered: 02/05/2016)

* * *

02/29/2016 36 RESPONSE in Oppositionre 12 First MOTION toDismiss for Failure toState a Claim filed byEdward G. McDonough.(Attachments: # 1Exhibit(s))(Premo, Brian)(Entered: 02/29/2016)

* * *

03/03/2016 40 MOTION to Dismiss ,MOTION to Dismiss forFailure to State a ClaimMotion Hearing set for4/5/2016 10:00 AM in

9


Albany before U.S.District Judge Mae A.D’Agostino Response toMotion due by 3/21/2016Reply to Response toMotion due by 3/25/2016.filed by Daniel B. Brown,John F. Brown.(Attachments: # 1Affidavit of John F.Brown, # 2 Affidavit ofDaniel B. Brown, # 3Memorandum of Law, # 4Certificate of Service)(Steck, Phillip)(Additional attachment(s)added on 3/14/2016: # 5Exhibit(s) A-C of JohnBrown Affidavit, # 6Exhibit(s) A - F of DanBrown Affidavit, # 7Application for SearchWarrant, # 8 Affidavit inSupport of Application forSearch Warrant) (ban, ).(Additional attachment(s)added on 3/14/2016: # 9Volume 1, # 10 Volume 1part 2, # 11 Volume 1 part3, # 12 Volume 2 part 1, #13 Volume 2 part 2, # 14

10


Volume 2 part 3, # 15Volume 3 part 1, # 16Volume 3 part 2, # 17Volume 3 part 3) (ban, ).(Entered: 03/03/2016)

* * *

03/21/2016 60 RESPONSE to Motion re45 Letter Motion fromPhillip G. Steck, Esq. forDaniel B. Brown, John F.Brown requestingPermission to fileExhibits submitted toJudge Mae A. D’Agostinofiled by Edward G.McDonough.(Attachments: # 1Exhibit(s), # 2SupplementAddendum)(Premo,Brian) (Entered:03/21/2016)

* * *

04/01/2016 67 REPLY to Response toMotion re 40 MOTION toDismiss MOTION toDismiss for Failure toState a Claim filed byDaniel B. Brown, John F.

11


Brown. (Attachments: # 1Certificate ofService)(Steck, Phillip)(Entered: 04/01/2016)

* * *

04/11/2016 73 MOTION to Dismiss forFailure to State a ClaimMotion Hearing set for5/17/2016 10:00 AM inAlbany before U.S.District Judge Mae A.D’Agostino Response toMotion due by 5/2/2016Reply to Response toMotion due by 5/6/2016.filed by John J. Ogden.(Attachments: # 1Affirmation in Support, #2 Memorandum of Law, #3 Declaration of Service, #4 Declaration of Service)(Scott, William) (Entered:04/11/2016)

* * *

05/02/2016 86 RESPONSE in Oppositionre 73 MOTION to Dismissfor Failure to State aClaim Ogden filed byEdward G. McDonough.

12


(Attachments: # 1Exhibit(s)) (Premo, Brian)(Entered: 05/02/2016)

* * *

05/05/2016 88 REPLY to Response toMotion re 73 MOTION toDismiss for Failure toState a Claim filed byJohn J. Ogden.(Attachments: # 1Declaration of Service)(Scott, William) (Entered:05/05/2016)

* * *

07/13/2016 96 MOTION to Dismiss forFailure to State a ClaimMotion Hearing set for8/16/2016 09:30 AM inAlbany before U.S.District Judge Mae A.D’Agostino

Response to Motion dueby 8/1/2016 Reply toResponse to Motion dueby 8/5/2016. filed by YouelC. Smith, III.(Attachments: # 1Affidavit Affidavit ofYouel C. Smith, III in

13


Support of Motion toDismiss, # 2Memorandum of Law, # 3Certificate of Service)(O'Connor, Thomas)(Entered: 07/13/2016)

* * *

07/14/2016 99 AFFIDAVIT re 96MOTION to Dismiss forFailure to State a Claimby Youel C. Smith, III.(Attachments: # 1Exhibit(s) 1 - Order toShow Cause andTemporary RestrainingOrder, Petition andExhibits “A” through “D”and supporting affidavitof Mirch, # 2 Exhibit(s) 2 -DA McNally's letterapplication, # 3 Exhibit(s)3 - Order, # 4 Exhibit(s) 4- Annual Order 2009Third Judicial District, #5 Exhibit(s) 5 - 9.29.09Consent and TealEvidence Receipt, # 6Exhibit(s) 6 - 10.6.09 TealEvidence Receipt, # 7Exhibit(s) 7 - 10.1.09

14


Lambertsen Transcript, #8 Exhibit(s) 8 - 10.2.09Lynch Decision andOrder, # 9 Exhibit(s) 9 -10.15.09 EvidenceReceipt, # 10 Exhibit(s) 10- 10.17.09 Karen GushlawAffidavit, # 11 Exhibit(s)11 - 10.17.09 RichardGushlaw Affidavir, # 12Exhibit(s) 12 - 9.23.09Sanchez Affidavit, # 13Exhibit(s) 13 - 10.22.09Couch SupportingDeposition, # 14Exhibit(s) 14 - 10.15.09Couch Envelopes, # 15Exhibit(s) 15 - 10.30.09Karen GushlowSupporting Deposition, #16 Exhibit(s) 16 - 10.30.09Richard GushlawSupporting Deposition, #17 Exhibit(s) 17 - 11.6.09Sanchez SupportingDeposition, # 18Exhibit(s) 18 - 11.6.09Madera SupportingDeposition, # 19Exhibit(s) 19 - 9.23.09Madera Affidavit, # 20

15


Exhibit(s) 20 - MirachDeposition, # 21Exhibit(s) 21 - BugbeeDeposition, # 22Exhibit(s) 22 - CairdDeposition, # 23Exhibit(s) 23 - DeFigliowritten statement, # 24Exhibit(s) 24 - AldrichDeposition, # 25Exhibit(s) 25 - 11.9.09McDonough Statement, #26 Exhibit(s) 26 - 12.7.09McDonough Statement, #27 Exhibit(s) 27 -McGrath Statement, # 28Exhibit(s) 28 - OgdenNYSP InvestigativeReport, # 29 Exhibit (s) 29- 12.7.10 Sanchez GJ, # 30Exhibit(s) 30 - 12.7.10Madera GJ, # 31Exhibit(s) 31 - 12.8.10Couch GJ, # 32 Exhibit(s)32 - 12.13.10 KarenGushlaw ForgeryAffidavit, # 33 Exhibit(s)33 - 12.13.10 RichardGushlaw ForgeryAffidavit, # 34 Exhibit(s)34 - 12.8.10 McGrath GJ,

16


# 35 Exhibit(s) 35 -12.8.10 DeFiglio GJ, # 36Exhibit(s) 36 - GrandJury Testimony ofChristine Robinson, # 37Exhibit(s) 37 - Ogden GJTestimony, # 38 Exhibit(s)38 - Welch GJ Testimony,# 39 Exhibit(s) 39 -12.9.10 O'Malley GJTestimony, # 40 Exhibit(s)40 - 12.15.10 O'Malley GJTestimony, # 41 Exhibit(s)41 - Smith letter to Feit, #42 Exhibit(s) 42 - Smithletter to Premo, # 43Exhibit(s) 43 - CPL190.50(5) Notice toPremo, # 44 Exhibit(s) 44- Premo advisingMcDonough, # 45Exhibit(s) 45 - 1.21.11Letter to Premo, # 46Exhibit(s) 46 - Transcriptof GJ Discussion, # 47Exhibit(s) 47 - 1.28.11Indictment, # 48Exhibit(s) 48 - 4.29.11Pulver D&O, # 49Exhibit(s) 49 - 7.11.11Pulver D&O, # 50

17


Exhibit(s) 50 - 8.24.11Pulver D&O, # 51Exhibit(s) 51 - UseImmunity Agreement, #52 Exhibit(s) 52 -Transcript 7.18.11Conference Call, # 53Exhibit(s) 53 - 7.18.11Smith Letter to McNally,# 54 Exhibit(s) 54 -7.19.11 McNally letter toJacon, # 55 Exhibit(s) 55 -8.8.11 Order ofAppointment, # 56Exhibit(s) 56 - McInerneyCooperation Agreement, #57 Exhibit(s) 57 -McInerney Guilty PleaTranscript, # 58Exhibit(s) 58 - 9.16.11McInerney Statement, #59 Exhibit(s) 59 - 6.6.11letter to Feit, # 60Exhibit(s) 60 - 9.14.11letter to Feit, # 61Exhibit(s) 61 - 11.14.11letter to Feit, # 62Exhibit(s) 62 - 1.6.12Pulver D&O, # 63Exhibit(s) 63 - DeFiglioTranscript of Guilty Plea,

18


# 64 Exhibit(s) 64 - BrownTranscript of Guilty Plea,# 65 Exhibit(s) 65 - RennaTranscript of Guilty Plea,# 66 Exhibit(s) 66 - 6.6.11letter to Premo, # 67Exhibit(s) 67 - 6.7.11Premo letter, # 68Exhibit(s) 68 - 6.7.11letter to Premo, # 69Exhibit(s) 69 - 10.2.12letter to Premo, # 70Exhibit(s) 70 - 1.30.12Richard Gushlaw Trial, #71 Exhibit(s) 71 - 2.2.12Madera Trial, # 72Exhibit (s) 72 - 2.2.12Sanchez Trial, # 73Exhibit(s) 73 - 2.2.12Trial, # 74 Exhibit(s) 74 -2.16.12 Martiniano Trial,# 75 Exhibit(s) 75 -1.31.12 Howard Trial, #76 Exhibit(s) 76 - 1.26.12Robinson Trial, # 77Exhibit(s) 77 - 2.15.12Couch Trial, # 78Exhibit(s) 78 - 2.23.12McInerney Trial, # 79Exhibit(s) 79 - 12.1.11Robillard Report, # 80

19


Exhibit(s) 80 - 3.30.12Pulver D&O, # 81Exhibit(s) 81 - CriminalStatutes)(O'Connor,Thomas) (Entered:07/14/2016)

* * *

09/19/2016 108 RESPONSE in Oppositionre 96 MOTION to Dismissfor Failure to State aClaim , 97 MOTION toDismiss for Failure toState a Claim toMemorandum of Law andSupporting AttorneyDeclaration Dkt. 95 , filedby Edward G.McDonough.(Attachments: # 1Exhibit(s), # 2 Exhibit(s),# 3 Exhibit(s)) (Premo,Brian) (Entered:09/19/2016)

* * *

09/26/2016 110 REPLY to Response toMotion re 96 MOTION toDismiss for Failure toState a Claim filed byYouel C. Smith, III.

20


(O’Connor, Thomas)(Entered: 09/26/2016)

09/26/2016 111 REPLY to Response toMotion re 96 MOTION toDismiss for Failure toState a Claim ReplyAffidavit of Youel C.Smith filed by Youel C.Smith, III. (O'Connor,Thomas) (Entered:09/26/2016)

* * *

09/26/2016 113 AFFIDAVIT re 111 Replyto Response to Motion byYouel C. Smith, III.(Attachments: # 1Exhibit(s) 1- OgdenWarrant Affidavit, # 2Exhibit(s) 2- Lagacesupporting deposition, # 3Exhibit(s) 3- Gonzalezsupporting deposition, # 4Exhibit(s) 4- Welchaffidavit, # 5 Exhibit(s) 5-Yando supportingdeposition, # 6 Exhibit(s)6 - Known & QuestionedYando Signatures, # 7Exhibit(s) 7- GJ

21


Instructions Excerpt, # 8Exhibit(s) 8- BrownTranscript, # 9 Exhibit(s)9- NYSP Note Re Daniel,# 10 Exhibit(s) 10- TimesUnion Article re Daniel, #11 Exhibit(s) 11- BrownGJ Transcript, # 12Exhibit (s) 12- DiFabioSupporting deposition, #13 Exhibit(s) 13- TangrediSupporting deposition, #14 Exhibit(s) 14- DiFabioBallot Envelope, # 15Exhibit(s) 15- TangrediBallot Envelope, # 16Exhibit(s) 16- BrownStatement, # 17 Exhibit(s)17- Dickinson supportingdeposition, # 18 Exhibit(s)18- Taylor supportingdeposition, # 19 Exhibit(s)19- Gilbert supportingdeposition, # 20 Exhibit(s)20- Carpenter supportingdeposition, # 21 Exhibit(s)21- Newell supportingdeposition, # 22 Exhibit(s)22- Wiley Supportingdeposition, # 23 Exhibit(s)23- 3.12.10 McGrath

22


Cooperation Agreement, #24 Exhibit(s) 24- DeFiglioNotes, # 25 Exhibit(s) 25-McInerney Notes, # 26Exhibit(s) 26- EMail toOgden & Fancher, # 27Exhibit(s) 27- Attachmentto Email to Ogden &Fancher, # 28 Exhibit(s)28- 1.12.12 D/O of JudgePulver, # 29 Exhibit(s) 29-3.1.12 D/O of JudgePulver, # 30 Exhibit(s) 30-12.2.09 Deposition ofJolene M. VanVranken, #31 Exhibit(s) 31- PerjuryAffidavit of JoleneVanVranker, # 32Exhibit(s) 32- 1.31.12Direct Trial Testimony ofJolene VanVranken, # 33Exhibit(s) 33- 3.2.12Decision of Judge Pulver,# 34 Exhibit (s) 34-12.6.11 Statement of JohnF. Brown)(O’Connor,Thomas) (Entered:09/26/2016)

09/30/2016 114 MEMORANDUM-DECISION AND ORDER:

23


The Court ORDERS thatDefendant McInerney’smotion to dismiss (Dkt.No. 12 ) is GRANTED inpart and DENIED in partas stated herein; and theCourt further ORDERSthat Defendants John andDaniel Brown’s motion todismiss (Dkt. No. 40 ) isGRANTED in its entirety;and the Court furtherORDERS that DefendantO'Malley’s motion todismiss (Dkt. No. 50 ) isGRANTED in its entirety;and the Court furtherORDERS that DefendantRobillard’s motion todismiss (Dkt. No. 56 ) isGRANTED in its entirety;and the Court furtherORDERS that DefendantMcNally’s motion todismiss (Dkt. No. 64 ) isGRANTED in its entirety;and the Court furtherORDERS that Plaintiff’sfabrication of evidenceclaims are DISMISSEDas against all Defendants

24


on statute of limitationsgrounds; and the Courtfurther ORDERS thatDefendants John andDaniel Brown, O’Malley,Robillard, and McNallyare terminated from thisaction; and the Courtfurther ORDERS that theClerk of the Court shallserve a copy of thisMemorandum- Decisionand Order on all partiesin accordance with theLocal Rules. Signed byU.S. District Judge MaeA. D’Agostino on9/30/2016. (ban)(Additional attachment(s)added on 10/7/2016: # 1Returned Receipt) (jzm, ).(Entered: 09/30/2016)

* * *

12/30/2016 121 MEMORANDUM-DECISION AND ORDER:The Court herebyORDERS that DefendantSmith’s motion to dismiss(Dkt. No. 96 ) isGRANTED in its entirety;

25


and the Court furtherORDERS that DefendantOgden’s motion to dismiss(Dkt. No. 73 ) isGRANTED in part andDENIED in part as statedherein; and the Courtfurther ORDERS thatDefendant County ofRensselaer’s motion todismiss (Dkt. No. 97 ) isGRANTED in its entirety;and the Court furtherORDERS that DefendantsSmith and the County ofRensselaer areterminated from thisaction; and the Courtfurther ORDERS thatDefendants John andDaniel Brown’s motion forsanctions (Dkt. No. 89 ) isDENIED; and the Courtfurther ORDERS thatPlaintiff’s cross-motion forsanctions (Dkt. No. 90 ) isDENIED; and the Courtfurther ORDERS that theClerk of the Court shallserve a copy of thisMemorandum-Decision

26


and Order on all partiesin accordance with theLocal Rules. Signed byU.S. District Judge MaeA. D’Agostino on12/30/2016. (ban)(Entered: 12/30/2016)

* * *

01/27/2017 124 NOTICE OF APPEAL byEdward G. McDonough.Filing fee $ 505, receiptnumber 0206-3913261.(Premo, Brian) (Entered:01/27/2017)

* * *

02/17/2017 131 First MOTION for Entryof Judgment under Rule54(b) Motion Hearing setfor 3/21/2017 10:00 AM inAlbany before U.S.District Judge Mae A.D’Agostino Response toMotion due by 3/6/2017Reply to Response toMotion due by 3/10/2017.filed by Edward G.McDonough.(Attachments: # 1Memorandum of Law, # 2

27


Affirmation) (Premo,Brian) (Entered:02/17/2017)

* * *

03/02/2017 135 TEXT ORDER: OnFebruary 27, 2017,Defendant John Ogdenfiled a Letter Request,with the consent of allparties except for pro seDefendant AnthonyRenna, seeking a stay ofdiscovery in this matterpending the resolution of

Plaintiff’s appeal. Dkt.No. 134 . Based upon thereasons set forth inDefendant Ogden'ssubmission, the request isGRANTED and discoveryis STAYED. The Rule 16Initial Conferencecurrently scheduled forMarch 9, 2017 and thedeadline to file a proposedCivil Case ManagementPlan and exchangeMandatory Disclosuresare ADJOURNEDwithout date at this time.

28


Plaintiff’s counsel isdirected to file a StatusReport May 1, 2017. SOORDERED by MagistrateJudge Daniel J. Stewarton 3/2/2017. (mab)(Entered: 03/02/2017)

* * *

05/08/2017 142 MEMORANDUM-DECISION AND ORDERgranting 131 Motion forEntry of Judgment underRule 54(b); granting 133Letter Request: The Courthereby ORDERS thatPlaintiff's motion forentry of a final judgment(Dkt. No. 131), joinedbyDefendant Smith (Dkt.No. 133), is GRANTED;and the Court furtherORDERS that the Clerkof the Court shall enterfinal judgment as to thedismissal of Plaintiff’sclaims against DefendantSmith; and the CourtfurtherORDERS that theClerk of the Court shallserve a copy of this

29


Memorandum-Decisionand Order on all partiesin accordance with theLocal Rules. Signed byU.S. District Judge MaeA. D’Agostino on5/8/2017.(copy mailed toall non-ecf parties) (ban)(Entered: 05/08/2017)

05/08/2017 143 FINAL JUDGMENT as todefendant Youel C. Smith,III, ONLY. (1) AppealNotice Attached) (ban).(Copy served via regularmail on all non-ecfparties) (Entered:05/09/2017)

* * *

01/22/2019 161 TEXT ORDER: OnJanuary 18, 2019,Plaintiff filed a LetterRequest, with the consentof all parties, seeking astay of discovery andfurther proceedings inthis matter pending adecision by the SupremeCourt. Dkt. No. 160 . Therequest is GRANTED and

30


the Rule 16 InitialConference scheduled forJanuary 31, 2019 and thedeadline for the parties tofile a proposed Civil CaseManagement Plan andexchange MandatoryDisclosures areADJOURNED withoutdate at this time.Discovery and any furtherproceedings in this matterare STAYED pendingreview and a decision bythe Supreme Court. SOORDERED by MagistrateJudge Daniel J. Stewarton 1/22/2019. (Copymailed to pro sedefendant). (mab)(Entered: 01/22/2019)

* * *

31

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK

_________


Plaintiff,

v.

Youel C. SMITH III, aka Trey Smith, individuallyand as Special District Attorney for The County of

Rensselaer, New York; Richard J. McNally, Jr.,individually and as District Attorney for The Countyof Rensselaer, New York; Kevin B. McGrath; John F.Brown; William A. McInerney; John J. Ogden; Kevin

F. O’Malley; Daniel B. Brown; Anthony J. Renna;Alan T. Robillard; and, The County of Rensselaer,

New York,

Defendants._________

No. 1:15-CV-1505 (MAD/DJS).

December 18, 2015._________

Verified Complaint for Damages from Violationof Rights Under Color of Law

(Civil Rights Action)

_________

JURY DEMANDED

_________

32

NATURE OF ACTION

Plaintiff Edward G. McDonough seeks to recovercompensatory and punitive damages, reasonableattorney fees and costs against the nameddefendants for their actions to deprive him of hisfundamental rights to due process, a fair trial,present a defense and equal protection and his publicemployment as secured to him by the Fourth, Fifth,Sixth and/ or Fourteenth Amendments of theConstitution of the United States and the laws of theUnited States and New York State, all through theconspiratorial fabrication and use of false testimonyin effort to wrongfully indict and maliciouslyprosecute and convict him for alleged acts he did notcommit that do not constitute the crimes charged asa matter of law; all of which was done primarily toprotect the named Democratic candidates andoperatives and/or others from prosecution,conviction, punishment or adverse political effects forthe voter fraud and absentee ballot document forgerythey committed to win a September 14, 2009 minorparty primary election and/or past elections; cover-uptheir election crimes and guilt; enable Democraticcandidates and/or operatives to defraud voters andforge absentee ballot votes to affect future electionsas they had done for decades in the past; and/orother arbitrary and capricious reasons.

The action is predicated on Title 42, U.S. C. §§ 1983and 1988, the Constitution, laws and statutes of theUnited States.

Plaintiff seeks compensatory damages for thepersonal injuries, including emotional distress,mental anguish, substantial attorney fees and costs

33

he suffered as a direct, foreseeable and naturalconsequence of the defendants’ acts and conspiracy toimpede, frustrate and hinder the due course ofjustice with intent to deprive him of those rights, andtheir neglect or refusal to prevent said deprivations.He also seeks punitive damages against theindividual defendants for their intentional, maliciousand unconscionable concerted actions in fabricatingfalse testimony with the intention of using it todeprive him of his property, property interest in hispublic employment and money, due process libertyinterest, right a fair trial and right to present adefense through a wrongful indictment, prosecution,conviction and punishment and the payment of thereasonable attorney fees he incurs in pursuing thisaction.

PRELIMINARY STATEMENT

District Attorney and Special Prosecutor ActedBeyond Scope of Law and DefendantsConspiratorially Fabricated False Testimony toIndict and Convict Plaintiff

1. This action arises from an unlawfullyappointed Democrat Special District Attorney’sconspiratorial fabrication of false testimony toscapegoat prosecute a Democrat election official forallegedly writing false data on authenticatedapplications for absentee ballots (“AAB”), which hedid not do and does not constitute the forgery crimescharged as a matter of law, in lieu of prosecutingDemocrat candidates and operatives (“Dem C/O”)who fraudulently obtained and falsely completed orforged and filed AAB to obtain, forge and file

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absentee ballots in forged absentee ballot envelopesto win election (“AB forgery”).

2. Specifically, defendants Democrat DistrictAttorney Richard J. McNally, Jr. (“McNally”),Special District Attorney Youel C. Smith (“TreySmith”), named Dem C/O, police investigator andprivate-hire Forensic Document Examiner (“FDE”)conspiratorially acted to wrongfully prosecute andconvict plaintiff Rensselaer County Board ofElections (“BOE”) Commissioner McDonough onseventy-four (74) felony charges and thereby causehim to incur enormous defense attorney fees and losehis public employment for allegedly writing falsereasons for absentee ballot voting (“Excuses”) andnames of voter agents to whom absentee ballots wereto be released (“AB Agent”) on AAB that Dem C/Ofraudulently obtained, falsified or totally forged andfiled with the BOE to get and falsely vote AB to winthe 2009 Working Families Party (“WFP”) primaryfor Troy City Council.

3. The defendants entered an extra-judicialconspiracy prior and/or during a criminalinvestigation but prior to criminal proceedings tofabricate false testimony to initiate and continue theprosecution of McDonough mainly to protect knownand identifiable Dem C/O who committed the ABforgery from prosecution, especially the chiefculprits:

(a) Kevin McGrath (“McGrath”), brother of arespected Democrat State Supreme Court Justice,convicted drug felon and candidate who brazenlyinitiated the AB forgery and whose conviction was afait accompli, but was given immunity to provide abasis for the scapegoat prosecution by denying his

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own guilt, not incriminating the other Dem C/O whocommitted the AB forgery and falsely alleging thathe saw McDonough write false Excuses on two (2) ofmany AAB he had voters sign before he or othersfalsely completed and filed them to obtain and forgetheir absentee ballot (“AB”). On another occasion, heclaimed he heard McDonough talk with candidateJohn Brown about names he assumed McDonoughwas going to write on AAB as false AB Agents, whichhe did not report or allege, even when he publiclyproclaimed he was innocent and essentially calledthe voters who directly incriminated him liars; all ofwhich was uncorroborated, patently incredible andcontrary to overwhelming irrefutable evidence thatproved his guilt and the falsity of his “cooperation.”

(b) John Brown (“Brown”), an ambitious, highlypolitically connected candidate who pushedMcInerney into assisting him commit the AB forgeryand whose conviction for those crimes and hisperjury was a fait accompli, but was told by TreySmith in 2009, 2010 and 2011 that he would not beprosecuted despite substantial known and readilyobtainable evidence sufficient to convict him. He wasnever meaningfully prosecuted or required to providetruthful cooperation that would have incriminatedother Dem C/O and exonerated McDonough evenafter his arrest was imminent in 2011 only becauseNew York State Police (“NYSP”) Senior InvestigatorChristopher O’Brien, Ret. (“Sr. Inv. O’Brien”)directed an independent investigation in response toMcDonough’s actions in defending his innocence andexposing the scapegoat prosecution and therebyobtained readily available evidence sufficient to

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convict him without Trey Smith’s prior knowledge(“NYSP independent investigation”).

(c) William McInerney (“McInerney”), the prolificAB forger, friend of McNally, supporter of Brown andoperative who also committed AB forgery in supportof McNally’s 2007 election won by AB, threatened totake everyone down if prosecuted, obtainedMcNally’s legal advice, retained the attorney whorepresented McNally in his 2007 election anddestroyed his cell phone on his attorney’s advice andwhose conviction for hundreds of AB forgery crimeshe committed in 2009 as well as 2008 and 2007 was afait accompli, but was told by Trey Smith in 2009,2010 and 2011 that he would not be prosecuteddespite substantial known and readily obtainableevidence sufficient to convict him. He was also nevermeaningfully prosecuted or required to providetruthful cooperation that would have incriminatedother Dem C/O and exonerated McDonough evenafter his arrest in 2011 only because of the NYSPindependent investigation.

4. The other objectives of the conspiracy were to:(a) protect McNally and Democrat candidates fromthe adverse political effects of a proper investigationand prosecution; (b) cover-up a decades-long schemeof Dem C/O to defraud public housing residents andforge their AB votes; and (c) enable Dem C/O tocommit similar AB forgery in the future.

5. The facts contained in the documents, recordsand testimony related to the private and criminalinvestigations of the AB forgery and prosecution ofMcDonough (hereinafter “record facts”) establishthat the most plausible reason for the defendants’

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acts throughout is the conspiratorial scapegoatprosecution and its objectives.

6. The only reasonable inference to be drawnfrom the record facts is the scapegoat prosecution ofMcDonough. In fact, the defendants’ conduct is soegregious and otherwise inexplicable that it beliesany claim of reasonableness, ignorance orincompetence and makes no sense except whenviewed in the context of the conspiracy and itsobjectives.

7. Democrat McNally unlawfully disqualifiedhimself and had his friend Trey Smith appointedspecial prosecutor to a broad-scoped investigation ofabout ten Dem C/O and WFP operatives implicatedby substantial evidence in massive AB forgery,including his friend McInerney who forged AB insupport of his 2007 election won by AB. Trey Smiththen immediately targeted McDonough andconspiratorially fabricated false testimony of DemC/O and others to prosecute and convict him withoutprobable cause for allegedly writing false voterExcuses and AB Agent names on the many AAB thatsubstantial evidence proved known and identifiableDem C/O totally forged or falsely completed and filedto obtain and forge AB, instead of prosecuting thoseguilty Dem C/O for the AB forgery.

8. To do so, Trey Smith, among other things: (a)ignored, did not obtain and buried evidence thatwould have been sufficient to convict the Dem C/Oand exonerated McDonough; (b) gave McGrathimmunity, without any legitimate reason, to deny hisguilt, falsely incriminate McDonough to set the stagefor his scapegoat prosecution and not tell the truth

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that would have incriminated other Dem C/O; (c) liedto supervisory NYSP to protect Brown, McInerneyand others from prosecution; (d) gave non-prosecution agreements to Dem C/O and otherswithout reason or benefit; (e) fabricated falsetestimony to present before the Grand Jury and trialjuries; and, (f) took extraordinary action before andafter trial to ensure that McInerney, Brown andothers did not tell the truth that would haveexonerated McDonough.

9. Even after the Federal Bureau ofInvestigation (“FBI”) and supervisory NYSP in 2011conducted independent investigations that resultedin the discovery of more evidence sufficient to convictMcInerney, Brown and Anthony Renna (“Renna”)without Trey Smith’s prior knowledge, Trey Smiththen took action to continue the prosecution, cover-up the conspiracy and protect the Dem C/O from anymeaningful prosecution by, among other things: (a)effectively quashing a federal investigation; (b)giving extraordinarily favorable plea bargains and/orjurisdictionally defective convictions to McInerney,Brown and all others; and, (c) aiding Brown inmisleading the appellate court with blatant materialmisrepresentations of fact and law in the frivolousappeal he filed to reduce his agreed upon sentenceafter waiving the right to appeal, until also exposedby McDonough.

10. Most, if not all, of defendants’ conspiratorialacts are a matter of record fact, including thefollowing salient ones:

(a) McNally acted outside the scope of legalauthority by disqualifying his office and having Trey

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Smith appointed to a broad-scoped investigation andprosecution without written motion or legal basis asrequired by state law, which he much later claimedwas done because McInerney and perhaps WFPoperatives worked on his past campaign eventhough, at the time, the only identified suspects wereMcGrath and Anthony DeFiglio (“DeFiglio”) and inany event there was never any legitimate conflict orother reason for his disqualification from theinvestigation or prosecution of any Dem C/Oimplicated in the crimes.

(b) Trey Smith prosecuted McDonough for thealleged non-criminal act of writing voter data onauthenticated or ostensibly authenticated AABwhich Dem C/O fraudulently had voters sign ortotally forged without his knowledge and afterMcDonough stated his intent to expose the scapegoatprosecution joined in the indictment Michael LoPorto(“LoPorto”), whom Rensselaer County DemocraticCommittee Chair, Thomas Wade (“Chair Wade”) didnot favor and considered to be a marginal,expendable candidate.

(c) Trey Smith did not prosecute any Dem C/O thatsubstantial known and easily obtainable evidence didand would have proven committed the AB forgeryand did not meaningfully prosecute McInerney,Brown or Renna even after they were arrested orabout to be arrested in 2011 only because of theNYSP independent investigation.

(d) McNally, soon after the crimes were discovered,advised McInerney to hire the attorney whorepresented him in his 2007 election by AB, many ofwhich McInerney forged.

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(e) McNally advised Dem C/O Robert Martiniano(“Martiniano”) in 2010 that he should not disclose hisknowledge of the AB forgery to the authorities“because it will all be over soon.” Notably, McInerneyand Brown made admissions to Martiniano, but TreySmith had already told them that they would not beprosecuted and told the supervisory NYSP the liethat there was not enough evidence to convict them.

(f) Chair Wade told McDonough that he should nottestify before the Grand Jury at the same time (soonafter his attorney gave Trey Smith notice of hisintent to do so) McNally and McInerney gaveMcDonough the names of an attorney to hire. TreySmith threatened to prosecute BOE CommissionerLawrence Bugbee and treated BOE employees heknew had close relationships with McDonough withhostility. The facts show that was done in concertedeffort to keep McDonough from testifying before theGrand Jury because the only purported evidence tobe presented against him other than his DNAallegedly being on three (3) AB documents filed atthe BOE was the uncorroborated and patentlyincredible false testimony of McGrath andInvestigator John Ogden (“Ogden”) which clearlywould not have been sufficient for indictment,especially when he disclosed the truth about whatoccurred in his office on September 14, 2009 incontradiction to the perjury of McGrath and Brown.In fact, McDonough’s notice of intent to testify alsocaused Trey Smith to fabricate the false Grand Jurytestimony of BOE employee Kevin O’Malley(“O’Malley) at that time.

(g) McNally made extra-judicial public statementsabout McDonough, his defense and his attorney that

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had a substantial likelihood of materially prejudicinghis trial.

(h) Trey Smith acted outside the scope of legalauthority by indicting and prosecuting McDonoughfor alleged acts that did not constitute the crimescharged as a matter of state law.

(i) Trey Smith fabricated false testimony againstMcDonough in an investigatory capacity and rolethroughout the investigation, indictment and trialsof the case.

(j) Trey Smith fabricated false testimony to presentat Grand Jury and two trials to initiate and continuethe prosecution of McDonough and convict him foracts he did not commit.

(k) Trey Smith notarized alleged forged signaturesof two voters on forgery affidavits he prepared andput in evidence at the Grand Jury to get a grosslyover-charged indictment.

(l) Trey Smith made extra-judicial publicstatements about McDonough, his defense and hisattorney that had a substantial likelihood ofmaterially prejudicing his trial.

(m) Trey Smith acted beyond the scope of legalauthority by indicting and prosecuting McDonoughdespite having notice and knowledge that McNally’sself-disqualification and his appointment wereinvalid as a matter of state law.

(n) Trey Smith misled supervisory NYSP with theblatant lie that McInerney and Brown could not beprosecuted because the evidence was insufficient tocorroborate accomplice testimony when, in fact, theknown and readily available testimonial and

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documentary evidence was more than sufficient to doso and convict them.

(o) Trey Smith took extraordinary action first toprotect McGrath, Brown, McInerney and other DemC/O from being prosecuted and later to protectMcInerney, Brown and Renna from beingmeaningfully prosecuted even after they werearrested or about to be only because of theindependent NYSP investigation done in 2011.

(p) Trey Smith effectively quashed a federalinvestigation being conducted into the scapegoatprosecution and AB forgery based on McDonough’scomplaint of public corruption and falsely accusedthe FBI Special Agent assigned to investigateMcDonough’s complaint of public corruptionconcerning the scapegoat prosecution of misconduct.

(r) Trey Smith and Ogden caused a false complaintof misconduct to be made against Sr. Inv. O’Brien toimpugn his credibility and keep him from testifyingat trial about the scapegoat prosecution and thenefarious conduct of Trey Smith, Ogden and others.

(s) McNally and Trey Smith acted to prevent theCounty from commencing action to have the orderappointing a special prosecutor nullified, despitehaving notice and knowledge of its invalidity andthat his actions were outside the scope of legalauthority.

(t) McGrath, O’Malley, Brown and Ogden gavefabricated false testimony before a Grand Jury toinitiate the scapegoat prosecution.

(u) McGrath, O’Malley, Brown, Ogden, McInerney,Dan Brown, Renna and DeFiglio conspiratorially

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gave fabricated false testimony at trial to continuethe scapegoat prosecution.

(v) Alan T. Robillard (“Robillard”), a private-hireForensic Document Examiner who is labeled on theworld-wide-web site of a Certified HandwritingExaminer as being an “unethical professional liar forhire”, effectively became part of the prosecutionteam, reviewed the indictment, what Trey Smith toldhim was evidence and gave the patently incredibleand subjective fabricated false opinion trialtestimony that the AB Agent names and Excuses onall the questioned AAB appeared more likely thannot to have been written by McDonough but thensaid it was overwhelming evidence of his guilt tosupport the preposterous prosecution theory,corroborate the fabricated false testimony ofMcGrath, Ogden, O’Malley, Brown, McInerney andRenna to continue the scapegoat prosecution andconvict McDonough in return for substantial witnessfees (about $100,000.00).

(w) Also, upon Trey Smith’s directive, Robillardspecifically did not perform a simple ink analysis onDickenson and thirteen (13) AAB filed on September10, 2009 and September 14, 2009 because they knewall the entries on them appeared to have beenwritten in the same ink which forensic finding alonewould have exonerated McDonough and debunkedthe theory upon which his prosecution was based byestablishing that those AAB were falsely completedor forged by McInerney, Brown and/or other DemC/O before being filed and that the testimony ofMcGrath, Brown, Ogden, O’Malley and McInerney tothe contrary was false.

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11. Above all, Trey Smith unlawfully acted toscapegoat prosecute McDonough and protect theguilt Dem C/O from prosecution by, among otherthings:

(a) Giving Dem C/O and others immunity orpromises of non-prosecution so they remained silent,falsely incriminated McDonough and/or did not tellthe truth that would have incriminated the Dem C/Oand exonerated McDonough;

(b) Not conducting a proper rudimentaryinvestigation that would have led to the discovery ofmore evidence sufficient to convict McGrath, Brown,McInerney and other Dem C/O for forging AB andprevented the scapegoat prosecution;

(c) Ignoring, not obtaining and effectively buryingevidence sufficient to convict McGrath, Brown,McInerney and other Dem C/O and prevent thescapegoat prosecution;

(d) Fabricating the false Grand Jury testimony ofOgden, Brown and O’Malley to corroborate the falseaccusations of McGrath as needed to initiate theprosecution; and

(e) Fabricating the additional false trial testimonyof DeFiglio, O’Malley, McInerney, Brown, Renna andRobillard as needed to continue and cover-up thescapegoat prosecution after McDonough caused thearrest and ostensible prosecution of McInerney,Brown and Renna.

12. At all times relevant, defendantsconspiratorially acted to deprive McDonough of hisfederal constitutional and statutory rights to dueprocess, a fair trial, present a defense, equalprotection and public employment.

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13. At all times relevant, defendants initiated andcontinued the wrongful scapegoat prosecution ofMcDonough for acts he did not commit that do notconstitute the crimes charged as a matter of lawwithout probable cause based solely on fabricatedfalse testimony, with malice and intent to deprivehim of his federal constitutional and statutory rightsto due process, a fair trial, present a defense, equalprotection and public employment.

14. At all times relevant, defendants initiated andcontinued the wrongful scapegoat prosecutionagainst McDonough without probable cause basedsolely on fabricated false testimony in order to coercehim into pleading guilty to alleged crimes charged orconvict him and thereby deprive him of his federalconstitutional and statutory rights to due process, afair trial, present a defense, equal protection andpublic employment without excuse or justificationand to protect from prosecution those Dem C/O whocommitted the AB forgery.

15. The defendants’ acts also included thecriminal violation of state judiciary and penal law,federal civil rights law and/ or other statutes.

16. The insidious mixed-motivated conspiratorialprosecution ended in McDonough’s favor onDecember 21, 2012 when his wrongful prosecution ona seventy-four (74) felony count indictment ended inacquittal and dismissal of all charges after twoprotracted trials.

17. Nonetheless, there is little doubt thatMcDonough would have been wrongfully convictedbut for the extraordinary acts he took in defendinghis innocence that, among other things, caused: (a)

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the FBI to investigate the AB forgery and scapegoatprosecution in 2011 without Trey Smith’s priorknowledge until he effectively stopped it; (b) NYSPSr. Inv. O’Brien to investigate the AB forgery in2011, arrest McInerney and make known theimminent arrest of Brown and Renna without TreySmith’s prior knowledge; (c) Trey Smith to ostensiblyprosecute McInerney, Brown and Renna as well asfabricate their false trial testimony to cover-up andcontinue the scapegoat prosecution, which led to thediscovery of more evidence of the conspiracy thatotherwise would not have been disclosed becausethose defendants would have invoked their FifthAmendment rights and remained silent, as planned.

PROCEDURAL REQUIREMENTS

18. Plaintiff is not required to exhaust anyadministrative procedures prior to suit under theUnited States Constitution and the Civil Rights Actof 1871.

JURISDICTION AND VENUE

19. The jurisdiction of this Court is invokedpursuant to 28 U.S.C. §§ 1331 and 1343 and Rules 18and 20 of the Federal Rules of Civil Procedure toprotect and remedy the deprivation of rights securedby: (a) The Fourth Amendment to the United StatesConstitution providing for the rights of all personswithin the jurisdiction of the United States to be freefrom unreasonable searches and seizures; (b) TheFifth Amendment right not to be deprived of libertywithout due process of law; (c) The Sixth Amendmentright to a fair trial; (d) the Fourth Amendment Rightto due process of law, both procedural andsubstantive, and (e) The Civil Rights Act of 1871, 42

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U.S.C. § 1983 and § 1988 providing for the protectionof all persons in their civil rights as well ascompensatory damages, punitive damages, and otherrelief to redress the deprivation of protected federalconstitutional and statutory rights under color ofstate law.

(d) The unlawful violations of plaintiff’s federalconstitutional and statutory civil rights complainedof herein were committed within the NorthernDistrict and State of New York.

20. Venue is proper in this District under 28U.S.C. § 1391 (b)(2).

21. Venue is appropriate in this district becausethe alleged conspiratorial acts of the defendants,especially the prosecution and trial of the plaintiff atwhich all of the named individual defendants gavetestimony occurred therein. Also, the only defendantwho resides outside of the district contracted withthat county and was paid by it to testify in that trial.

Plaintiff

22. Plaintiff, Edward G. McDonough(“McDonough”) is a citizen district, residing in theCounty of Rensselaer, Town of Schaghticoke andState of New York.

23. At all times relevant, plaintiff McDonoughwas and is employed by defendant The County ofRensselaer, New York, as a full-time DemocraticCommissioner of The Rensselaer County Board ofElections.

Defendants

24. Defendant Youel C. Smith III, aka andpracticing law under the assumed name of “Trey

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Smith”, (“Trey Smith”) is a citizen of the UnitedStates and a resident of this district, residing in theCounty of Rensselaer, State of New York.

25. At all times relevant, defendant Smith wasacting in his purported capacity as a Special DistrictAttorney appointed pursuant to an ultra vires Orderof the Supreme Court of the State of New York.Plaintiff claims against him in his individual andofficial capacities.

26. Defendant Richard J. McNally, Jr.,(“McNally”) is a citizen of the United States and aresident of this district, residing in the County ofRensselaer, State of New York.

27. At all times relevant, defendant McNally wasemployed by defendant County as its elected DistrictAttorney. Plaintiff claims against him in hisindividual and official capacities.

28. Defendant Kevin B McGrath (“McGrath”) is acitizen of the United States and a resident of thisdistrict, residing in the County of Rensselaer, Stateof New York.

29. At all times relevant, defendant McGrath wasa private citizen acting in concert and agreementwith the named municipal officials, employees andfinal policymakers in their official capacities.Plaintiff claims against him in his individual andrepresentative capacities.

30. Defendant John F. Brown (“Brown”) is acitizen of the United States and a resident of thisdistrict, residing in the County of Rensselaer, Stateof New York.

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31. At all times relevant, defendant Brown was aprivate citizen acting in concert and agreement withthe named municipal officials, employees and finalpolicymakers in their official capacities. Plaintiffclaims against him in his individual andrepresentative capacities.

32. Defendant William A. McInerney(“McInerney”) is a citizen of the United States and aresident of this district, residing in the County ofRensselaer, State of New York.

33. At all times relevant, defendant McInerneywas a private citizen acting in concert andagreement with the named municipal officials,employees and final policymakers in their officialcapacities. Plaintiff claims against him in hisindividual and representative capacities.

34. Defendant John J. Ogden (“Ogden”) is acitizen of the United States and a resident of thisdistrict, residing in the County of Rensselaer, Stateof New York.

35. At all times relevant, defendant Ogden was aprivate citizen acting in concert and agreement withthe named municipal officials, employees and finalpolicymakers in their official capacities. Plaintiffclaims against him in his individual andrepresentative capacities.

36. Defendant Kevin F. O’Malley (“O’Malley”) is acitizen of the United States and a resident of thisdistrict, residing in the County of Rensselaer, Stateof New York.

37. At all times relevant, defendant O’Malley wasa private citizen acting in concert and agreementwith the named municipal officials, employees and

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final policymakers in their official capacities.Plaintiff claims against him in his individual andrepresentative capacities.

38. Defendant Daniel B. Brown (“Dan Brown”) is acitizen of the United States and a resident of thisdistrict, residing in the County of Albany, State ofNew York.

39. At all times relevant, defendant Dan Brownwas a private citizen acting in concert andagreement with the named municipal officials,employees and final policymakers in their officialcapacities. Plaintiff claims against him in hisindividual and representative capacities.

40. Defendant Anthony J. Renna (“Renna”) is acitizen of the United States and a resident of thisdistrict, residing in the County of Rensselaer, Stateof New York.

41. At all times relevant, defendant Renna was aprivate citizen acting in concert and agreement withthe named municipal officials, employees and finalpolicymakers in their official capacities. Plaintiffclaims against him in his individual andrepresentative capacities.

42. Defendant Alan T. Robillard (“Robillard”) is acitizen of the United States and a resident of theUSDC, District of Massachusetts, Boston division,residing in the County of Dukes, State of NewMassachusetts.

43. At all times relevant, defendant Renna was aprivate citizen acting in concert and agreement withthe named municipal officials, employees and finalpolicymakers in their official capacities and as aspecial (contract) employee of sad county for

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purposes of the services provided. Plaintiff claimsagainst him in his individual and representativecapacities.

44. Defendant The County of Rensselaer, NewYork (“County”) is a municipal corporation andgovernmental subdivision organized and existingpursuant to the laws of the State of New York,located in this district.

45. Defendant County operates under andpursuant to the laws, policies, practices and customsof the State of New York and the color of authoritythereby vested in it.

46. The Rensselaer County Legislature was and isthe legislative body of the defendant County vestedwith authority to enact county laws, ordinances andregulations; to establish municipal policy, customand practice; and, to perform other legislative andadministrative functions,

47. The Rensselaer County Executive was and isthe executive body of the defendant County vestedwith the authority to establish municipal policy,custom and practice; and, to perform other executiveand administrative functions.

48. Upon information and belief, at all timesrelevant, defendants Smith and McNally heldthemselves out to be, and were, acting within thescope of their employment, official office or agencywith the defendant County.

49. Upon information and belief, at all timesrelevant, defendants Smith, McNally and Ogdenacted under color of state law, to wit: under the colorand pretense of the statutes, ordinances, regulations,

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policies, customs, practice and/or usages of the Stateof New York and/or the defendant County.

RECORD FACTS COMMON TOCONSPIRATORIAL FABRICATION OF FALSEEVIDENCE, MALICIOUS PROSECUTION, AND

ABUSE OF CRIMINAL PROCESS

50. The following record facts were or should havebeen known to Trey Smith at all times relevantbefore and/or during his investigation andprosecution of McDonough.

I. McGrath Initiated AB forgery beforeSeptember 2009.

51. In the summer of 2009, McGrath openly andpublicly bragged that he was going to take control ofthe WFP line for the City of Troy elections away fromRepublican operative Robert Mirch (“Mirch”) andreturn it to its candidates (i.e. himself and otherDemocrats).

52. Subsequently, in August 2009, McGrath tookaction to “beat Mirch at his own game” byapproaching several people he knew whom Mirchhad enrolled in the WFP (“friend-lies”), includingMarc Welch (“MWelch”) and Jennifer Taylor(“Taylor”).

53. McGrath had those WFP members sign anAAB without completing it, discussing theireligibility to vote by AB or naming an AB Agent.

54. McGrath told some of those WFP membersthat they would receive an AB when, in fact, he knewthat none would, and none did.

55. Upon information and belief, McGrath and/orother Dem C/O then completed those AAB with false

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AB Names and Excuses, filed them and obtained theAB released on them.

56. Upon information and belief, McGrath and/orothers then falsely voted those AB and filed them inforged AB envelopes (hereinafter, “AB” is absenteeballot individually, or absentee ballot and ABenvelope collectively).

A. Taylor AAB: McGrath Gave McDonough aFalse Excuse to Write on AAB.

57. Significantly, on August 24, 2009, McGrathbrought the Taylor AAB to the BOE, but McDonoughtold him it could not be filed because it did not statean Excuse.

58. McGrath then told McDonough the Excusethat he said Taylor gave him and pursuant to lawfulBOE practice, McDonough wrote it on the AAB so itcould be filed.

59. McDonough did not know the Excuse McGrathgave him was inaccurate or false.

B. Mirch Discovered McGrath’s AB Forgery andRequested Federal Investigation.

60. On or about September 14, 2009 BOECommissioner Bugbee told Republican operativeMirch that AAB and AB were filed for some voters hehad enrolled in the WFP.

61. Upon information and belief, on September 15,2009 McGrath taunted Mirch that he had “taken” anumber of “his” AB votes from WFP members Mirchenrolled in the WFP.

62. Consequently, on September 15, 2009, Mirchtalked to a few of those WFP voters, including Taylorand Dickenson, and discovered they signed

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incomplete AAB for McGrath that were falselycompleted without their permission and their ABwere forged.

63. Mirch then brought Taylor and Dickenson tothe polls to vote in person.

64. McGrath saw Taylor and/or Dickinson at thepolls and learned that they told Mirch about theirfalsified AAB and forged AB.

II. Brown, McInerney, DeFiglio and OthersJoined in AB Forgery.

65. On or about late August or early September2009, Brown insisted that McInerney help himcommit AB forgery to win the WFP primary.

66. In turn, McInerney had DeFiglio and Rennaassist in the AB forgery.

A. McInerney and DeFiglio Had Voters SignAAB Before September 10, 2009.

67. Consequently, on one or about one or moreoccasions prior to September 10, 2009 McInerneyand DeFiglio sought to have public housing WFPresidents sign incomplete AAB.

68. Upon information and belief, McInerney andDeFiglio had WFP members sign an AAB withoutcompleting it, discussing their eligibility to vote byAB or naming an AB Agent.

69. Upon information and belief, Galuski alsoassisted McInerney and DeFiglio have voters signincomplete AAB prior to September 10, 2009.

70. Upon information and belief, McInerney,DeFiglio and/or Galuski told some voters that

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signing an AAB “was a new way to vote” or that anAB would be returned to them.

71. No voter gave any Dem C/O permission towrite a false Excuse or AB Agent on their AAB, forgetheir AAB, falsely vote their AB or forge theirsignature on AB envelope.

72. Upon information and belief, McInerney,Brown, Dan Brown and/or other Dem C/O completedthose AAB with false AB Names and Excuses andfiled them at the BOE.

73. Upon information and belief, McInerneyand/or other Dem C/O also totally forged some AABfor WFP members whose residences they visitedbefore September 10, 2009, when it was discoveredthat the person moved or did not answer the door.

74. On or about September 10, 2009, aboutthirteen (13) AAB for voters that McInerney,DeFiglio and Galuski visited were filed at the BOEby Brown or Dan Brown.

75. All of those AAB were falsely completed orforged.

76. Upon information and belief, McInerney,Brown, Dan Brown and/or other Dem C/O obtained,forged and filed the AB released on all of those AAB.

77. On/about September 12, 2009, all the ABreleased on the AAB filed on September 10, 2009,were filed at the BOE.

78. All those AB were forged,

79. Upon information and belief, McGrath, Brown,Dan Brown, McInerney, DeFiglio, Renna and/orother Dem C/O committed that AB forgery inconspiracy.

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80. In short, upon information and belief,McInerney, Brown, Dan Brown and/or other DemC/O had voters sign incomplete AAB so they couldcomplete them with false Excuses and AB Agents,file them and obtain and falsely vote their AB “theright way” for Democrats.

B. September 12, 2009: Dem C/O ConcertedEffort to Get Signed AAB.

81. On September 12, 2009, McInerney hadMcGrath, Brown, Dan Brown, LoPorto, Martiniano,Gary Galuski (“Galuski”), Clement Campana(“Campana”), DeFiglio and Thomas Aldrich(“Aldrich”) assist him in an effort to have WFP publichousing residents sign AAB.

82. On that date, McInerney, McGrath, Brown,Dan Brown, DeFiglio, LoPorto, Martiniano, Galuski,Campana and Aldrich had WFP members sign anAAB without completing it, discussing theireligibility to vote by AB or naming an AB Agent.

83. At the time, McInerney, McGrath, Brown, DanBrown, DeFiglio, LoPorto, Martiniano, Galuski,Campana and/or Aldrich told some voters thatsigning an AAB “was a new way to vote” or that anAB would be returned to them.

84. No voter gave any Dem C/O permission towrite a false Excuse or AB Agent on their AAB, forgetheir AAB, falsely vote their AB or forge theirsignature on AB envelope.

85. Upon information and belief, later onSeptember 12, 2009, Brown and/or Dan Brown tookpossession of all those AAB (about 35) that the voterssigned that day.

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86. Upon information and belief, McInerney,Brown, Dan Brown and/or other Dem C/O completedthose AAB with false Excuses and AB Agents names,filed them and obtained the AB released on them.

87. Upon information and belief, McInerneyand/or other Dem C/O also totally forged some AABfor WFP members whose residences they visitedbefore September 12, 2009, when it was discoveredthat the person moved or did not answer the door.

88. Upon information and belief, McInerney,Brown, Dan Brown and/or other Dem C/O obtained,forged and filed those AB.

89. Upon information and belief, McGrath, Brown,Dan Brown, McInerney, DeFiglio, Renna and/orother Dem C/O committed that AB forgery inconspiracy.

90. In short, upon information and belief,McInerney, Brown, DeFiglio, Renna and other DemC/O had voters sign incomplete AAB so they couldcomplete them with false Excuses and AB Agents,file them and obtain and falsely vote their AB “theright way” for Democrats.

C. Brown and McInerney Admitted the ABForgery to Martiniano.

91. In fact, as discussed below, on September 12,2009, Brown admitted to Martiniano that he wasgoing to use the AAB to forge signatures on ABenvelopes and McInerney told him not to worryabout it because all of the AAB were going to him.

92. Also, all the Dem C/O knew that McInerneywas the de facto strategist for Troy City Councilcandidates, supporter of Brown (he called “Mayor”),

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key operative for Chair Wade, close associate ofRenna and DeFiglio, prolific AB votes gatherer andfriend of McNally.

D. Dem C/O Were Aware of AB Process andLawful BOE Practice.

93. At all times relevant, McGrath, McInerney,Brown and other Dem C/O knew about the ABprocess and related BOE practices.

94. Therefore, at all times relevant, McGrath,Brown, Dan Brown, McInerney, DeFiglio and theother Dem C/O involved in having voters sign AABknew that an AB could not be obtained by or for avoter unless an AAB was filed.

95. At all times relevant, those Dem C/O knewthat an AAB could not be filed unless it was signedby the voter and completed with all requiredinformation, including an Excuse.

96. At all times relevant, those Dem C/O alsoknew that an AB could not be released to anyone buta voter unless an AB Agent was named on his/herAAB.

97. At all times relevant, the named Dem C/Oknew that a voter or his/her agent could legallycomplete an AAB and obtain their AB.

98. McGrath, Brown, Dan Brown and other DemC/O admitted those facts at trial and none of themcan genuinely deny their knowledge of the ABprocess or related BOE practices.

99. Thus, those Dem C/O knew that they could notobtain and falsely vote an AB unless they first forgedor completed a signed AAB with a false Excuse andAB Agent.

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100. In fact, AB voting is a simple process involvingan AAB, AB and AB envelope.

101. An AAB is a simple, single page documentthat must be signed and completed by the voter orhis agent before it can be filed with the BOE.

102. Once an AAB is completed, signed and filed,an AB and AB envelope is mailed by the BOE to thevoter or, if an AB Agent is named on the AAB,released to the AB Agent or any person designatedby the voter or an AB Agent to obtain it.

103. Under state law, any of those documents canbe completed, filed and/or delivered by or to a voteror any agent of a voter.

104. At all times relevant, it was lawful BOEpractice to assist voters and their agents, includingpolitical operatives and community activists,properly complete and file AAB.

105. At all times relevant, it was lawful BOEpractice to release AB to any person designated bythe voter or his/her agent to obtain it.

106. Therefore, the Dem C/O adopted a simplescheme to commit AB forgery in 2009 and prioryears, i.e. they targeted public housing voters todefraud them into signing incomplete AABregardless of whether they were eligible to vote byAB or would vote for Democrat candidates and thencompleted them with false Excuses and AB Agents toobtain and vote their AB “the right way” becausethey would be less likely to know, care or complainabout it.

107. As discussed below, DeFiglio admitted to TreySmith and Ogden in October or November 2009 that

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the 2009 AB forgery was committed principally byMcInerney and Brown and that Dem C/O hadengaged in the same AB forgery scheme to defraudpublic housing voters for at least the prior 25 years,decades before McDonough was a BOECommissioner.

108. In fact, the subject AB forgery was discoveredonly because McGrath brazenly targeted some votersMirch had enrolled in the WFP, Brown wanted asmany AB votes as possible and McInerney forged toomany AB. For example, when DeFiglio was assistingMcInerney, if a voter had moved or did not answerthe door, McInerney said “that one’s ours”, and forgedAB documents for that voter.

E. McGrath and McInerney Told McDonoughthat Dem C/O Were Going to Engage inConcerted Effort to Obtain AB Votes.

109. On or about early September 2009, McInerneymentioned to McDonough that Dem C/O were goingto engage in a concerted effort to get AB votes for theWFP primary.

110. However, McInerney and all the other DemC/O involved in effort to have voters sign AAB knewthat McDonough was not involved in any campaignfor any primary election.

111. Therefore, those Dem C/O should havedisclosed to Trey Smith through counsel thatMcDonough was not involved in their efforts toobtain AB votes, especially after he leaked to themedia on or about October 2009 and, thereafter, thatMcDonough was the primary target.

112. Regardless, the record facts also make it clearthat by November 2009, Trey Smith knew that

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McDonough did not participate in the campaignactivities of any candidate involved in any of theapproximately forty (40) primary elections held in2009.

113. More importantly, as discussed below, TreySmith and Ogden admitted during McDonough’sprosecution that they had no reason to suspect hewas involved in the AB forgery until March 2010when McGrath, for immunity, accused him of writingfalse Excuses on two of the many AAB he filed in theWFP, Democrat and Independent Party primaries.

114. In truth, the record facts establish that nocompetent or incompetent investigator could havehad reasonable cause to suspect that McDonoughfalsified AAB or was involved in the AB forgery atany time during Trey Smith’s investigation, evenafter McGrath made his patently false accusationsagainst him.

III. Events of September 14, 2009 at BOE andMcDonough’s Office: Brown Filed About 30

Forged/Falsified AAB. Brown GaveMcDonough/O’Malley False AB Agents/ Excuses

for 13 AAB. McGrath Witnessed Brown GiveO’Malley False Excuses.

115. On September 14, 2009, Brown brought theAAB (about 35) that he, McInerney, Dan Brown,DeFiglio, LoPorto, Martiniano, Galuski, Campanaand/or Aldrich had voters sign on or beforeSeptember 12, 2009 to McInerney to be photocopiedand used to forge AB envelopes.

116. On September 14, 2009, Brown then obtainedthose AAB from McInerney and brought them to theBOE for filing.

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117. Upon information and belief, McInerney,Brown and/or Dan Brown purposely did not falselycomplete thirteen (13) of the AAB that Brown filedon September 14, 2009, so that a BOE employeewould assist in the filing process by unwittinglywriting the false Excuses and AB Agents names theygave them onto those AAB to give them plausibledeniability if caught.

118. It may also be that Mirch discovered throughTaylor and Dickenson that McGrath was involved inthe AB forgery before Brown brought those AAB tothe BOE.

119. Brown vaguely admitted at trial that helooked at some of those AAB before he brought themto the BOE and noticed that “some” were completed.

120. Brown also admitted at trial that he did notask to speak with McDonough and had no specificintent to do so at that time.

121. Brown also admitted at trial that he intendedto take the AB released on those AAB to McInerneyso he could forge them.

122. In accordance with BOE practice, McDonoughreviewed the AAB to ensure that they could be filedand found that all but thirteen (13) were completedand signed.

123. McDonough set aside five (5) AAB that did notname an AB Agent and told Brown that the AB forthem would be mailed to those voters and could notbe released to him.

124. In response, Brown asked McDonough to writehis name as AB Agent on them so the AB could bereleased to him, but McDonough refused and

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reiterated that only an AB Agent name provided bythe voters could be entered on any AAB.

125. Brown then used his cell phone and toldMcDonough that he obtained the AB Agent namesthat the voters gave to others for those AAB.

126. However, Brown did not obtain thatinformation from the voters.

127. In fact, Brown first telephoned McInerney. Hethen telephoned WFP Chair James Welch (“JWelch”)and WFP Co-Chair Brandt Caird (“Caird”) and gottheir permission to falsely name them as the voters’AB Agents on those AAB.

128. Brown admitted those facts at trial.

129. However, Brown did not admit that he gavethose Excuses or AB Names to McDonough andO’Malley or the truth that would have proved theperjury of McGrath and O’Malley, proved theconspiratorial scapegoat prosecution and exoneratedMcDonough. Instead, he committed more perjury tocontinue the scapegoat prosecution as discussedbelow.

130. In any event, McDonough did not know thatthose voters never gave anyone an Excuse or ABAgent name or that Brown did not obtain them fromthe voters or their agents.

131. Brown then gave McDonough the names hesaid the voters gave as AB Agents.

132. In accord with lawful practice, McDonoughwrote those names onto those AAB.

133. McDonough also told Brown that (8) AAB didnot state an Excuse and they could not be filed

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unless Excuses the voters gave were obtained andentered on them.

134. McGrath then came into the room and askedMcDonough for assistance.

135. So, McDonough called O’Malley into the officeand asked him to help Brown by writing the Excuseany voter gave onto their respective AAB if heobtained it.

136. Brown made telephone calls and told O’Malleythe Excuses he said voters gave.

137. In accord with lawful practice, O’Malley thenwrote those Excuses onto those eight (8) AAB whilesitting across the desk from Brown.

138. McDonough, McGrath, Brown and O’Malleywere in the small office at that time.

139. Upon information and belief, O’Malley did notknow that those voters never gave anyone an Excuseor that Brown did not obtain them from the voters ortheir agent.

140. Upon information and belief, Brown,McInerney and/or other Dem C/O forged or falselycompleted all of those AAB before Brown broughtthem to the BOE.

141. At the same time, on September 14, 2009,Brown also brought the AAB for David Daniel(“Daniel”) in the WFP primary and AAB for KathleenDeFabio (“DeFabio”), James Petit (“Petit”) andCharles Tangredi (“Tangredi”) in the Independentand Democratic Party primaries to the BOE and filedthem separately from the other AAB.

142. As discussed below, Brown forged those four(4) AAB and AB released on them.

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A. Brown Asked McDonough to Take the ABRelease on AAB to McInerney. McInerney and/or

Others Forged Those AB and AB Envelopes.143. Before Brown left the BOE that day, he told

McDonough that McInerney was returning all theAB released on all those AAB he filed to the voters,but he could not wait for them and asked him todeliver those AB to McInerney at his office in TroyCity Hall.

144. As stated, McInerney previously toldMcDonough that Dem C/O were obtaining AB for theWFP primary and Brown was acting as an agent ofall those voters.

145. Therefore, McDonough brought those AB toMcInerney when he took a lunch break walk withO’Malley. O’Malley witnessed McDonough leave theAB with McInerney.

146. All those AB were later forged by McInerneyand filed at the BOE by Couch at the request ofLoPorto.

B. McInerney Staged Return of AB. Renna AidedBrown in AB Forgery. LoPorto Asked Couch to

Take the Forged AB to the BOE.147. On September 14, 2009, McInerney met

Campana, LoPorto, Brown and Renna purportedly toreturn AB to the voters who signed AAB onSeptember 12, 2009.

148. Renna then gave Brown a few AB but stoppedhim from voting them in public.

149. In any event, after only a short time,McInerney announced that they were “done.”

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150. Upon information and belief, McInerneystaged the event to give an appearance that theforged AB were completed by the voters, especiallybecause of McGrath’s actions.

151. McInerney testifie d at trial that he forged allof those AB documents.

152. McInerney testified that he did not want toforge all those AB documents because he did nottrust the WFP operatives and was concerned thecrimes would be discovered, but he was pressuredinto doing it by all the Democrat candidates,including Brown and LoPorto.

153. Notably, McInerney also testified that herefused to file those forged AB and demanded thatone of the candidates do it because he did not want toforge them in the first place, did not trust the WFPand feared that the scheme would be discovered.

154. Upon information and belief, McInerneyrefused to file those forged AB, more specifically,because McGrath already bragged to Mirch that hetook some of “his” AB votes and McInerney rightlyexpected Mirch did, or would, discover the ABforgery through those voters.

155. McInerney testified at trial that he refused tofile those particular forged AB.

156. In his written deposition dated September 16,2011, McInerney stated that on September 15, 2009LoPorto called several times and asked if the AB“were done yet” and after he forged them he gavethem to LoPorto at City Hall in a manila envelope.

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157. On September 15, 2009, LoPorto then gavethose forged AB to Couch inside a folded newspaperand asked her to file them with the BOE.

158. On September 15, 2009, Couch filed thoseforged AB at the BOE.

159. McInerney testified that LoPorto knew thoseAB were forged when he got them.

160. However, McInerney admitted at trial thatMcDonough was not involved in the solicitation ofAAB or forging of AB or aware of his criminalactivities.

IV. Private Investigation Obtained Evidencethat was Sufficient to Convict McGrath and

DeFiglio and Should Have Lead to Discovery ofMore Evidence Sufficient to Convict Other

Identifiable Dem C/O.

161. On or after September 15, 2009, Mirchobtained the BOE Absentee Voter Master ListSummary that identified the AB Agents on the AABfiled for the WFP primary. Trey Smith also laterobtained that public record, which is incorporatedherein by reference.

162. Mirch then hired private investigators toobtain statements from the voters.

163. Investigators obtained affidavits from aboutthirty-five (3 5) voters who stated that their AABwere falsely completed or totally forged and their ABwere forged. Those voter affidavits incorporatedherein by reference.

A. Dem C/O Defrauded Voters into SigningIncomplete AAB. Voters Identified McGrath and

DeFiglio by Name and/or Described Brown,

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McInerney and Other Dem C/O by Appearance.Known and Identifiable Dem C/O Obtained.

Forged and Filed AB Documents.164. Some voters named McGrath and/or DeFiglio

and/or described McInerney, Brown, Dan Brown andother Dem C/O as having them sign AAB onSeptember 12, 2009.

165. Voters, therefore, likely would have identifiedMcInerney, Brown, Dan Brown and others if theywere shown photographs that accurately depictedtheir appearance.

166. Again, some voters disclosed that Dem C/Otold them that if they signed an AAB an AB would bereturned to them or it was “a new way to vote.”

167. Therefore the voters’ testimony was alsocompelling circumstantial evidence that McGrath,DeFiglio and identifiable Dem C/O committed the ABforgery in conspiracy.

B. Dem C/O were Named as AB Agents onFalsely Completed/Forged AAB.

168. Furthermore, the relevant BOE recordsshowed that the following Dem C/O and WFPoperatives were named an AB Agents on the numberof falsified and forged AAB as follows: (a) McInerney:1 (Suozzo); (b) Brown: 1 (Daniel; (c) McGrath: 2(Taylor and Dickenson); (d) Rick Mason (friend andhelper of McGrath): 2; (e) Michael Leonard (relativeof McGrath): 2; (f) DeFiglio: 6; (g) JWelch: 7; (h)Caird: 8; and, (i) Aldrich: 19.

169. Aldrich was a known supporter and associateof LoPorto and WFP operatives.

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C. Evidence Was Sufficient to Convict McGrath,DeFiglio and Other Dem C/O.

170. Therefore, the testimonial and documentaryevidence obtained through private investigation bySeptember 2009 was sufficient evidence to prove,among other things, that: (a) Known/identifiableDem C/O had voters sign an AAB, but not completeit; (b) Dem C/O did not ask voters if they had a validreason to vote by AB or wanted to name an AB Agentto obtain and deliver their AB; (c) False Excusesand/or AB Agent names were later written on theAAB; (d) The AAB were possessed and filed at theBOE by the Dem C/O; (e) The AAB for other voterswere totally forged; (f) The AB released on thefalsified/forged AAB were obtained by Dem C/O; (g)All those AB were forged and filed in support ofDemocrat candidates; (h) The object crime was thefalse voting of AB; (i) The defrauding of voters,falsification and forgery of AAB, forgery of ABenvelope and filing of false documents were crimesancillary to the false voting of AB; (j) The forged ABdocuments were direct and likely forensic evidence;and, (j) The Dem C/O who had voters sign AAB and/or were named as AB Agent on falsified/forged AABwere incriminated in crimes or material witnesses(i.e. McGrath, DeFiglio, McInerney, Brown, DanBrown, LoPorto, Campana, Galuski, Aldrich, JWelch,Caird, Mason, Leonard).

171. In short, that evidence was sufficient to provethat all the AB released on those AAB were forgedand filed by known and/or identifiable Dem C/O.

172. That evidence proved and common sensedictated the AB forgery was committed by those who

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directly benefited from it, i.e. known and identifiableDem C/O.

173. That evidence proved and common sensedictated that the AB forgery was committed by thoseknown and identifiable Dem C/O acting inconspiracy.

174. That evidence proved and common sensedictated that anyone who had voters sign AAB, whowas named as AB Agent on AAB or who filed ABdocument(s) committed the AB forgery or werematerial witnesses, i.e. the Dem C/O.

175. In particular, the affidavits of MWelch andTaylor established that McGrath knew on September15, 2009 that Mirch brought them to the polls afterlearning that he had them sign AAB that were laterfalsely completed and their AB were obtained, forgedand filed.

176. Also, numerous voters identified DeFiglio byname as having had them sign AAB that weresubsequently falsely completed for release of AB thatwere forged.

177. Therefore, the record facts establish that theevidence known by September 2009 was sufficient toconvict McGrath and DeFiglio of committing the ABforgery with others.

178. As discussed, the record facts also establishthat if that evidence was followed by onlyrudimentary investigation and prosecution tactics itwould have led to discovery of more evidencesufficient to convict all the other Dem C/O whocommitted the AB forgery, specifically Brown, DanBrown, McInerney and Renna.

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179. Furthermore, that evidence proved andcommon sense dictated that the completion of AABwith false AB Agents and Excuses was integral tothe AB forgery.

V. Lambertsen Action Commenced to InvalidateForged AB. Brown Prepared Press Release for

WFP to Accuse Mirch of Lying.

180. On September 23, 2009, Christian Lambertsencommenced action to invalidate AB filed by Dem C/Oin the WFP based on sixteen voter affidavits,affidavit of Mirch and BOE Absentee Voter MasterList Summary.

181. Those papers showed only that: forty-four (44)AB were released to McGrath, Brown, Rick Mason,Thomas Aldrich, DeFiglio, JWelch, Caird andMcInerney; at least thirty-five (35) AB were falselyvoted and filed with the BOE; and, at least thirty-five (35) AAB were completed falsely after beingsigned.

182. No particular person was identified as havingfalsely voted any AB, forged any AB envelope orcompleted falsely any AAB.

183. However, it was general knowledge and amatter of common sense that only those who stood tobenefit from the obvious broad-scoped scheme tofalsely vote AB were the Dem C/O who also wereknown to have been involved in a concerted effort“get out the vote” by AB.

184. On about that same day, Brown asked Welch,Caird and Couch to meet him at LoPorto’sRestaurant the next day, and they agreed.

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185. Brown also asked McDonough if he wouldmeet him there the next day.

186. McDonough met Brown because he was namedin the Lambertsen action and upset about the ABforgery, especially after the activity in his office onSeptember 14, 2009.

187. Notably, McGrath, McInerney, DeFiglio,Renna and LoPorto were not present.

188. At the meeting, Brown asked the WFPmembers to issue a Press Release he and his brotherhad prepared to publicly accuse Mirch of makingfalse allegations of voter fraud.

189. Couch refused Brown’s request and questionedhim about the AB forgery.

190. At that time, Brown told Couch that no crimeswere committed, “they were there” and “it isn’t as badas it looks” but he appeared to the others to be actingnervous and “guilty.”

191. At that time, Brown did not accuseMcDonough of writing false data on any AAB, askhim to make any comments or redirect any questionsabout the AB fraud to him.

192. McDonough did not know why Brown asked tomeet with him, did not know anyone else would bepresent, did not know who forged the AB documentsand was upset about the filing of false AB with theBOE so he asked if anyone was recording thediscussion, expressed anger at Brown and WFPabout the false use of their names as AB Agents andasked what they were going to do when confrontedwith prosecution and perhaps jail.

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193. Brown admitted those facts at trial and saidthat he asked McDonough to be there only to explainthe AB process, if needed.

194. Brown also admitted that he never talked toMcDonough about the AB forgery that he and otherDem C/O committed anytime before, during or afterthe meeting.

195. Still, Trey Smith introduced McDonough’scomments into evidence at Grand Jury and trial asadmissions and argued in summation: “who asks [ifanyone was recording the discussion] but a guiltyperson”; even though they were innocuous,

196. It is ironic that in doing so, Trey Smithadmitted his own liability and role in theconspiratorial scapegoat prosecution when hecompelled Sr. Inv. O’Brien to be subjected to aninterrogation based on a false allegation ofimpropriety made against him after he directed theindependent NYSP investigation into the AB forgeryand scapegoat prosecution, solely to question himabout the FBI investigation of McDonough’scomplaint of public corruption.

197. Specifically, as discussed below, Trey Smithasked Sr. Inv. O’Brien whether the FBI “bugged” hisoffice or “tapped” his telephone when investigatingMcDonough’s complaint of the scapegoat prosecution,while he perspired so profusely that sweat drippeddown his face.

198. Upon information and belief, as admitted byTrey Smith, he would not have made thoseadmissions of guilt unless he was involved in theconspiratorial scapegoat prosecution that the FBI

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and NYSP sought to expose based on McDonough’scomplaint and actions.

VI. McDonough Not Implicated in the ABForgery.

199. In fact, McDonough was not implicated in theAB forgery by any voter, witness, documentary orrelevant fact any time prior to December 2012.

VII. McInerney Got Patronage Job AfterForging AB Documents for Democrats

Including McNally in 2007 Election Won by AB,Threatened to Take Everyone Down ifProsecuted, Got Advice from McNally,

Retained McNally’s Attorney and DestroyedEvidence on Attorney’s Advice.

200. In 2007, Chair Wade gave McInerney thechance to earn a patronage job by working oncampaigns after he was fired from the statelegislature for telling a female co-worker that shewas promoted because she gave their male boss oralsex and a male homosexual coworker witness to itthat he was upset because he was not given the sameopportunity.

201. Subsequently, McInerney earnestly returnedto committing massive AB fraud.

202. That same year, McInerney forged hundredsof AB documents to help Democrats win election,including McNally, Brown and a majority of thecandidates for Troy City Council.

203. McInerney and McNally became friendsthrough the 2007 election process.

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204. At trial, McInerney testified that Renna waslike a father to him and taught him how to commitAB forgery (which, of course, Renna denied).

205. At all relevant times, Renna was known by thenamed Dem C/O and others as being a longtimewise-guy operative and close associate of McInerney.

206. At all relevant times, DeFiglio was known bythe named Dem C/O and others as being a longtimeoperative and close associate of McInerney.

207. DeFiglio later admitted to Trey Smith that healso assisted McInerney commit AB forgery forDemocrats, including McNally and Brown, in the2007 elections.

208. In January 2008, Chair Wade had McInerneyappointed Troy City Clerk by vote of the Troy CityCouncil Democrat majority, including Brown, inreward for his instrumental role he played in gettingthem and McNally elected in 2007.

209. Thereafter, McInerney committed AB forgeryfor Democrat candidates in 2008 elections and thesubject 2009 WFP primary, with the help of DeFiglioand Renna.

210. Upon information and belief, McInerney toldcandidates that he committed AB forgery for thembefore, during and/or after he did it so he could laterdemand protection from prosecution and/or politicalfavors from them,

211. Thus, on or about September 2009, McInerneyopenly warned that he would “take everyone down”with him if he was prosecuted for the AB forgery.

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212. Obviously, McInerney’s threat would haveconcerned only those who participated in his ABforgery or knowingly benefited from it.

213. McInerney admitted at trial that soon afterthe AB forgery was discovered he drove to McNally’shome (about 20 miles) only to ask what attorney heshould hire because he did not want to talk on thetelephone, but claimed that they did not talk aboutanything else.

214. McInerney admitted that McNally advisedhim at that time to retain the attorney whorepresented him in his 2007 election won by AB,many of which McInerney forged.

215. McInerney admitted that he retainedMcNally’s attorney based on his advice.

216. McInerney admitted that he followed hisattorney’s advice and threw his cell phone in theriver to destroy evidence and evade subpoena in theLambertsen action. Again, McInerney’s relevant trialtestimony is incorporated herein by reference.

217. Trey Smith knew or should have discoveredthose facts during his investigation.

218. However, those and many other significantfacts which also prove the conspiratorial prosecutionwere disclosed only after McDonough’s indictmentbecause of the actions he took in defending himselfthat caused Sr. Inv. O’Brien and the FBI to takeaction that led to the ostensible prosecutions ofMcInerney, Brown and Renna, as discussed.

219. It is expected that McInerney’s cell-phonerecords, which Trey Smith repeatedly claimed theNYSP could not obtain during his investigation

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despite repeated attempts, will show hecommunicated with McNally and Dem C/O beforeand/ or during the scapegoat prosecution.

220. It is expected that McNally’s public cell-phonerecords, which he refused to release despite a FOILrequest, will show he communicated with McInerney,Trey Smith and Chair Wade before and/or during thescapegoat prosecution.

221. It is expected that Trey Smith’s cell-phonerecords will show that he communicated withMcNally before and/or during the scapegoatprosecution.

VIII. Mirch Calls for Federal Investigation andTakes Evidence to U.S. Attorney

222. On September 28, 2009, Mirch held a pressconference and called for a federal investigation ofthe AB forgery because, upon information and belief,he was concerned that McNally would not prosecuteMcGrath or any other Dem C/O who committed thecrimes.

223. At the same time, Mirch also announced thathe was taking evidence of the AB forgery to the U.S.Attorney to demand a federal investigation.

IX. Chair Wade Picked McDonough to TakeFall for AB Forgery.

224. Upon information and belief, on or beforeSeptember 28, 2009, Chair Wade met with someDem C/O and discussed how the AB forgery shouldbe “handled.”

225. Chair Wade is a past BOE Commissioner andoperative for over 40 years.

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226. Upon information and belief, in 2009, he wasallied with McGrath, Brown, McNally andMcInerney, but not in favor of LoPorto and hethought McDonough was disloyal for voting againsthis 2006 election.

227. Upon information and belief, in 2009, ChairWade was concerned about the prosecution of anyDem C/O, especially his key operative whom he hadhired as Troy Clerk McInerney, the highlypolitically-connected, rising-star Troy CouncilmanBrown and brother of respected jurist, McGrath.

228. Upon information and belief, on or beforeSeptember 28, 2009, Chair Wade picked McDonoughto “take the fall” and be prosecuted for alleged crimeshe did not commit to protect the Dem C/O from beingprosecuted for the AB forgery they committed.

X. McNally Unlawfully Disqualified His Officeand Had Trey Smith Appointed. McNally and

Trey Smith Acted Beyond Scope of LegalAuthority.

229. Then, on September 28, 2009, the same daythat Mirch held a press conference and publiclycalled for a federal investigation, McNallyunilaterally disqualified his office and had TreySmith appointed to any investigation or prosecutionrelated to the AB forgery by an off-the-recordconference in-chambers conference with CountyCourt Judge Robert Jacon and the Lambertsenattorney.

230. McNally disqualified himself and assistantsfrom a broad-scoped investigation and prosecutionwithout written motion that established they all had

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an impermissible conflict or other lawful basis to bedisqualified, in contravention of State law.

231. At some time, an unsigned letter datedSeptember 18, 2009 requesting the appointment of aspecial prosecutor that McNally purportedly sent tothe County Court but not stamped by the countyclerk was produced. That letter is incorporatedherein by reference,

232. On September 28, 2009, the County Courtexecuted an order stating that McNally “disqualifiedhimself and his staff” for acting in the matterpertaining to the investigation of the Lambertsenaction “based on the speculation of politics and theappearance of impropriety ...” That Order isincorporated herein by reference.

233. Consequently, McNally disqualified his officefrom a broad-scoped investigation of what TreySmith publicly called “massive voter fraud” and theprosecution of all persons rather than from “aparticular case” (i.e. person) as required by N.Y.S.County Law § 701.

234. It is also clear from his purported letter andthe court Order that McNally did so without showingany actual or substantial likelihood of prejudice toany particular defendant because of a conflict ofinterest or abuse of confidence, as required by statelaw.

235. In his letter, McNally asked for theappointment of a special prosecutor “to avoid theappearance of impropriety” (i.e. presumably from theinvestigation or prosecution of fellow Democraticcandidates, officials and/or operatives) but did notshow any legal basis for his disqualification from the

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investigation or prosecution of McInerney,McDonough or any person.

236. Notably, at that time, only McGrath andDeFiglio were identified by name as being involvedin the solicitation of AAB. McInerney was not yetnamed or identified by any voter or witness as beinginvolved in the AB forgery.

237. Later, even with the benefit of hindsight,McNally opposed McDonough’s motion to disqualifyTrey Smith by asserting that he and his staff weredisqualified from the matter based on the affidavitsof the voters and Mirch in support of the Lambertsenaction. McNally’s My 7, 2011 affidavit is incorporatedherein by reference.

238. In short, McNally therein asserted for the firsttime that it was his opinion on September 26, 2009that he was disqualified from investigating orprosecuting any person for any of the subject electioncrimes because: (a) McInerney had worked on his2007 campaign; (c) DeFiglio had done campaign workwith McInerney in the past; (d) he had contact withJames Welch during his 2007 campaign; and, (b) hebelieved that Caird worked on his 2007 campaignbut did not know whether Aldrich did.

239. Therefore, McNally failed to show any conflictof interest or abuse of confidence that would haveactually or likely prejudiced any person by hisinvestigation or prosecution of any matter (althoughany such retrospective justification still would nothave cured the unlawful appointment in 2009).

240. Specifically, he did not establish that he andall his assistants should be disqualified from theprosecution of McDonough or McInerney or any

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identified person because it would result in an actualor substantial risk of prejudice to any such person (ordefined matter).

241. McNally’s unlawful self-disqualification wasan essential step in the extra-judicial conspiratorialscapegoat prosecution.

242. It was that act followed by the investigatorysuppression of evidence, opposition to thenullification of Trey Smith’s unlawful appointmentand conspiratorial fabrication of false testimony thatallowed for the initiation and continuation of thewrongful prosecution of an innocent person in lieu ofthose guilty of the election crimes.

243. Later, in an affirmation in opposition toMcDonough’s motion for disqualification of TreySmith and/or dismissal of the indictment based onhis unlawful appointment, McNally retrospectivelyclaimed that he disqualified himself from the matterbecause McInerney worked in his 2007 campaignand perhaps Caird and Welch did also, but he did notrecall.

244. Thus, McNally asserted after-the-act that hecould previously disqualify his office from such amatter prospectively without written motion orspecific legal basis because one or more people whoworked in some undefined role on his past electioncampaign might later be implicated or witness tocrimes, even though not yet identified as such.

245. As a matter of well-established State law,however, McNally did not establish a legal basis forthe disqualification of his entire office from theinvestigation and prosecution of McGrath, DeFiglio,Brown, McInerney or any person involved in the AB

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forgery as required under controlling State law atthe time.

246. Specifically, there was no legal or factual basiseven asserted for McNally’s self-disqualification froman investigation or prosecution of most of the DemC/O or McDonough.

247. Additionally, McNally did not file a properwritten motion for disqualification based on legallysufficient grounds as required by clearly establishedState law.

248. Therefore, McNally’s disqualification wasunlawful and all his acts in relation to theinvestigation and prosecution of McDonough werebeyond the scope of legal authority.

249. Similarly, Trey Smith’s appointment was anullity and all his acts in relation to theinvestigation and prosecution of McDonough werebeyond the scope of legal authority.

250. As stated, Trey Smith also acted beyond thescope of legal authority by indicting and prosecutingMcDonough for alleged acts that do not constitutethe forgery crimes charged.

251. As stated, upon information and belief,McNally unlawfully disqualified his office and hadTrey Smith appointed to scapegoat prosecuteMcDonough and protect McInerney, McGrath, Brownand other Dem C/O from being prosecuted for theirAB forgery.

252. Furthermore, McNally did not disqualify hisentire office from a pending Grand Juryinvestigation of allegations made against Chair

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Wade who only months before selected him asDemocratic candidate for District Attorney.

253. Upon information and belief, McNally did notin 2012 and/or 2013 disqualify his entire office fromthe prosecution of alcohol-related driving chargesagainst the daughter of Chair Wade from whom heobtained support for nomination as the Democraticcandidate for Justice of the Supreme Court in 2013.

254. For all the reasons discussed, those facts aremore circumstantial evidence of his allegedmisconduct in furtherance of the wrongfulprosecution of McDonough.

255. If McInerney had then or previously admittedto McNally that he committed AB forgery and/orthreatened to “take him down” if prosecuted,McNally was required to disclose those facts to thecourt and McDonough in support of thedisqualification and thereafter.

256. Even still, McNally would not have had anybasis for the disqualification of his entire officeunless he was expected to be called as a witnessbecause there could not have been any attorney-client relationship or other actual or likelihood ofprejudice, regardless of his friendship or pastcampaign assistance.

257. Upon information and belief, McNally alsoviolated the rules of ethics and N.Y.S. Judiciary Law§ 493 by giving legal advice to McInerney,McDonough and Martiniano, talcing physical custodyof AB documents and DNA reports related to thecase and discussing the matter with Trey Smithsubsequent to his unlawful self-disqualification.

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258. Upon information and belief, Trey Smith alsoviolated the rules of ethics, various provisions ofN.Y.S. and United States law, including N.Y.S.Judiciary Law § 493 and § 487, by among otherthings: fabricating false testimony to indict andconvict McDonough; indirectly giving legal advice toMcDonough that was contrary to his interests;depriving McDonough of his right to present adefense; suppressing exculpatory evidence; andaiding McInerney, Brown, McGrath and other DemC/O in avoiding prosecution for their crimes.

259. Upon information and belief, McNally, TreySmith and the named defendants alsoconspiratorially violated 18 U.S. Code § 242 bydepriving McDonough of his rights secured andprotected by the Constitution or laws of the UnitedStates under color of State law.

260. Consequently, Trey Smith is not entitled toabsolute or qualified immunity for any of his actionsrelated to the investigation, indictment andprosecution of McDonough

261. Similarly, McNally is not entitled to absoluteor qualified immunity for any of his actions relatedto the investigation, indictment and prosecution ofMcDonough.

XI. McNally, McInerney, Brown, Chair Wadeand Others Spread the Word to Dem C/O thatThey Should Not Talk Because “It Will All BeOver Soon.” Trey Smith Targeted McDonough

for Prosecution.

262. The record facts prove that almostimmediately after being appointed on September 28,2009, Trey Smith targeted McDonough for

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prosecution without probable cause in lieu ofprosecuting the known and identifiable Dem C/O forthe AB forgery they committed.

263. However, upon information and belief, TreySmith had to ensure that there was and would be nofederal investigation of the AB forgery beforeinitiating McDonough’s scapegoat prosecutionbecause Mirch publicly called for it and broughtevidence to the U.S. Attorney’s Office on the sameday that McNally had him appointed specialprosecutor.

264. Therefore, on or about between September 28,2009 and October 14, 2009, Trey Smith contacted theU.S. Attorney’s Office under the pretense oflegitimate law enforcement and determined thatthere would be no federal investigation orprosecution of the 2009 WFP primary AB forgery.See, copy of letters Trey Smith sent to the U.S.Attorney and FBI on April 27, 2011 and April 28,2011 after he learned about the FBI investigationare attached hereto as Exhibit A.

265. Then, on or about October 1, 2009 until July2011, Chair Wade, McNally, Brown, McInerney,Renna and others told the Dem C/O implicated in theAB forgery that they should not talk to theauthorities or worry about the matter because “itwill all be over soon.”

266. Upon information and belief, Trey Smith priorto October 1, 2009 told McInerney and Brownthrough their attorneys that they would not beprosecuted for the AB forgery.

267. Thereafter, on or about late October and/orearly November 2009, Trey Smith leaked to the press

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and others that McDonough was a primary targetwhose prosecution was imminent even though therewas no basis to suspect he was involved in the ABforgery.

268. Thereafter, on or about October 2009 and alltime relevant thereafter, Trey Smith conspiratoriallyfabricated false evidence to initiate and continue theprosecution of McDonough and protect the Dem C/Owho committed the AB forgery from prosecution.

XII. Hearing Evidence was Sufficient to Lead toConviction of Brown, McInerney and All Other

Guilty Dem C/O.

269. On October 1, 2009, the State court held ahearing in the Lambertsen case.

270. Trey Smith attended the hearing and tookpossession of all the falsified/forged AB documentsproduced or introduced into evidence.

271. The testimonial and documentary evidence atthe hearing implicated McGrath and DeFiglio byname and identifiable Dem C/O by description in theAB forgery.

272. The record of the proceeding which Trey Smithattended confirmed that the AB forgery wascommitted by the Dem C/O who “worked the streets”to solicit AB.

273. Also, Trey Smith worked with McDonough andother employees of the BOE during that time to gaina firm understanding of the election process, etc.

274. Furthermore, the record facts show that iffollowed by rudimentary investigation andprosecution tactics that evidence would have led tothe discovery of evidence sufficient to convict

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McGrath, DeFiglio, McInerney, Brown and all otherDem C/O guilty of the crimes.

A. Brown Committed Perjury re Daniel ABDocuments He Forged.

275. No Democrat candidate except Brown testifiedat the hearing.

276. In part, Brown testified that WFP member“David Daniels” was a friend who completed or gavehim permission to complete his AB documents thathe filed.

277. In truth, Brown and Daniel were not friendsand Brown had forged all of the AB documents hefiled for him.

278. Brown also forged all the AB documents thathe filed for DeFabio, Petit and Tangredi in theIndependence Party and Democratic Partyprimaries.

279. Upon information and belief, LoPorto gaveBrown the name of one or more of those persons forthe purpose of AB voting.

280. More notably, as stated, Brown filed forgedAAB for DeFabio, Petit and Tangredi at the sametime on September 14, 2009 that he filed the forgedDaniel AAB. Those AAB are incorporated byreference.

281. Thus, Brown committed perjury in a highlypublicized case in front of Trey Smith knowing thatDaniel, DeFabio, Petit, Tangredi and other witnessesand their forged AB documents were readilyavailable to prove his guilt of AB forgery and perjury.

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282. Additionally, Trey Smith took possession ofthe forged Daniel AB documents, knew Brown was asuspect and knew Daniel was a material witness.

283. It was also a matter of public record andknown or should have been known to Trey Smiththat Brown was also involved in Democratic andIndependence Party primaries.

284. All the AB documents filed in the Troy CityCouncil Democratic and Independent Partyprimaries were easily obtainable by Trey Smith at alltimes relevant.

285. Therefore, Trey Smith should have obtainedthe testimony of Daniel as well as the testimony andforged AB documents of DeFabio, Petit and Tangredithat alone would have been sufficient to convictBrown, but he did not.

B. Suozzo Testified About AB DocumentsMcInerney Forged.

286. Brian Suozzo (“Suozzo”) testified at theLambertsen hearing that his purported AAB, AB andAB envelope were forged.

287. Suozzo lived a few houses away fromMcInerney and knew him personally.

288. McInerney enrolled Suozzo in the WFP in2007.

289. McInerney was named as the AB Agent onSuozzo’s forged AAB.

290. Suozzo had no contact with any other DemC/O about AB voting.

291. McInerney had also forged AAB and AB forSuozzo and many other voters in 2007, 2008 and

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2009 elections in his distinctly unique andrecognizable handwriting.

292. Trey Smith took possession of the Suozzoforged AB documents.

293. Trey Smith knew that Suozzo was a materialwitness.

294. Trey Smith knew then or soon thereafter thatMcInerney was closely associated with Brown,DeFiglio, Renna and other candidates for whom hewas active in obtaining AB votes in the subject WFPprimary and prior elections, including McNally andBrown.

295. Trey Smith knew that McInerney’s physicalappearance matched the description some votersgave of one of the people who had them execute AAB.

296. At all relevant times, Trey Smith had access toall of the AB documents filed in all of the 2009, 2008and 2007 primary and general elections in Troy andRensselaer County.

297. Thus, Trey Smith should have obtainedSuozzo’s testimony and forged 2008 and 2007 ABdocuments that alone would have been sufficient toconvict McInerney, but he did not.

C. Mason Testified re AAB that McGrath hadDickenson and Taylor Sign

298. Mason testified that he saw voters Dickensonand Taylor sign AAB for McGrath.

299. Those voters swore that their AAB werefalsely completed and AB forged.

D. Trey Smith Gave MeNally Custody of the ABDocuments, Talked to McNally About AB

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Forgery and Had NYSP DNA Reports Sent toMcNally.

300. Trey Smith admitted during McDonough’sprosecution that he and McNally talked about theAB forgery after McNally disqualified himself fromthe matter.

301. Upon information and belief, at or about thetime of the Lambertsen hearing, Trey Smith tookpossession of the AB documents and put them intothe custody of McNally’s office.

302. On or about January 11, 2010, May 19, 2010and November 2, 2010, the NYSP laboratory sentMcNally its DNA reports regarding AB documents atthe request of Trey Smith.

303. Upon information and belief, Trey Smith didthose things for McNally to review and discuss thatevidence with him and/or McInerney and further thescapegoat prosecution.

XIII. McGrath Publicly Proclaimed HisInnocence and Called Voters Liars.

304. On or about Oct, 2, 2009, McGrath publiclyclaimed that he was innocent and effectively calledthe voters who incriminated him in the AB forgeryliars.

305. Specifically, the Times Union reported that:“[McGrath] disputed the accounts of Taylor andDickenson that they never filled out [their AB]. He ...retrieved the [AB] ... returnable to Mason ... but ...said there was nothing improper. ‘I took those [AAB]to the [BOE], and I did receive the [AB], and withcertainty I brought them back to those twoindividuals and they did absolutely sign those. I am

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a good guy. I did nothing wrong here and I lookforward to getting back on the campaign trail’.”

306. However, even though McGrath was brazenenough to publicly proclaim his innocence and goodmoral character in the face of irrefutable votertestimony that directly incriminated him in the ABforgery he did not then take the opportunity to allegethat: the AAB he filed must have been falselycompleted at the BOE; he once saw McDonoughtrample on the rights of his “friend-lies” by writingfalse Excuses on the Taylor and Dickenson AAB; andhe heard McDonough and Brown talk about namesto use as AB Agents on AAB,

307. Instead, like McInerney, Brown, Dan Brownand others involved in the crimes, he got an attorneyand refused to talk to the NYSP without immunity,which he soon received.

XIV. Trey Smith Told McInerney He Would NotBe Prosecuted and McInerney Was Not

Concerned about Being Prosecuted untilArrested at Direction of Sr. Inv. O’Brien in 2011

without Trey Smith’s Prior Knowledge.

308. McInerney forged hundreds of AB documentsin 2007, 2008 and 2009 in his normal distinct andidentifiable handwriting.

309. Also, at all relevant times, McInerney knewthat: (a) Trey Smith was purportedly conducting anextensive investigation with assistance of the NYSP;(b) he forged hundreds of AB in 2007, 2008 and 2009written in his normal unique handwriting that couldbe identified; (c) Suozzo and numerous other readilyavailable witnesses and forged documents sufficientto prove his guilt and corroborate the testimony of

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any accomplice could easily be obtained throughrudimentary investigation; (d) the testimony andforged AB documents of Suozzo alone would havebeen sufficient to convict him; (e) DeFiglio committedAB forgery in conspiracy with him, agreed tocooperate in October 2009 and disclosed detailedfacts to Trey Smith sufficient to prove his guilt on orabout October and/or November 2009 and thereafter;(f) McGrath was given immunity to cooperate, hadknowledge of facts that could prove his guilt andallegedly disclosed information to Trey Smith inMarch 2010; (g) McDonough, O’Malley and Brownknew he was given numerous AB for voters onSeptember 14, 2009 that were forged and filed onSeptember 15, 2009; (h) DeFiglio, Brown, McGrath,Dan Brown, LoPorto, Campana, Galuski, Renna andothers had knowledge of facts that could prove hisguilt; (i) Martiniano had knowledge of facts andadmissions that could prove his guilt; (j) Martinianocame forward in February 2011 and could testifyabout his and Brown’s admissions; (k) he and Brownhad Renna tamper with DeFiglio to keep him fromcooperating further with Trey Smith; and, (1) thematter was widely-reported and witnesses mightcome forward.

310. Nonetheless, soon after McInerney threatenedto take everyone down with him if prosecuted, talkedto McNally, hired McNally’s attorney, destroyedevidence and avoided legal process, McInerneyreturned to his usual daily activities without anyconcern of being prosecuted for the hundreds ofreadily provable AB forgery crimes he committed in2007, 2008 and 2009.

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311. Upon information and belief, prior to October1, 2009 and thereafter until on or about June 2011,Trey Smith told McInerney he would not beprosecuted for the AB forgery.

312. In fact, McInerney admitted at trial that TreySmith told him in 2009, 2010 and 2011 that he wouldnot be prosecuted.

313. McInerney also admitted that he had noconcern about being prosecuted for the easilyprovable AB forgery he committed until he wasunexpectedly arrested in July 2011 without TreySmith’s knowledge because of McDonough’s actionsin defense of his innocence.

314. Again, McInerney made those admissions onlybecause his ostensible prosecution was caused byMcDonough’s actions and the NYSP independentinvestigation. McInerney’s relevant trial testimony isincorporated herein by reference.

315. Still, McInerney asked McDonough severaltimes in 2009 not to tell the authorities that hedelivered the AB released on the falsified/forged AABthat Brown filed on September 12, 2009 to him, atBrown’s request, with O’Malley present.

316. Upon information and belief, McInerney did soto set-up McDonough for scapegoat prosecution infurtherance of the alleged conspiracy.

XV. Trey Smith Told Brown He Would Not BeProsecuted and Brown Was Not Concerned

about Being Prosecuted until McInerney wasArrested by NYSP in 2011 without Trey Smith’s

Prior Knowledge.

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317. Again, Brown committed AB forgery andperjury in court in front of Trey Smith.

318. Also, at all relevant times, Brown also knewthat: (a) Trey Smith was purportedly conducting anextensive investigation with assistance of the NYSP;(b) he forged numerous AB documents written in hisnormal handwriting that could be identified; (c) hecommitted perjury in the Lambertsen hearing aboutthe Daniel AB documents that he forged and filed atthe same time that he filed the forged AAB forDeFabio, Petit and Tangredi, and the testimony andAB documents of those voters that alone would havebeen sufficient to convict him could have been easilyobtained through rudimentary investigation andprosecution tactics; (d) Daniel and other readilyavailable witnesses and forged documents sufficientto prove his guilt of AB forgery and perjury couldeasily be obtained through rudimentaryinvestigation; (e) the testimony and forged ABdocuments of Daniel alone would have beensufficient to convict him; (f) DeFiglio committed ABforgery with McInerney for him, agreed to cooperatein October 2009, had knowledge of facts that couldprove his guilt and cooperated in October/November2009 and thereafter; (g) McGrath was givenimmunity to cooperate, had knowledge of facts thatcould prove his guilt and allegedly disclosedinformation to Trey Smith on or before March 2010;(h) McDonough, O’Malley and McGrath knew hefiled numerous AAB on September 14, 2009, gave ABAgent names and Excuses to McDonough andO’Malley to write on AAB he filed for release of ABhe asked McDonough to bring to McInerney thatwere filed on September 15, 2009 by Couch at the

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request of LoPorto (all of which of which werefalsified or forged); (i) DeFiglio, McGrath,McInerney, O’Malley, LoPorto, Campana, Galuski,Renna and others had knowledge of facts that couldprove his guilt; (j) Martiniano had knowledge of factsand admissions that could prove his guilt; (k)Martiniano came forward in February 2011 andcould testify about his and McInerney’s admissions;(1) his family allegedly set a job up for DeFiglio inVermont and he and McInerney had Renna tamperwith DeFiglio to keep him cooperating with TreySmith; and, (m) the matter was widely-reported andwitnesses might come forward.

319. Nonetheless, soon after Brown prepared apress release for the WFP to falsely accuse Mirch oflying about the AB forgery, falsely testified in courtabout the Daniel AB documents he forged andsuggested to other Dem C/O that McInerney shouldtake a plea so that they would not be prosecuted,Brown returned to his usual activities in 2009without any concern of being prosecuted even thoughhe knew his crimes were readily provable.

320. Upon information and belief, prior to October1, 2009 and thereafter until on or about June 2011,Trey Smith told Brown that he would not beprosecuted for the AB forgery.

321. In fact, Brown admitted at trial that TreySmith told him in 2009, 2010 and 2011 he would notbe prosecuted and he had no concern about beingprosecuted for the easily provable elections crimesand perjury he committed until McInerney wasarrested and evidence of his forgery of the Daniel,DeFabio, Petit and Tangredi AB documents was

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obtained without Trey Smith’s prior knowledge,because of the NYSP independent investigation.Brown’s relevant testimony is incorporated herein byreference.

XVI. Trey Smith Directed and Participated inInvestigation to Fabricate False Testimony to

Indict and Convict McDonough in Lieu ofGuilty Dem C/O.

322. Trey Smith directed and participated in theAB forgery investigation from his appointment onSeptember 28, 2009 until McDonough’s trialacquittal on December 21, 2012.

323. On or about October 14, 2009, the NYSPassigned Ogden and other investigators to assistTrey Smith in his investigation.

324. Trey Smith directed and participated in thegathering and analysis of evidence in aninvestigatory capacity, including the interrogationand questioning of witnesses, purportedly to followand obtain evidence against those who committedthe AB forgery.

325. The record facts prove, however, that TreySmith directed and participated in the gathering andanalysis of evidence in an investigative capacitythroughout all stages of the proceedings, includingthe interrogation of witnesses and purportedcooperating witnesses, solely to initiate and continuethe scapegoat prosecution, fabricate testimony,protect the guilty Dem C/O from being prosecutedand cover-up their conspiracies.

326. Specifically, Trey Smith directed orparticipated in the interrogation of all knownsuspects, material witnesses and purportedly

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cooperating Dem C/O during his investigation,including DeFiglio, McDonough, McGrath, Couch,Caird, JWelch, Aldrich, O’Malley, McInerney, Renna,Brown, Campana and Galuski.

327. Upon information and belief, however, asdiscussed below, Trey Smith directed or participatedin the interrogation of witnesses, suspects and DemC/O to suppress any truthful testimony that wouldincriminate the Dem C/O or exculpate McDonoughand to fabricate false testimony that wouldincriminate McDonough or corroborate such falsetestimony.

328. Trey Smith also directed and advised theNYSP laboratory in its use of a “new” method toextract DNA from sealed AB envelopes after manycostly failed attempts to obtain McDonough’s DNAfrom numerous AB documents.

329. Trey Smith and/or Ogden also attended thelaboratory when his proposed DNA extractionmethod was used and McDonough’s DNA wasallegedly found on three (3) AB envelopes, two (2) ofwhich he is certain he never touched, whichsupported their already debunked preposterousprosecution theory that all the AAB were falselycompleted at the BOE. The relevant emails, letters,reports and a photograph of Trey Smith wearinganti-contamination garb are incorporated herein byreference.

330. Ogden admitted at trial that Trey Smithdirected and participated in the investigationthroughout the case. His relevant testimony isincorporated herein by reference,

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331. Trey Smith admitted during argument on amotion concerning the taking of handwritingexemplars that NYSP Investigators Ogden andFancher had been “working on [the] case with [him]for two years”, “every step of the way” and that heconsidered them “to basically be one entity workingtogether.” The relevant portion of the transcript ofthat oral application is incorporated herein byreference.

332. On August 3, 2011, after learning that the FBIand supervisory NYSP were conducting aninvestigation into the scapegoat prosecution and ABforgery without his knowledge, Trey Smith sent amemo to Ogden and Fancher at 5:06 a.m. in which headmitted that he was acting in the capacity and roleof an investigator when he said: “None of this hasanything to do with the integrity of our investigationof McDonough.”

333. More significantly, upon information andbelief, Sr. Inv. O’Brien will testify that Trey Smith,among many other things: (a) directed andparticipated in the investigation, interrogation ofwitnesses and gathering and analyzing of evidence;(b) told the supervisory NYSP in 2009, 2010 and2011 the blatant lie that McInerney and Brown couldnot be prosecuted because the evidence was notsufficient to corroborate accomplice testimony; (c) didnot have prior knowledge of the NYSP independentinvestigation done in 2011 that led to the discoveryof substantial evidence sufficient to convictMcInerney, Brown and Renna; (d) did not have priorknowledge of the arrest of McInerney or imminentarrest of Brown and Renna; (e) interviewed guiltyDem C/O alone after misleading the NYSP or FBI

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about the same, including McInerney, Brown andDeFiglio; (f) aided McInerney in preparing thedeposition he gave as part of his purported“cooperation” without the presence of the police orFBI, contrary to law enforcement practice and NYSPpolicy; (g) took action to prevent McInerney, Brownand others from being prosecuted or meaningfully soeven after arrested or about to be by the NYSP; (h)essentially quashed a federal investigation into theAB forgery, prior election crimes and the allegedscapegoat prosecution; (i) compelled him to submit toan interrogation after Ogden indirectly caused falseallegations of leaking NYSP evidence to be madeagainst him, but then asked only about the FBIinvestigation of McDonough’s scapegoat prosecution,whether he was a target of the FBI investigation andwhether the FBI had had audio surveillance in hisoffice or telephones; and (j) made false statements tothe state court about relevant matters.

334. The fact that Trey Smith acted in aninvestigative capacity in gathering and analyzingevidence throughout the scapegoat prosecution ofMcDonough is also proven by certain memoranda,emails, depositions and other records maintained bythe NYSP and/or Trey Smith concerning the matter.Those relevant documents are incorporated herein byreference.

XVII. Trey Smith Had Sufficient Evidence toConvict McGrath, DeFiglio and McInerney and

All Other Guilty Dem C/O in 2009.

335. Through his investigation, Trey Smith and theNYSP (hereinafter referred to individually and/orcollectively as “Trey Smith”, unless specifically

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delineated) gathered sufficient evidence byNovember 2009 to convict McGrath, DeFiglio andMcInerney.

336. In regard to McInerney, the NYSP obtainedthe forged AB documents and testimony of more thanFifty (50) witnesses, including Suozzo whom theydiscovered was one of many voters McInerney hadsign registration cards and/ or AAB to forge their ABdocuments. Those forged AAB and voter depositionsare incorporated herein by reference,

337. In sum, that evidence confirmed thetestimonial evidence gathered by the privateinvestigation and irrefutably proved that all of theelections crimes were committed on the streets byMcGrath, Brown, McInerney, DeFiglio and otheridentifiable Dem C/O.

338. That evidence was also sufficient to prove thatMcGrath, Brown, McInerney and DeFigliocommitted the AB forgery in conspiracy with otheridentifiable Dem C/O.

339. Notably, all the Dem C/O involved in havingvoters sign AAB in September 2009 and others knewthat McGrath, Brown and McInerney were the threechief culprits in the crimes.

340. All those Dem C/O also knew that Brown wasclosely associated with McInerney and McInerneywas closely associated with DeFiglio and Renna inobtaining AB for candidates.

341. The evidence also showed the motives for themost culpable Dem C/O for the AB forgery, i.e.Brown sought to garner more votes than others towin the Council presidency; Dan Brown was Brown’sbrother and de facto campaign manager; McInerney

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was Brown’s most active supporter; DeFiglio andRenna were McInerney’s main assistant operatives;and, McGrath was in several primaries, supportedBrown and, most significantly, had openly braggedthat he was going to “beat Mirch at his own game”and “bring the WFP back to its members.”

342. The record facts also prove that if Trey Smithfollowed that evidence he would have easily andrelatively quickly obtained other evidence sufficientto convict all other Dem C/O who committed the ABforgery as well as McInerney for hundreds of ABforgery and election crimes he committed in 2007and 2008, especially if he required McGrath toprovide truthful information as dictated by theirpurported “cooperation” agreements, but he did not.

343. Nonetheless, the record facts also prove thatinstead of following the evidence, Trey Smithimmediately targeted McDonough for prosecutionwithout probable cause.

344. No voter, document or fact implicatedMcDonough in any criminal conduct.

345. Therefore, to initiate and continue thescapegoat prosecution Trey Smith then, among manythings; pretentiously adopted and pursued apreposterous prosecution theory he knew was wrong;buried crucial testimony of DeFiglio and otherwitnesses; did not seek readily available evidence orthe truthful cooperation of any perpetrator; acceptedthe self-serving incredible false assertions of manysuspects implicated in the crimes; immunized orgave extraordinarily favorable cooperationagreements to many suspects implicated in the

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crimes; purposely ignored material evidence; andfabricated false evidence against McDonough.

346. The record facts prove that in doing so, TreySmith purposely took a simple case of readilyprovable serious AB forgery that could have beensuccessfully prosecuted at relatively minor expenseand transformed it into one of the most shameful,incredibly convoluted, farcical and costlyinvestigations and prosecutions of an innocentperson for the noncriminal act of entering data onauthenticated AAB.

347. The record facts prove Trey Smith did so inconspiracy with all other defendants.

348. Specifically, the record facts prove that TreySmith: fabricated false testimony that he intended toand did present before a Grand Jury and trial juriesto prosecute and convict McDonough; ignored, failedto obtain or effectively buried testimonial anddocumentary evidence that was and would have beensufficient to convict the guilty Dem C/O andprevented McDonough’s scapegoat prosecution; giveDem C/O and others immunity, promises of noprosecution and extraordinarily favorable treatmentto not tell the truth because it would have led to theconviction of the guilty Dem C/ O and preventedMcDonough’s scapegoat prosecution; took action tocover-up the nature and extent of the AB forgerycommitted and enable those crimes to be committedin the future by Dem C/O as they had been fordecades; and took action to protect the guilty DemC/O from any meaningful prosecution throughout.

349. The record facts prove that Trey Smith andOgden purposely ignored and failed to obtain readily

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available evidence that would have been sufficient toconvict McGrath, Brown and McInerney, preventedthe scapegoat prosecution and likely led to thediscovery of other evidence sufficient to convict allthe guilty Dem C/O, including the testimony ofDeFiglio, Daniel, DeFabio, Petit, Tangredi, Suozzo,Martiniano and Renna.

350. The record facts show that Trey Smith couldnot suppress all of the overwhelming evidenceagainst McInerney, Brown, DeFiglio, Renna andothers or prosecute McDonough for the crimes theycommitted so he simply ignored it, told supervisoryNYSP that they could not be prosecuted and boldlyembarked on the fabrication and suppression ofevidence to scapegoat prosecute McDonough forfalsely alleged acts that are not even crimes as amatter of law.

351. The audacity of the actions of the defendantsalso proves their conspiracy.

XVIII. Trey Smith Did Not Obtain or IgnoredEvidence of Dem C/O Guilt, Targeted

McDonough for Prosecution and SoughtMcDonough’s Incrimination.

352. The conduct of Trey Smith, Ogden, McNallyand others throughout the case is direct andcircumstantial evidence of the scapegoat prosecution,especially when the actions Trey Smith took to notprosecute any Dem C/O for the AB forgery thatsubstantial irrefutable evidence proved theycommitted is juxtaposed with actions he took toprosecute McDonough for the non-criminal acts hedid not commit, as proven by the record facts,

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including his own voluminous, memos, e-mails andrecords.

353. The rub is self-evident: If Smith properlyinvestigated and prosecuted the matter, all the DemC/O would have been convicted and McDonoughwould not have been indicted.

354. Therefore, Trey Smith purposely did notobtain evidence and feigned mistake, ignorance orlack of for not doing so.

355. Trey Smith did not prosecute any Dem C/Ountil forced by action of McDonough, supervisoryNYSP and FBI to ostensibly prosecute them andthen he did not do so meaningfully.

356. Trey Smith never prosecuted any Dem C/O forthe irrefutable perjury they all blatantly committed,especially Brown, McGrath, O’Malley, McInerneyand Renna.

357. Trey Smith never prosecuted any of the DemC/O for their conspiracy to commit the AB forgery (asalleged in Ogden’s DNA application) and none of theDem C/O would admit they acted in conspiracy evenafter their ostensible prosecutions were forced byMcDonough, except Brown who finally did at trial,but only to recant it the next morning.

358. The reason is obvious: If Trey Smith pursuedconspiracy charges or any Dem C/O admitted it, allthe guilty Dem C/O would have been convicted andMcDonough exonerated.

359. Also, if any of the Dem C/O admitted theirconspiracy, even after ostensibly prosecuted or givenimmunity, their political careers would be over, butmore importantly, it would have been an admission

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of the conspiratorial prosecution for which theywould be liable.

360. In any case, all the Dem C/O admitted thatMcDonough did not act in conspiracy with them tocommit the AB forgery.

361. The record facts also prove that Trey Smithand Ogden did not act reasonably in theinvestigation and prosecution of McDonough,especially in their failure to ask Suozzo, DeFiglio,McGrath, McInerney, Renna, McDonough and otherkey witnesses basic questions or interview Renna,Martiniano, Daniel, DeFabio, Petit, Tangredi andothers, when doing so would have led to theconviction of McGrath, Brown and McInerney andexoneration of McDonough.

362. To the contrary, the record facts prove thatTrey Smith and Ogden took action so McGrath,McInerney, Brown, O’Malley, Robillard and otherswould not talk and/or tell the truth.

363. Trey Smith also ignored and did not obtainreadily available evidence sufficient to convictMcGrath, Brown, McInerney and others throughouthis investigation.

A. McInerney Not Identified Because VotersShowed 20-Year-Old Photograph.

364. Trey Smith had the NYSP show voters a 20-year-old “mugshot” of McInerney that did not evengrossly accurately depict his facial or physicalappearance in September 2009. That photographused for identification purposes is incorporatedherein by reference.

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365. Therefore, McInerney was never identified bythe voters.

B. Brown, Dan Brown or Others Not IdentifiedNo Photographs Shown to Voters.

366. Trey Smith never showed any voter aphotograph of Brown, Dan Brown or other Dem C/Oknown to have been involved in the solicitation ofAAB.

367. Therefore, those Dem C/O were neveridentified by the voters.

C. Trey Smith Did Not Obtain Testimony andForged AB Documents of Daniel, DeFabio, Petit

and Tangredi that Would Have ConvictedBrown.

368. The NYSP questioned every WFP voter forwhom a relevant AB was filed except David Danielalthough Brown testified falsely about his forged ABdocuments in Lambertsen.

369. Daniel was the only one of about fifty (50)WFP voters never questioned

370. Trey Smith never questioned DeFabio, Petit orTangredi or obtained their AB that Brown forged andfiled at the same time as the forged Daniel ABdocuments.

371. The irrefutable testimony and forged ABdocuments of Daniel, DeFabio, Petit and Tangrediwas readily available and alone would have beensufficient to convict Brown.

372. Therefore, Trey Smith should have obtainedand followed the testimony and forged AB documentsof Daniel, DeFabio, Petit and Tangredi in hisinvestigation, but he did not,

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373. Additionally, if Brown was prosecuted and histruthful cooperation required, he would havedisclosed other evidence sufficient to convict all theguilty Dem C/O.

374. Thus, it is clear that Trey Smith purposely didnot obtain that evidence.

375. The NYSP easily obtained that evidence(except the testimony of decedent Daniel) when Sr.Inv. O’Brien directed an independent investigation in2011 and forced Trey Smith to at least ostensiblyprosecute Brown.

D. Trey Smith Did Not Obtain Suozzo’sTestimony and Past Forged AB Documents That

Would Have Convicted McInerney.376. As stated, even though Suozzo was questioned

during Trey Smith’s investigation, he was not askedbasic questions that would have elicited histestimony that alone would have been sufficient toconvict McInerney for forging his AB documents in2007, 2008 and 2009. Copies of Suozzo’s November2009 deposition (obtained at the direction of TreySmith) and June 2011 depositions (obtained at thedirection of supervisory NYSP without Trey Smith’sprior knowledge), are attached as Exhibit B andincorporated herein by reference.

377. For example, Suozzo was not asked aboutMcInerney, whether anyone enrolled him in the WFPor whether anyone asked him about AB voting(McInerney had) even though the NYSP asked abouthis registration card and 2009 AAB.

378. Suozzo was the only WFP voter not asked suchbasic questions when interviewed.

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379. Trey Smith also failed to discover or recordthat Suozzo’s 2007, 2008 and 2009 AB documentswere forged in the same handwriting; i.e.McInerney’s.

380. Suozzo’s irrefutable testimony and forged ABdocuments were readily available.

381. In fact, as discussed below, Trey Smithspecifically ignored evidence of McInerney’s 2008 and2007 AB forgery when Bugbee provided it to him in2010 and again when McDonough did so in 2011.

382. As discussed below, the NYSP easily obtainedthe testimony and forged AB documents of Suozzoand about fifty (50) other voters that was sufficientto convict McInerney for hundreds of AB forgeriesand other crimes he committed in 2009, 2008 and2007 when Sr. Inv. O’Brien directed an independentinvestigation in 2011.

383. Therefore, Trey Smith should have obtainedand followed Suozzo’s testimony and forged ABdocuments that would have been sufficient to convictMcInerney, but he did not.

384. Trey Smith also should have obtained andfollowed the testimony and forged AB documents ofthose many other voters for whom McInerney forgedAB documents in 2009, 2008 and 2007 that wouldhave been sufficient to convict McInerney, but he didnot.

385. Additionally, if McInerney was prosecuted andhis truthful cooperation required, he would havedisclosed other evidence sufficient to convict all theguilty Dem C/O.

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386. The fact that Trey Smith should have obtainedevidence sufficient to convict McInerney from Suozzoand many other voters prior to November 2009cannot be contested.

387. All Trey Smith had to do was to have askedSuozzo one simple question: Did you ever talk withanyone about registering in the WFP or voting byAB?

388. Thus, it is clear that Trey Smith purposely didnot obtain that evidence because he did not want toconvict McInerney or other Dem C/O who committedthe AB forgery.

389. It is also clear that Trey Smith did not believehis own prosecution theory because, if he did, theNYSP investigators would have asked Suozzo suchbasic questions to obtain his testimony that wouldhave convicted McInerney.

390. However, Suozzo’s scant November 2009deposition is further proof of the scapegoatprosecution because the obvious intended falseimplication of the absence of those facts is that hehad no contact with any Dem C/O and, therefore, hisAB documents must have been forged in the BOE, Tosupport the scapegoat prosecution

391. In fact, however, McInerney enrolled Suozzoin the WFP, talked with him about AB voting andforged his AB documents in 2009, 2008 and 2007.

392. If Trey Smith had no knowledge aboutMcInerney’s past dealings with Suozzo or trulybelieved McDonough forged AB documents in theBOE, he would have asked Suozzo and all otherwitnesses such basic questions, but he did not.

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393. In any event, Trey Smith knew that: Suozzolived in a private residence near McInerney;McInerney was prolific at obtaining AB; Suozzo hadno contact with any other Dem C/O who solicitedAAB on September 12, 2009; McInerney was ABAgent on Suozzo’s forged AAB; and Suozzo’s AB wasforged.

394. Also, DeFiglio told Trey Smith on or aboutOctober 2009 that McInerney and Brown committedthe AB forgery.

395. Still, Trey Smith never asked Suozzo suchsimple questions about McInerney.

396. Thus, his failure to do so shows he must haveknown it would have led to evidence sufficient toconvict McInerney, debunked the prosecution theoryand prevented McDonough’s scapegoat prosecution,

397. Therefore, the only reasonable inference isthat Trey Smith knew from the conspiracy, likelythrough McNally, that it would have led to theconviction of McInerney for hundreds of ABdocument forgeries in 2009, 2008 and 2007, theconviction of all the other Dem C/O that committedthe 2009 AB forgery and the exoneration ofMcDonough.

398. Moreover, McInerney has very distinctivehandwriting and his unmasked print was onhundreds of AB documents filed in numerous 2007and 2008 elections.

399. Also, Bugbee, DeFiglio and others told TreySmith in 2009 and 2010 that it was obvious from the2009 AB documents and primary role McInerneyplayed in obtaining AB votes in 2007 and 2008, thatMcInerney committed the AB forgery.

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400. Still, Trey Smith did not inspect or have thoseAB documents examined by a handwriting expert atanytime.

401. To the contrary, as stated below, when Bugbeeand McDonough disclosed some of those ABdocuments to Trey Smith in 2010 and 2011 asevidence of McInerney’s forgery of 2009 ABdocuments, he rejected that evidence out of hand.

402. However, when McDonough provided thosesame AB documents to supervisory NYSP in 2011 itled to the discovery of overwhelming evidencesufficient to convict McInerney for hundreds of ABdocument forgeries he committed in 2007, 2008 and2009.

403. It is not plausible that Trey Smith failed toobtain that evidence other than intentionallybecause he needed only to have inspected the ABdocuments, asked Suozzo and other voters if theyhad contact with anyone about enrolling in the WFPor AB voting, ask DeFiglio and other Dem C/Oinvolved in the solicitation of AAB on Sept. 12, 2009basic questions about McInerney, had the Suozzoand other AB documents examined by a FBI or policeForensic Document Examiner (“FDE”) or otherwiseconducted a proper investigation.

404. Of course, if McInerney was meaningfullyprosecuted he likely would have fully cooperatedagainst all his cohorts, as warned.

405. There is no other plausible explanation for theactions of Trey Smith and Ogden but theconspiratorial scapegoat prosecution, especiallybecause they consistently failed to obtain or ignoredevidence from voters, witnesses and cooperating

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defendants that would have been sufficient to convictall the guilty Dem C/O throughout the case.

406. They also consistently sought to have BOEemployees, WFP operatives and Dem C/Oincriminate McDonough by asking questions aboutwhether he was involved in the AB forgery at thesame time that they did not ask them basic questionsabout McInerney, Brown and others that would haveled to his exoneration and the conviction of the guiltyDem C/O.

407. The consistent failure of Trey Smith to obtainreadily available irrefutable evidence sufficient toconvict McGrath, McInerney, Brown and the otherguilty Dem C/O itself proves the conspiratorialprosecution, i.e. he knew from the relationshipsbetween himself, McGrath, Brown, McInerney,McInerney’s attorney, McNally and/or others that ifMcDonough, Suozzo, DeFiglio, O’Malley, Renna,Martiniano, Daniel, DeFabio, Petit or Tangredi wereproperly questioned they would have disclosedevidence that would have convicted the guilty DemC/O and prevented the scapegoat prosecution ofMcDonough.

408. The same is true concerning Trey Smith’sobvious failure to require DeFiglio, McGrath,O’Malley, McInerney, Brown or Renna to providecomplete truthful information as required by theirpurported Cooperation Agreements, as discussed.

E. Couch, Caird and JWelch Got Attorneys andRefused to Talk Without Immunity. Trey SmithGave Couch, Caird and JWelch Immunity andSought Incrimination of McDonough Although

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No Reason to Suspect He was Involved inCrimes

409. JWelch and Caird, who gave Brownpermission to falsely name them as AB Agents onAAB, retained attorneys and refused to talk withTrey Smith without immunity.

410. Couch, who filed AB that McInerney forged atthe request of LoPorto, retained an attorney andrefused to talk with Trey Smith without immunity.

411. On or about October and November 2009, TreySmith gave Couch and Caird promises of non-prosecution in return only for their purportedtruthful testimony.

412. Couch and Caird gave the NYSP a swornwritten deposition on October 22, 2009 andNovember 4, 2009, respectively. Their depositionsare incorporated herein by reference.

413. Coach and Caird denied committing the ABforgery or any crimes.

414. Upon information and belief, Trey Smith onone or more occasions interviewed Couch and Cairdand sought to have them incriminate McDonough inthe AB forgery,

415. It is also clear from their depositions that TreySmith sought any incrimination of McDonoughpossible but Couch and Caird could not do sotruthfully and did not to do so falsely.

416. Still, the innocuous comments McDonoughmade at LoPorto’s Restaurant were recorded in theirdepositions for the false implication of incrimination,as stated above.

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417. On or about December 6, 2010, Trey Smithgave JWelch immunity in return only for hispurported truthful testimony pursuant to anexecuted cooperation agreement.

418. JWelch denied committing the AB forgery orany crimes.

419. Trey Smith did not obtain a sworn writtendeposition from JWelch.

420. Upon information and belief, Trey Smith didnot obtain a written deposition from JWelch becausehe could only have incriminated Brown.

421. Otherwise, the WFP operatives directlyincriminated only Brown and LoPorto.

422. In their depositions, Couch and Cairdadmitted that on September 14, 2009, Brown askedfor permission to falsely write their names as ABAgent on AAB and they agreed.

423. In her deposition, Couch also admitted thatLoPorto handed her a newspaper folded over AB andasked her to file them but forget she got them fromhim. She stated LoPorto did not tell her that the ABwere forged but acted furtively about the matter.

424. Couch admitted that she delivered AB to theBOE on September 15, 2009 at LoPorto’s request,but again claimed that she did not know they wereforged.

425. Couch and Caird also admitted that atLoPorto’s Restaurant on or about September 24,2009, Brown and Dan Brown asked them to issue aPress Release accusing Mirch of making false claimsof voter fraud, Brown acted nervous and guilty andBrown said “they were there,” “it was not as bad as it

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appeared “ when confronted about the AB forgery byCouch and McDonough.

426. JWelch testified at trial generally consistentlywith the above facts.

427. Trey Smith accepted the denials of guilt fromthe WFP operatives without properly questioningthem and obtaining all their truthful knowledgeabout the AB fraud.

F. Brown, Dan Brown, McInerney, LoPorto,Campana, Galuski and Aldrich Got Attorneys

and Refused to Talk Without Immunity.428. McGrath, Brown, Dan Brown, McInerney,

LoPorto, Galuski, Campana and Aldrich who wereimplicated in the AB forgery or material witnesses tothe crimes, retained attorneys and refused to talk toTrey Smith or NYSP without immunity.

G. Trey Smith Did Not Give Brown, Dan Brownand McInerney Immunity. Their Testimony

Would Have Had to be Truthful and ConvictGuilty Dem C/O.

429. Upon information and belief, Trey Smith couldnot give Brown, Dan Brown or McInerney immunitybecause given the known and easily discoverableevidence, they would have had to give substantiallytruthful testimony that would have convicted theguilty Dem C/O and prevented the scapegoatprosecution of McDonough.

430. Instead, Trey Smith: (a) made them targets sothey could assert their right to remain silent; (b) toldBrown and McInerney that they would not beprosecuted; and (c) told the supervisory NYSP theblatant lie that they could not be prosecuted because

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their was insufficient evidence to corroborate anyaccomplice testimony, including that of any voterdeemed to be complicit in the crimes as a matter oflaw, as discussed herein.

431. Upon information and belief, Trey Smith alsotold Dan Brown in 2009, 2010 and 2011 that hewould not be prosecuted and he was not seen as aprimary target by anyone.

H. Trey Smith Gave Aldrich Promise of NoProsecution and Sought Incrimination of

McDonough Alhough No Reason to Suspect Hewas Involved in Crimes.

432. Aldrich, a close associate of LoPorto whoassisted McInerney and Dan Brown in getting votersto sign AAB on September 12, 2009 and was namedthe AB Agent on nineteen (19) falsified or forgedAAB for which AB were forged by AB McInerney andfiled by Couch at LoPorto’s request, retained anattorney and refused to talk to Trey Smith withoutimmunity.

433. On or prior to November 13, 2009, Trey Smithgave Aldrich a promise of non-prosecution in returnonly for his purported truthful testimony.

434. On November 13, 2009, Aldrich gave theNYSP a sworn written deposition. His deposition isincorporated herein by reference.

435. Aldrich denied committing the AB forgery orany crimes.

436. Trey Smith accepted Aldrich’s denial of guiltwithout properly questioning him and obtaining allof his truthful knowledge about the AB fraud.

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437. Upon information and belief, Trey Smith onone or more occasions interviewed Aldrich andsought to have him incriminate McDonough in theAB forgery.

438. It is also clear from his deposition that TreySmith sought any incrimination of McDonoughpossible, but Aldrich could not do so truthfully anddid not to do so falsely.

I. LoPorto, Galuski and Campana Refused toFalsely Incriminate McDonough.

439. Upon information and belief, on occasions onor about October or November 2009 and thereafter,Trey Smith sought to have LoPorto, Galuski andCampana incriminate McDonough for immunity butthey could not do so truthfully and did not to do sofalsely.

440. Upon information and belief, Trey Smithconsidered LoPorto, Galuski and Campana to haveplayed minor, if any, culpable roles in the ABforgery.

441. Upon information and belief, Trey Smithintended to scapegoat prosecute LoPorto if he couldnot coerce McDonough into pleading guilty beforeindictment because he made clear his intent todefend his innocence and expose the scapegoatprosecution if indicted.

J. Leonard and Mason Refused to Gave WrittenDepositions

442. Richard Mason, friend and campaign helper ofMcGrath, refused to talk to the NYSP about thematter even though he testified at Lambertsonhearing.

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443. Michael Leonard, a relative and campaignhelper of McGrath, told the NYSP he knew nothingabout the AB forgery and refused or was not asked togive a deposition.

444. Trey Smith accepted Leonard’s word withoutquestioning him about the AB documents he filed in2009 and past years (for the same voters and/or withsimilar Excuses) or taking a written statement fromhim.

K. Donald Cunningham, Louis Schneider andSought Incrimination of McDonough Although

No Reason to Suspect He was Involved inCrimes.

445. City Employees Donald Cunningham andLouis Schneider were interviewed by NYSP and gavesworn written depositions on November 24, 2009.Their depositions are incorporated herein byreference.

446. The NYSP questioned those two men aboutMcDonough to obtain any evidence that mightincriminate him, specifically with respect to anydealings with McInerney.

L. Trey Smith Asked BOE Employees aboutMcDonough and AB Process. Trey Smith Sought

Incrimination of McDonough Although NoReason to Suspect He was Involved in Crimes.

447. On or about November 10, 2009, Trey Smithinterviewed most BOE employees.

448. All BOE employees were interviewed at theBOE, except McDonough.

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449. Trey Smith did not give Miranda warnings toany BOE employee or take the sworn deposition ofany BOE employee, except McDonough.

450. Upon information and belief, Trey Smith didnot take depositions of the other BOE employees soO’Malley did not have to give a sworn statementbecause: O’Malley already got the word and joinedthe conspiracy to prosecute McDonough; O’Malleywould give fabricated false testimony againstMcDonough only if needed because he was nervousby nature; and O’Malley’s role at the time was to notdisclose the truth that would directly incriminateMcInerney, Brown and McGrath in the AB forgeryand be sufficient to convict Brown for his perjurybefore the State court and Brown and McGrath laterfor perjury before the Grand Jury.

451. Upon information and belief, Trey Smithpurposely did not take a deposition from any BOEemployee except McDonough because it would haverequired O’Malley to give a false statement infurtherance of the conspiratorial prosecution andexposed the scheme at that time.

452. The record facts prove that O’Malley’s role atthat time was to not talk prior to Grand Jury, butgive fabricated false testimony as needed at GrandJury and trial to initiate and continue the scapegoatprosecution.

453. All of the BOE employees denied anyknowledge of the AB forgery.

454. Commissioner Bugbee and other employees ofthe BOE told Trey Smith that it was lawful BOEpractice to: (a) assist voters and their agents bywriting data that the voters gave onto AAB so it

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could be filed; and (b) release AB to voters, voters’agents or persons designated by a voter or a voter’sagent if an AB Agent is named on an AAB, even ifnot the AB Agent.

M. O’Malley Did Not Tell the Truth That WouldHave Incriminated Brown and McInerney But

Did Not Falsely Incriminate McDonough in2009.

455. O’Malley was also a political operative withstrong allegiance to Chair Wade known to havesolicited AB in his town on behalf of Democrats(although on a smaller scale than McInerney) andwas appointed to his BOE position by Chair Wade.

456. It was discovered by McDonough during thedefense of the scapegoat prosecution that O’Malleyhad filed AAB for certain voters from the Town ofHoosick over the years, including an unusually highnumber in 2009 who had the same excuse of being“home recovering from a stroke” for the same election.

457. O’Malley was a member of the Town Boardwhen Trey Smith was appointed its attorney throughthe efforts of a mutual friend and past politicalassociate. He also had direct and indirect associationwith McNally and McInerney.

458. When questioned by Trey Smith and/or Ogdenin 2009 or 2010 he did not disclose those facts thatwould have directly incriminated Brown andMcGrath

459. Significantly, when O’Malley was questionedby Trey Smith in the fall of 2009, he did not disclosethe truth about what happened on September 14,2009; i.e. he sat across a desk from Brown inMcDonough’s office and wrote Excuses on eight (8)

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AAB that Brown said voters gave while McDonoughhelped McGrath; and, later that day was withMcDonough when he delivered all the AB releasedon the AAB Brown filed which were forged and thenfiled the next day by Couch for LoPorto.

460. Also, O’Malley did not at that time falselyclaim that he heard McDonough tell McInerney thathe “had two HVCC students” who “owed him afavor”, as he did later.

461. O’Malley did not at that time falsely reportthat McDonough called him into his office and madehim write false Excuses on AAB when no one elsewas present, as he did later.

462. The fact that O’Malley remained silent insteadof then disclosing the truth that would haveincriminated Brown and McInerney or made falseallegations to incriminate McDonough, as well as thekey role he later played in falsely testifying in theGrand Jury and trials, proves that he joined theconspiracy to initiate and continue the scapegoatprosecution at its inception or soon thereafter, as dohis other acts and testimony, as discussed,

463. O’Malley did not give a deposition or confirmwhat happened in McDonough’s office on September14, 2009 when questioned again by Ogden inDecember 2009, specifically about walking toMcInerney’s office with McDonough.

464. Furthermore, O’Malley admitted at trial thaton December 16, 2009 he lied to Ogden about whathappened when McDonough gave McInerney the ABreleased on the AAB Brown filed on September 14,2009.

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465. Even after McDonough told Ogden thatO’Malley was with him when he gave McInerney theAB released on the AAB Brown filed on September 4,2009, O’Malley did not give a written statementwhen he falsely told Ogden on that date that he “didrecall walking with McDonough to the City Clerk’soffice ... could not be any more specific ...he waited inthe lobby and could not remember if McDonough hadan envelope with him.”

466. Trey Smith never asked O’Malley about whathappened in McDonough’s office on that date orabout AAB or the actions of Brown or McGrathconcerning the filing of AAB.

467. O’Malley allegedly told Trey Smith and theNYSP several times in 2009 that he did not have anyknowledge about the AB forgery.

468. At trial, Trey Smith asserted that O’Malleydeclined to give a written statement.

469. In any event, O’Malley was a key participantin the scapegoat prosecution because he did not atanytime tell the simple truth about what happenedon Sept 14, 2009 that would have proven Brown’scrimes and perjury, proven McGrath’s falseaccusations and perjury and prevented the scapegoatprosecution but later testified falsely to protectMcInerney, Brown and McGrath and initiate thescapegoat prosecution against McDonough.

470. Instead, O’Malley lied about everything andfalsely accused McDonough so that he did notincriminate Brown or McGrath.

471. Later, O’Malley also unilaterally destroyedAAB and AB filed in 2007 elections after McDonoughand Bugbee began to discover and disclose those that

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McInerney and Renna forged in past elections to theFBI and supervisory NYSP as evidence of their 2009crimes. A June 10, 2011 email from Trey Smith toO’Malley’s attorney in which he adds: “of course, thiscould fail into a known pattern of doing as he is told”,is incorporated herein by reference

N. McDonough Twice Questioned at NYSPStation After Miranda Warnings.

472. In contrast, Trey Smith had Ogden interviewMcDonough twice at the NYSP station, gave himMiranda warnings and took a sworn writtendeposition on both occasions, i.e. November 19, 2009and December 7, 2009.

473. Ogden directed the interviews and asked himabout McInerney, focused his questioning on forgedAB and McDonough’s delivery of AB to McInerney onSeptember 14, 2009 but did not ask him anythingabout AAB or the filing of AAB by McGrath, Brown,McInerney, DeFiglio or Renna or the AAB Brownfiled on Sept. 14, 2009; or, the completion of AAB forMcGrath, Brown or any other voter agent.

474. He was cooperative and gave two writtendepositions.

475. McDonough disclosed that on September 14,2009 he took the AB issued on the AAB Brown filedthat day to McInerney at Brown’s request andO’Malley accompanied him.

476. McInerney asked McDonough several times inthe fall of 2009 not to talk to the NYSP or tell themthat he got the AB released on the AAB Brown filedon September 14, 2009.

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477. At the same time, Chair Wade toldMcDonough that he should get an attorney and nottalk to the NYSP.

478. Nonetheless, McDonough remained acooperative witness, would have testified truthfully ifcalled as a witness and was not dissuaded fromtalking to the NYSP.

479. At trial, O’Malley testified that he is a nervousperson afraid of his own shadow.

480. Therefore, it is also obvious by his conductalone that he participated in the conspiracy from theinception or soon thereafter and throughout theprosecution, as discussed.

O. Martiniano and Renna Were NotInterviewed. Their Testimony Would Have Ledto Conviction of McInerney, Brown and Likely

All Guilty Dem C/O.

481. Trey Smith and Ogden knew that Martinianowas involved in the AB forgery or a material witnessand close associate of LoPorto, but not a supporter ofMcInerney or Brown.

482. Trey Smith knew that Renna was a longtimeoperative, close associate of McInerney and involvedin the AB forgery or material witnesses to thecrimes.

483. Of course, McInerney and Brown knew thatMartiniano and Renna had personal knowledge offacts that could directly incriminate them in thesubject crimes and that they would likely be arrestedand/or prosecuted if either one talked to the NYSP.

485. Additionally, Martiniano would have providedtestimony about the admissions Brown and

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McInerney made to him that would have preventedthe scapegoat prosecution.

486. However, Trey Smith did not interviewMartiniano or Renna in 2009 or 2010.

487. Martiniano and Renna were the only Dem C/Oinvolved in the effort to obtain signed AAB that werenot questioned by Trey Smith or the NYSP duringhis investigation.

P. Trey Smith Ignored Forged AAB BugbeeProvided that Alone Was Sufficient to Lead tothe Conviction of McInerney for AB forgery in

2009, 2008 and 2007.

488. In 2009, Bugbee and BOE employees MarySweeney and Bonnie Becker told Trey Smith and/orOgden that there was no reason to believeMcDonough forged any AB document and, inresponse, he implied that they were acting incomplicity with him.

489. In 2009, Bugbee and other BOE employeestold Trey Smith and/or Ogden that it was lawfulBOE practice to: (1) assist voters/agents by writingdata voters gave onto AAB so it could be filed; and (2)release AB to voters/agents, even if not an AB Agent.

490. In 2009 and/or 2010, Bugbee told Trey Smithand/or Ogden that it was obvious from the 2009forged AB documents and voter statements thatMcGrath, McInerney and other Dem C/O committedthe crimes.

491. On or about November 15, 2010, in response toa voter’s complaint of forgery and illegal voting atthe polls in 2009, Bugbee discovered and provided toTrey Smith and the NYSP about twenty (20) AAB

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filed in 2007 and 2008 elections that appeared tohave been forged in the same unique handwriting,which he told them he then knew to be McInerney’sprint. Those 2007 and 2008 AAB are incorporatedherein by reference.

492. The BOE records showed that it was actuallyher voter registration card and 2007/2008 AAB thatwere forged.

493. At the time, Bugbee told Trey Smith that theunique handwriting on the AAB was that ofMcInerney (“its Mac”), and requested proper criminalaction.

494. Upon information and belief, Trey Smith toldBugbee that the NYSP were not interested in thematter and he had no authority to prosecute anypast election crimes.

495. Thus, he avoided obtaining that evidence ofMcInerney’s past AB forgery relevant to the 2009 ABforgery that would have led to McDonough’sexoneration. I

496. If followed, that evidence would have led tovoter testimony sufficient to convict McInerney forAB forgery he committed in 2007, 2008 and 2009.

497. In fact, those documents showed thatMcInerney also filed AAB for the same voters inmore than one year; i.e. he had a so-called “stable” ofvoters for whom he forged AB.

498. Trey Smith and Ogden ignored that evidenceand did not obtain the testimony of any of thosevoters that would have led to McInerney’s conviction.

499. Later in 2010, McDonough gave Trey Smiththose and/or other 2007 and 2008 AAB that appeared

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to have been partially or entirely written in thehandwriting of McInerney or Renna also asadditional proof of his AB forgery in 2009. Those2007 and 2008 AAB, which McDonough also laterprovided to the supervisory NYSP, are incorporatedherein by reference.

500. Trey Smith and Ogden again ignored thosepast AB documents that would have led to thediscovery of overwhelming evidence sufficient toconvict McInerney for AB forgery he committed in2007, 2008 and 2009 on the basis that he had noauthority to pursue those crimes and the NYSP were“not interested” in the evidence.

501. Those documents as well as the testimony ofvoters to prove McInerney’s guilt in 2009 and pastyears could have been easily obtained byrudimentary investigation.

502. Trey Smith also could have had the scope ofhis purported authority perfunctorily expanded as helater did to protect McInerney from federal or stateprosecution for those crimes when the supervisoryNYSP acted on that evidence.

Q. Renna Tampered with DeFiglio forMcInerney and Brown with Impunity,

503. On or about August 2010, Renna calledDeFiglio and told him that McInerney wanted him toknow that if he did not talk to the NYSP again itwould all be over soon and “they” would get him anattorney and “it would all go away.”

504. Renna also told DeFiglio that “they” wantedhim to know that Brown’s family had a job lined-upfor him in Vermont and he should move there,

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505. DeFiglio disclosed the tampering and theNYSP arranged to record a telephone conversationbut Renna did not return DeFiglio’s calls or talk tohim on the telephone again.

506. Trey Smith did not arrest or prosecute Rennafor the witness tampering and never sought toquestion Renna about it, the AB forgery or hisparticipation in gathering AAB or AB.

507. If obtained, Renna’s truthful testimony wouldhave been sufficiently corroborated by thesubstantial evidence already obtained and aloneenough to convict McInerney and therefore likelylead to the conviction of all other guilty Dem C/O.

508. Those facts further corroborated the guilt ofMcInerney and Renna, but it was ignored by TreySmith and Ogden relative to any prosecution againstthem.

509. The fact that McInerney, Brown and Rennahad the audacity to tamper with DeFiglio during theinvestigation further proves they were in conspiracywith the prosecutor.

XIX. Trey Smith Adopted PurportedNonsensical Prosecution Theory Debunked by

Common Sense, Evidence and DeFiglio inOctober/November 2009.

510. The record facts prove the following.

511. Almost immediately after his appointment(October 2009) Trey Smith began to seek evidenceupon which to base and initiate a prosecution ofMcDonough.

512. Thereafter, throughout his investigation, TreySmith and Ogden meticulously analyzed the

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testimonial and documentary obtained in effort tofind any theoretical basis for the prosecution ofMcDonough, however, nefarious, malicious and silly.

513. On or before November 6, 2009, Trey Smithand Ogden purportedly adopted a patentlypreposterous theory for the prosecution ofMcDonough that no objectively reasonableprosecutor would have considered, adopted orpursued based on the evidence.

514. Then, Trey Smith and Ogden questionedwitnesses to obtain any evidence in support of thatpurported theory of prosecution, fabricated falseevidence against McDonough to initiate and continuehis prosecution based on it and blindly pursued hisprosecution without probable cause even though itwas debunked by DeFiglio, disproved by theevidence, contrary to common sense and absent ofprobable cause.

515. However, it is clear that the theory wasmerely a ruse to give an appearance that Trey Smithwas supremely incompetent or misguided in theexercise of his discretion and simply initiated andcontinued an ostensibly proper but weak prosecutionof McDonough.

516. In simplest terms, the preposterousprosecution theory was that Dem C/O defraudednumerous voters into signing AAB so they could filethem to obtain and falsely vote AB for Democratcandidates, regardless of whether they were eligibleto vote by AB or would do so, which they had to filein AB envelopes they also had to forge, but purposelydid not enter false AB Agents and Excuses on any ofthose AAB they knew could not be filed for release of

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the AB unless completed, so that McDonough coulddo it in “the finishing process” at his BOE “forgeryfactory” under the watchful eyes of partisan opposingpolitical Party employees.

517. The record facts show that the purportedprosecution theory was pure nonsense and known byTrey Smith and Ogden all along to be absurd.

518. No Dem C/O ever alleged that they purposelydid not complete the AAB they had voters sign toobtain and vote their AB so that McDonough couldfalsely complete them, even after he forced theirostensible prosecutions and Trey Smith gave themimmunity or favorable dispositions to incriminatehim.

519. To the contrary, Brown, McInerney and othersalso admitted at trial that the theory was wrong.

520. In any case, there never was any evidence,allegation or reasonable suspicion that McDonoughor anyone at the BOE forged any electionsdocuments or operated a “forgery factory” solely forthe “finishing” of incomplete AAB solicited by DemC/O to forge AB.

521. Moreover, Trey Smith and Ogden knew thatthe object crime was the false voting of AB and therelated falsification or forgery of AAB and ABenvelopes were integral to them.

522. That fact could not have been missed by anyreasonable officer investigating this matter. Thus,the entry of delivery agent names and excuses onAAB should never have been on the prosecutionagenda at anytime, especially because almost all ofthe AAB in question were actually or ostensiblysigned by the voters.

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523. Furthermore, it was common knowledge byNovember 2009 that the AB forgery was committedby Dem C/O, primarily McGrath, Brown andMcInerney and their helpers.

524. Nonetheless, Trey Smith obtainedMcDonough’s indictment and sought to convict himby conspiratorially fabricating false testimony insupport of that theory even though after it wasspecifically debunked by DeFiglio on or beforeNovember 6, 2009, as discussed.

525. Again, at the same time, Trey Smith ignored,failed to gather and/or follow the evidence andinvestigative leads sufficient to convict the Dem C/Owho defrauded voters, forged AB votes, forged votersignatures and falsely filed AB documents.

526. Later, Trey Smith conspiratorially fabricatedthe false testimony of McGrath, Brown, O’Malley,Ogden, McInerney, Renna, Ogden and Robillard toinitiate and continue it.

527. Furthermore, under State law, the innocuousentry of data onto an AAB after it is ostensiblysigned by the voter has nothing to do with itsauthenticity and is not forgery.

528. Clearly, therefore, the theory was adoptedsolely to obtain the primary objectives of theconspiratorial scapegoat prosecution by shifting thefocus of any investigation and prosecution away fromthe conspiratorial AB forgery committed by the DemC/O onto the alleged non-criminal act of enteringfalse information on authenticated and ostensiblyauthenticated AAB (signed) allegedly committed byone clerical person acting alone.

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XX. Trey Smith Asked DeFiglio aboutMcDonough. DeFiglio Admits AB Forgery and

Debunks Prosecution Theory. Trey SmithBuried Detailed Facts DeFiglio Disclosed

against McInerney in Handwritten Notes andIgnored Substantial Evidence Against Dem

C/O.

529. On or about October 2009, DeFiglio agreed tocooperate with Trey Smith pro se.

530. Upon information and belief, on or aboutOctober and/or November 2009 and thereafter, TreySmith and/or Ogden interviewed DeFiglio.

531. Trey Smith did not require DeFiglio to enterinto a written cooperation agreement.

532. On or about November 6, 2009, DeFiglio gavea sworn written deposition.

533. However, in essence, only general facts andspeculation about the AB forgery were recorded byTrey Smith and the NYSP in DeFiglio’s deposition.

534. In substance, the following relevantadmissions were recorded in DeFiglio’s deposition:(a) the AB forgery was committed by the Dem C/O aspart of a scheme to falsely vote AB of public housingvoters; (b) Brown and McInerney were the primaryculprits; (c) he assisted McInerney on a few occasionsin September 2009; (d) McInerney had possession ofall the signed but incomplete AAB that wereobtained; and (e) the same scheme of falsely votingAB was perpetrated by DeFiglio, McInerney, Retinaand other Dem C/O for more than 25 years. A copy ofhis deposition is attached as Exhibit C andincorporated herein by reference.

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535. DeFiglio’s deposition contains few specificfacts about the AB forgery and no specificevidentiary facts and admissions about the criminalacts of DeFiglio, McInerney, Brown and the otherDem C/O who he admitted committed the AB forgeryin 2009 and/or twenty-five (25) years prior thereto,including 2008 and 2007 elections.

536. It would appear from his deposition that TreySmith and Ogden did not ask DeFiglio rudimentaryquestions about McInerney, Brown, other Dem C/O,the AB forgery and the 25 year scheme of Dem C/Othat any reasonable investigator would have askedsuch a cooperating perpetrator in order to obtainreadily available evidence.

537. It is obvious that Trey Smith and Ogden didnot ask DeFiglio basic questions that would haveresulted in his disclosure of more evidence againstMcInerney and other Dem C/O.

538. On the other hand, it is clear from DeFiglio’sdeposition that Trey Smith and/or Ogden questionedhim specifically about McDonough and Trey Smith’spurported prosecution theory even though there wasno reason to suspect McDonough was involved in anycrime.

539. It is also clear that Trey Smith and Ogdensought any incrimination of McDonough fromDeFiglio because his rank speculation thatMcDonough “had to know” about the AB forgery isrecorded in his deposition instead of specificevidentiary facts concerning the AB forgerycommitted by McInerney, Brown and/or any otherDem C/O in conspiracy.

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540. DeFiglio’s deposition makes clear that TreySmith and Ogden did not ask him many basicquestions that would have resulted in more evidenceagainst McInerney and others.

541. For example, Trey Smith and Ogden did notelicit from DeFiglio many particular facts about theAB forgery, or 25-year AB forgery scheme despite hisknowledge, willingness and ability to have providedthe same against McInerney and Brown.

542. In fact, Ogden testified at trial that noattempt was made by Trey Smith or the NYSP toobtain any specific evidence from DeFiglio about the2009 or prior AB forgery or the identity of those DemC/O who had committed those when he gave hisstatement or thereafter.

543. In fact, however, only because McDonoughwent to trial, Trey Smith was required to disclose hisown handwritten notes that showed DeFiglio hadactually disclosed substantial detailed evidentiaryfacts about the AB forgery and McInerney on one ormore occasions when interviewed by Trey Smithand/or Ogden on or about October/November 2009.

544. Trey Smith effectively buried that crucialtestimonial in handwritten notes kept in his file anddisclosed as Brady or Rosario material just beforetrial.

545. DeFiglio testified at trial that he wasquestioned by Trey Smith and Ogden but also byTrey Smith alone on one or more occasions.

546. In substance, DeFiglio disclosed to Trey Smithand/or Ogden that: (a) he and Galuski helpedMcInerney fraudulently obtain signed AAB frompublic housing voters before and on September 12,

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2009; (b) they had voters sign incomplete AAB; (c)McInerney or other Dem C/O were going to falselycomplete the AAB that voters signed; (d) heidentified specific voters for whom McInerney orother Dem C/O were going to totally forge an AAB;(e) they were going to falsely complete or forge thoseAAB so that they could obtain and falsely vote AB; (f)he identified those voters who signed AAB that werefalsely completed; and (g) he identified those votersfor whom an AAB was totally forged.

547. Those detailed evidentiary facts directlyincriminated McInerney in the forgery of specific ABdocuments for identified voters on specific dates.

548. More specifically, Trey Smith recorded in hisnotes that DeFiglio disclosed that on severaloccasions before September 10, 2009, he, Galuski andMcInerney sought to have AAB signed by thefollowing identified voters (13) for whom AAB werefalsely completed or forged: (1) Amey; (2) Berrios; (3)Flores; (4) Gonzalez; (5) Ponce; (6) Rouse; (7) A.Santiago; (8) Torres; (9) Vasquez; (10) B. Ward; (11)M. Ward; (12) Washington; and, (13) Welling.

549. Trey Smith also recorded with respect to thoseAAB that DeFiglio: (a) identified five (5) that were“totally forged’; and (b) stated that “it was unspokenthey [the voters] would not get [AB] back.”

550. BOE records show that Aldrich was the namedAB Agent on all of those (13) falsified and forgedAAB and that they were filed at the BOE onSeptember 10, 2009.

551. Nonetheless, McDonough was indicted for theforgery of those (13) AAB that DeFiglio essentially

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admitted McInerney and/or other Dem C/O falsifiedor forged,

552. At trial, McInerney admitted that he does notrecall which one of the other Dem C/O he had filethose AAB but the record facts support the inferencethat it was Dan Brown.

553. Trey Smith also recorded in his notes thatDeFiglio disclosed that again on September 12, 2009,he, Galuski and McInerney sought to have AABsigned by sixteen (16) specifically named voters forwhom AAB were falsely completed or forged.

554. Trey Smith also recorded with respect to those(16) AAB that DeFiglio: (a) identified three (3) thatwere “totally forged’ (because a voter had moved);and (b) stated he “did not know but probably heardsomeone say at meeting a Griswold Heights ‘just getthem to sign [the AABJ”‘ but “does not recall specificinstructions not to fill in the [AB Agent] or [Excuse]fields [on the AAB].”

555. Trey Smith also recorded with respect to thoseAAB that DeFiglio disclosed “McInerney would say ifit appeared a voter moved ... that’s ours”, meaningthat McInerney or another Dem C/O would totallyforge that voter’s AAB and AB.

556. BOE records identify which Dem C/O was thenamed AB Agent on each of those (16) falsified andforged AAB and that they were filed at the BOE onSeptember 12, 2009.

557. McDonough was indicted for the forgeryand/or criminal possession of those (16) AAB thatDeFiglio essentially admitted McInerney and/orother Dem C/O falsified or forged.

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558. Those detailed evidentiary facts were alonesufficient to convict McInerney and corroborated bysubstantial voter testimony and forged ABdocuments.

559. If followed, detailed evidentiary facts wouldhave led to the discovery of other evidence sufficientto convict McInerney, Brown and all the other guiltyDem C/O.

560. However, Trey Smith and Ogden effectivelyburied those detailed evidentiary facts about the ABforgery and McInerney acts and admissions byrecording them in notes which he kept in his filerather in his deposition or a report made part of theNYSP records, reviewed by supervisory NYSP andtimely disclosed to McDonough in pre-trial discovery;contrary to good law enforcement practice and NYSPpolicy. A copy of Trey Smith’s handwritten notes areattached as Exhibit D and incorporated herein byreference.

561. In any case, the detailed facts DeFigliodisclosed in 2009 were not used to prosecuteMcInerney, even after Renna tampered with him forMcInerney and Brown in 2010.

562. The record fact prove that the testimonialevidence DeFiglio disclosed to Trey Smith wascorroborated by substantial voter testimony andforged AB documents that was independentlysufficient to convict Mclnemey. If followed, thatevidence would have led to the discovery of moreevidence sufficient to convict him and all the guiltyDem C/O.

563. DeFiglio testified at trial that he told TreySmith and Ogden in 2009 and 2010, among other

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things, that: (a) the AB fraud was committed by theDem C/O, primarily Mclnemey and Brown; but notby anyone in the BOE; (b) the object crime was thefalse voting of AB; (c) the Dem C/O committed theAB forgery by having voters sign an AAB that theythen completed with false Excuses and AB Agents sothey could obtain and vote an AB for Democrats; (d)Dem C/O knew the AB process and related BOEpractices, especially that AAB had to be completedwith an Excuse and AB Agent to be filed before anAB for a voter could be obtained and voted; and (e)Dem C/O had voters sign but not complete an AAB sothey could write a false Excuse and AB Agent onthem and obtain and falsely vote their AB “the rightway” without risk that the voters were not eligible tovote by AB or would not vote for Democrats.

564. DeFiglio also testified that Trey Smith andOgden asked about their prosecution theory againstMcDonough when they questioned him on or beforeNovember 6, 2009.

565. More significantly, DeFiglio testified thatwhen Trey Smith and Ogden asked him about theirprosecution theory he told them it was wrong andmade no sense.

566. DeFiglio testified that he told Trey Smith andOgden in 2009 and 2010, among other things, that:(a) the AAB and AB were falsified and forged byMcInerney, Brown and the Dem C/O; (b) the objectcrime was AB forgery and the “game” was to getvoters to only sign AAB so they could be falselycompleted and AB obtained and voted “the right way”regardless of whether a voter was eligible to vote byAB; (c) the AB fraud was committed by the Dem C/O

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mainly McInerney and Brown; and, (d) publichousing voters were targeted for AB forgery becausethey would be less likely to know, care or complainabout it.

567. DeFiglio testified that Trey Smith and Ogdenignored what he told them because they “did notwant to hear if and “would not listen. “

568. Even McGrath, McInerney and Brownadmitted at trial that the theory was wrong.

569. Again, it was known by November 2009 andcommon sense dictated that the false completion orforgery of AAB was integral to their false voting ofAB.

570. It was also common knowledge among theDem C/O that the AB forgery was committedprimarily by McInerney, McGrath, J. Brown, D.Brown, DeFiglio and Renna.

571. DeFiglio also testified that he would have toldTrey Smith and Ogden everything he knew about theAB forgery, but “they did not ask’ and “they did notwant to know. “

572. The record facts prove that all of DeFiglio’stestimonial evidence about the AB forgery wascorroborated by substantial testimony and forged ABdocuments and alone sufficient to convict McInerneyand Brown.

XXI. Trey Smith Misled Supervisory NYSPthroughout Investigation with Blatant

Falsehood that McInerney and Brown CouldNot be Prosecuted

573. At the same time, from 2009 to 2011, TreySmith misled supervisory NYSP by telling them the

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blatant falsehood that McInerney and Brown couldnot be prosecuted because under applicable State lawthe evidence obtained was not legally sufficient tocorroborate the testimony of DeFiglio or anyaccomplice or co-conspirator to conviction them.

574. In truth, the substantial testimonial anddocumentary evidence obtained was more thanlegally sufficient to corroborate the testimony ofDeFiglio or any accomplice or coconspirator andconvict McInerney and Brown as a matter of statelaw.

575. In truth, that evidence was sufficient toconvict McGrath, Brown, McInerney and other DemC/O from the beginning, even without the testimonyof DeFiglio or any accomplice.

576. In 2011, McDonough exposed Trey Smith’sblatant falsehood in defense motions and took otheraction that caused the FBI and NYSP to take actionthat forced the ostensible prosecutions of McInerney,Brown and Renna and the disclosure of theirtestimony that further exposed the conspiratorialprosecution.

XXII. Trey Smith Played “Bad Cop” andThreatened to “Fuck” McDonough to Set-up

Initiation of Conspiratorial ScapegoatProsecution.

577. In the fall 2009, McInerney asked McDonoughseveral times not to talk to the NYSP or tell them hegot the AB for the AAB Brown filed on Sept. 14,2009.

578. At the same time, Chair Wade toldMcDonough that he should get an attorney and nottalk to the NYSP.

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579. Still, McDonough remained a cooperativewitness and had no concerns about it.

580. That changed only when Trey Smithdenigrated his deceased father and threatened himto prosecute him for the AB forgery.

581. On January 27, 2010, McDonough returned tothe NYSP station for further questioning by TreySmith. The relevant facts of the interview are setforth in McDonough’s affidavit dated February 24,2011, which is incorporated herein by reference.

582. At that time, Trey Smith began the interviewby telling McDonough that his desire to be thecounty District Attorney was crushed when hisfather, the Democratic Party Chair, “turned his backon me” and “wouldn ‘t even talk to me” about thatpossibility.

583. Trey Smith told McDonough that he was nothappy about the experience and, as Ogden walkedinto the room, said “in finishing what I was talkingabout, I think you can now see how it is ironic thatnow we are here, I am Special Prosecutor and I havethe ability to make you King for the Day” and wasgiving McDonough the opportunity to tell“everything”, but warned that he was “a very busyperson” who did not have “any time to waste.”

584. When McDonough began to discuss what hepreviously told Ogden, Trey Smith interrupted andstated: “I am a very busy man and I want you to tellme all about what went on with yon and your friendsin your Forgery Factory”

585. Trey Smith told McDonough he was going to“fuck” him like his father did him in the past and “if

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you don’t tell me anything more, the next time wespeak will be at a Grand Jury.”

586. The record facts show that Trey Smith had nolegitimate reason or purpose for meeting withMcDonough, especially without counsel present.

587. It is most evident from his failure to giveMiranda warnings and demand for a confessionwithout any regard for McDonough’s Fifth or SixthAmendment rights.

588. It is also obvious from the fact that he did notask McDonough about any allegations, witnessstatements, documents or other evidence.

589. Of course, McDonough then acquired counseland a deep distrust of Trey Smith.

590. Trey Smith later affirmed that he played a“bad cop” and threatened McDonough to scare himinto giving information against McInerney. Thoseportions of Trey Smith’s affirmation dated March 11,2011 relevant to the matter are incorporated hereinby reference.

591. However, the record facts and common sensebelie Trey Smith’s claims.

592. In the first place, Trey Smith already hadobtained substantial evidence sufficient to convictMcGrath and DeFiglio and, if followed, it would haveled to the discovery of other evidence sufficient toconvict McInerney, Brown, Dan Brown, Renna andall the Dem C/O.

593. Also, McDonough was a cooperative relativelyminor fact witness, there was no reasonable basis tosuspect that he had any substantive knowledgeabout the AB forgery and Trey Smith and Ogden did

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not previously ask him or others basic questions thatwould have elicited relevant facts about the acts ofMcInerney, Brown and others.

594. Otherwise, as a past prosecutor and StateSupreme Court law clerk with more than 25 yearsexperience in criminal practice, Trey Smith could nothave expected McDonough to confess to being thering-leader of a “forgery factory” for the completion ofAAB that Dem C/O had voters sign so they couldthen obtain and falsely vote their AB.

595. Nor could Trey Smith have expected that anyperson would believe he sought to have McDonoughprovide information against McInerney bythreatening to prosecute him unless he confessed tocrimes he did not commit.

596. In addition, as discussed, Trey Smith andOgden had already purposely ignored or failed toobtain testimony, forged AB documents and otherevidence that would have been sufficient to convictthe Dem C/O who committed the AB forgery,especially McInerney.

597. Also, Trey Smith told McInerney and Brownthat they would not be prosecuted and thesupervisory NYSP that they could not be prosecuted.

598. Moreover, McGrath’s conviction was a faitaccompli and he could have been offered a plea dealfor truthful information against his cohorts Brown,McInerney and the others.

599. Still, Trey Smith did not first prosecuteMcGrath and then offer him a plea deal in return fortruthful information against Brown, McInerney andhis other cohorts.

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600. Also, Trey Smith did not return to DeFiglio orany cooperating perpetrator for more informationthat he was willing to provide against the Dem C/O.

601. Instead, Trey Smith threatened to “fuck”McDonough unless he confessed to the crimes thesubstantial evidence already obtained proved wascommitted by McInerney, McGrath, Brown andothers in order to scare him into giving informationagainst McInerney, whom he already told he was notgoing to prosecute, and, did not prosecute.

602. McDonough was also merely a non-essentialfact witness who was cooperative and not accused,suspected or implicated in any crimes.

603. Lastly, Trey Smith could have followed theknown evidence and obtained readily availableevidence sufficient to convict McInerney, Brown,Renna and all the guilty Dem C/O just as Sr. Inv.O’Brien did in 2011 after McDonough defended hisinnocence, as stated.

604. On the other hand, McGrath, Brown,McInerney and O’Malley knew that McDonoughwould testify truthfully and incriminate them,especially concerning their actions on September 14,2009, if he was properly questioned or called totestify.

605. Trey Smith knew there was no evidence uponwhich to obtain McDonough’s indictment, especiallyif his truthful testimony was presented to the GrandJury, as alleged.

606. Therefore, upon information and belief, TreySmith threatened McDonough to keep him fromtestifying in the Grand Jury and avoiding indictmentand incriminating others.

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607. Upon information and belief, Trey Smith alsodid it to set-up his prosecution.

608. The record facts prove that McGrath, Brown,O’Malley and Ogden played key interdependent rolesin the initiation and continued conspiratorialprosecution of McDonough.

XXIII. Trey Smith Gave McGrath Immunity ToDeny Any Guilt, Not Give Truthful Information

Against the Dem C/O and To FalselyIncriminate McDonough.

609. Immediately after Trey Smith threatened to“fuck” McDonough on January 27, 2010, hetelephoned McGrath’s attorney and offered his clientimmunity for “anything of value.”

610. Several months later, McGrath entered acooperation agreement that required he givecomplete, truthful information, but he denied anyguilt or knowledge about the AB forgery contrary tothe irrefutable voter testimony and AB documentsthat proved his guilt and made false accusationsagainst McDonough that supported Trey Smith’ssilly prosecution theory.

611. Notably, contemporaneous billing recordentries show that Trey Smith spoke briefly withMcGrath’s attorney by telephone on four occasionsfrom January 27, 2010 to February 5, 2009 and thenon March 2, 2010, prepared a cooperation agreement.Trey Smith’s pertinent billing record entries areincorporated herein by reference.

612. Soon after McDonough obtained Trey Smith’sinitial time records, Trey Smith obtained a courtorder sealing those public records so McDonoughcould not again obtain them.

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613. Upon information and belief, Trey Smith’stime record entries show that from the date of hisappointment on September 28, 2009 until the date hethreatened McDonough on January 27, 2010, hespent little or no time investigating any Dem C/Oknown to be a suspect.

614. However, those records show that within anhour of threatening to prosecute McDonough heblindly offered McGrath immunity from prosecution.

615. Upon information and belief, before January27, 2010, Trey Smith conspired with McGrath andothers to fabricate McGrath’s false incrimination ofMcDonough as a basis for his scapegoat prosecution.

616. On March 12, 2010, McGrath executed awritten cooperation agreement and was questionedby Trey Smith and Ogden about the AB forgery. TheCooperation Agreement is incorporated herein byreference.

617. McGrath executed a written deposition onMarch 22, 2010, after reviewing and/or revising itwith counsel and/or Trey Smith. His deposition isincorporated herein by reference.

618. Upon information and belief, Trey Smith andOgden permitted McGrath, McInerney and others toreview and revise their depositions after meetingwith law enforcement, contrary to established lawenforcement best practices and NYSP policy, rules orregulations.

619. Essentially, in his sworn statement, McGrathfalsely incriminated McDonough and lied abouteverything, especially what occurred in McDonough’soffice on Sept. 14, 2009.

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620. Specifically, therein McGrath alleged:

(a) He saw McDonough write false Excuses on two(2) AAB of the many he filed; and,

(b) On September 14, 2009, he heard McDonoughand Brown talk about “... the need to have names [foran AB Agent] listed on each of the [AAB] ... [he] took[] to mean that the “Released To “ names were blankon the [AAB] they were speaking about, ... JWelchcome up as a name that could be entered .... [He]remember[ed Brown] ... calling [Jim] from hiscellphone ... [but did] not recall [Brown] mentioningthe number of [AAB] ... [He] knew from theconversation ... there were roughly 35 [AAB] they weretalking about .... [He] knew it would be difficult totrack people down with the [AB] .... [He] wasn’t surewho had the [AAB] at that point.... [He] told themboth to make sure that they didn’t mess with thevoters from District 1. [He] specifically mentionedJWelch and told them both that his excuse was thathe was a diabetic. [He] knew his [AAB] was in thepile because [he] had seen it Saturday when [he] metwith Dan Brown and Aldrich at Corliss Park. [He]had also seen [ ] McDonough fill-in the blank excuseson the [AAB] of Dickinson and Taylor back in August.“

621. McGrath also alleged that McDonough“kicked” him and Brown out of his office aftermentioning AB Agent names apparently because hedid not want them to be involved or witnesses to hisfalse “finishing” of AAB.

622. McGrath did not mention that O’Malley was inthe room at any time.

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623. The accusations McGrath made againstMcDonough were directly contradicted and provenfalse by the voter affidavits and AB documents aswell as the later trial testimony of Brown and JWelch.

624. Trey Smith and Ogden also knew thatMcGrath’s denial of guilt was proven false by thevoter affidavits and AB documents already obtained,as follows:

(a) Dickinson AB Documents. McGrath claimed:The voter entered Mason as AB Agent, McDonoughentered a false Excuse and he signed voter’s namewith permission. Dickinson stated: He signed a voterregistration card (or document) for McGrath; he didnot give anyone any information on the AAB; and hedid not receive an AB, sign an AB envelope or vote.

(b) Taylor AB Documents. McGrath claimed: Thevoter wrote Mason as AB Agent; he told McDonoughthe correct voter Excuse; and, he signed her name onAB envelope and voted her AB with her permission.Taylor stated: She signed a voter registration card;she never got an AB or gave anyone permission tovote it; and the Excuse on her AAB was incorrect.

(c) John Gilbert AB Documents. McGrath claimed:Gilbert had his wife sign his AAB; he wrote voter’sAB Agent on his AAB; he does not recall who wrotethe Excuse on his AAB; and, he signed the voter’s ABenvelope and voted his AB with permission. Gilbertstated: He could not read/write too well; he was notregistered to vote; he never saw or signed an AAB;McGrath had him sign something; he did not believeit is his signature on AB envelope, but was not

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certain; and, he never saw or voted an AB or justsigned an AB envelope.

(d) Stephan Carpenter AB Documents. McGrathclaimed: he signed and completed the voter’s AABwith information from the voter; the voter signed hisAB envelope and he voted the AB with permissionand “licked the envelope and mailed it to the BOE as[he] did with all the ballots”; and, he knew the voter.Carpenter stated: McGrath asked to vote for him andhe signed a voter registration form; he signed anAAB, but did not complete it, his name was spelledwrong and his address was wrong on both forms; hedid not recall voting an AB or seeing AB envelope,but the signature looks like his; he did not recallchecking boxes on a paper ballot; and he had noobjection if his AB was voted for McGrath because healso knew his brother the State judge.

(e) Marc Welch AB Documents. McGrath claimed:he knew the voter and did not fill-out his AAB butintroduced him to Brown and Aldrich and theycompleted the AAB with him; the voter signed hisAB envelope and he voted the AB with the voterbecause the voter had trouble writing; and, he lickedthe AB envelope and sent to BOE for the voter.Welch stated: McGrath and [Mason] had him sign anAAB; he did not sign an AB; and he voted in personinstead.

625. Trey Smith and Ogden knew that the evidencealready obtained was sufficient to convict McGrathand proved that his purported cooperation was falsein its entirety.

626. Upon information and belief, McGrath wasgiven immunity solely to protect himself from

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prosecution, keep him from incriminating the otherDem C/O and initiate the scapegoat prosecution ofMcDonough because he had no other reason to lieonce immunized.

627. By November 2009, all the guilty Dem C/Ohad been silenced and prevented from being called aswitnesses by being named targets, given no incentiveto come forward or tell the truth and told not to beconcerned because it would all be over soon.

628. Nonetheless, substantial irrefutable evidencewas overwhelmingly sufficient to convict McGrathand, therefore, his prosecution was unavoidablewithout a scapegoat.

629. McGrath, Trey Smith and Ogden knew thatthe testimony and AB documents of voters, especiallyWelch and Taylor, would prove his guilt and thefalsity of his cooperation.

630. They also knew, however, that if McGrath toldthe truth it would have led to the conviction ofMcInerney and everyone involved in the crimes.

631. At the same time, he could not truthfullyincriminate McDonough for the crimes that he andhis cohorts committed.

632. Thus, the only way Trey Smith could avoidconvicting McGrath and other Dem C/O was to givehim immunity to falsely accuse McDonough offorging AAB of those voters.

633. Consequently, the conspiracy required thatMcGrath be given immunity with impunity becausethe overwhelming and irrefutable evidence of hisguilt, including the inevitable finding of his DNA onAB envelopes that he forged and licked close, would

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also prove that he breached his cooperationagreement by not giving complete or truthfulinformation.

634. The fact that McGrath falsely denied his ownguilt to Trey Smith and Ogden and they accepted itas truthful when known to be false, alone proves theconspiracy alleged.

635. The fact that McGrath gave a false swornstatement about what happened in McDonough’soffice on September 14, 2009 to falsely incriminatehim for Brown’s crimes while at the same time failedto mention that O’Malley was present and sittingacross the desk from Brown as he wrote Excuses onseveral AAB that Brown gave him, also proves it.

636. The conspiracy and set-up is also clear fromthe fact that Brown and O’Malley later gavefabricated testimony consistent with McGrath’s falseaccusation and that could not have happened unlessthey all acted in conspiracy because they all knewthat their testimony, although as consistent aspossible, was fatally contradictory and false.

637. In addition, McGrath’s failure to admit thathe, McInerney, Brown or any of the other Dem C/Oacted in conspiracy to commit the AB forgery(especially with respect to the AAB of Welch, Taylorand Dickenson that the record facts were completedin the handwriting of Brown or Dan Brown) evenafter given immunity and Smith’s failure toprosecute him even though his purported cooperationand testimony was proven false by the voters andforged AB documents, also evidences the conspiracyto scapegoat prosecute McDonough at its inception.

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638. According to Trey Smith, he blindly offeredMcGrath immunity for “anything of interest” onlybecause by November 2009 his investigation wasstalled, “many questions were unanswered” and heand Ogden thought McDonough knew more aboutMcInerney.

639. Trey Smith further claims that on or aboutJanuary 27, 2010 to March 12, 2010, McGrathunexpectedly dropped a bombshell of incriminationagainst McDonough.

640. However, the record facts and common sensebelie Trey Smith’s absurd claims.

641. No reasonable investigator or prosecutorinvestigating the matter would have blindly givenMcGrath immunity without knowing that he wasgoing to give information worthy of suchconsideration especially because his conviction was afait accompli.

642. The case was about “massive” voter fraud and,more importantly, the forgery of AB votes andsignatures, and the evidence proved that McGrathcommitted those serious crimes in conspiracy withBrown, McInerney and others.

643. Nonetheless, instead of offering McGrath aplea deal only if he provided truthful informationagainst Brown, McInerney and his other cohorts thatwas consistent with the evidence or returning toDeFiglio or any other cooperative witnesses for moreinformation, he gave immunity to McGrath allegedlywithout knowing the nature of the cooperation firstand then accepted his patently false statement andunexpected incrimination of McDonough to

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commence prosecution against a clerk for allegedlyentering data on AAB.

644. According to Trey Smith, it just happened thatMcDonough was the same cooperative witness who,although he was not accused, suspected or implicatedin any crimes, he threatened to “fuck” unless heconfessed to the AB forgery that McInerney andothers committed to get him to incriminateMcInerney even though he already told McInerneyhe would not be prosecuted, only moments beforeoffered McGrath immunity “for anything of interest.”

645. Furthermore, McGrath’s patently falseaccusations just happened to soundly support thepreposterous prosecution theory that Trey Smithallegedly adopted after that because before thenthere was no probable cause to suspect McDonoughcommitted any crime when, in fact, he hadquestioned witnesses about and sought theirincrimination of him before McGrath gave hispatently false information and incriminated him.

646. Then, despite the fact that McGrath’spurported cooperation was patently incredible andproven false by substantial evidence, Trey Smithrelied on it to initiate the prosecution based on hisfalse accusations and the nonsensical prosecutiontheory, as stated.

647. Also, the record facts asserted prove thatMcDonough was tapped for scapegoat prosecutionlong before Trey Smith threatened him and gaveMcGrath immunity.

648. Upon information and belief, Brown, O’Malleyand other Dem C/O conspired and agreed prior toJanuary 27, 2010 to then give whatever false

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testimony was “needed” to corroborate McGrath’sfalse testimony in the initiation and continuation ofthe prosecution.

649. Later, Trey Smith and Ogden absurdlydefended McGrath’s false testimony and failed torescind his immunity even after his denial of guilt,failure to provide any information against the guiltyDem C/O and his patently incredible accusationsagainst McDonough in breach of his cooperationagreement were proven false by substantialirrefutable evidence.

650. Trey Smith then conspiratorially prosecutedMcDonough for non-criminal acts he did not commit(alleged entry of false information on authenticatedAAB) instead of McInerney, McGrath and other DemC/O for the serious crimes the evidence proved theydid commit.

XXIV. Other Salient Evidence of Conspiracy toScapegoat Prosecute McDonough.

A. McNally Advised Martiniano to Not DiscloseFacts Directly that Directly Incriminated

Brown and McInerney because “It Will Be OverSoon.”

651. Upon information and belief, on/aboutSeptember-December 2010, at LoPorto’s Restaurant,Martiniano told McNally that he knew Trey Smithand NYSP talked to witnesses but they nevercontacted him and he had personal knowledge offacts relevant to the AB forgery.

652. Upon information and belief, at that time,Martiniano specifically asked McNally whether heshould contact Trey Smith or the NYSP about thematter.

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653. In fact, Trey Smith, Ogden and NYSP knewMartiniano and Renna were implicated in the ABforgery or material witnesses but they were neverquestioned.

654. Upon information and belief, in response,McNally told Martiniano that he should not contactanyone or worry because “it was all going to go awaysoon anyway.”

655. Martiniano relied upon McNally’s advicebecause he was the county prosecutor.

656. Upon information and belief, McNally gavethat advice without having any discussion withMartiniano about the facts of which he hadknowledge.

657. In fact, as stated, McInerney and Brownadmitted to Martiniano on September 12, 2009 thatthey were going to use AAB they had voters sign toforge AB.

658. Therefore, the advice McNally gaveMartiniano effectively resulted in the furthersuppression of direct evidence of the guilt ofMcInerney and Brown as well as the innocence ofMcDonough that should have been obtained by TreySmith and Ogden before his indictment.

659. Obviously, McInerney and Brown knew whatthey had told Martiniano.

660. Consequently, the personal relationshipsamong McNally, McInerney, Trey Smith and otherDem C/O who committed the AB forgery iscompelling circumstantial evidence of theirconspiracy to scapegoat prosecute McDonough asalleged.

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B. McNally Made Extrajudicial StatementsLikely to Prejudice McDonough.

661. On September 29, 2011, during a WNYTnewscast, McNally said McDonough’s defense were“ridiculous conspiracy theories” and admitted hetalked with him and McInerney about the case forthe obvious implication that he was guilty.

662. Later, on or about October 19, 2011, during aTalk 1300 radio show interview, McNally said “itwould take an eternity” to understand the logic ofMcDonough’s motion to dismiss the indictment anddisqualify Trey Smith based on his illegalappointment despite the fact it was based on well-settled law and a few indisputable record facts ofwhich he was aware.

663. Upon information and belief, there could be noplausible reason for McNally’s public comments afterdisqualification himself other than to further thescapegoat prosecution.

664. Later, McNally opposed McDonough’s requestthat the county commence civil action to have TreySmith’s appointment nullified and opposed hismotion for disqualification and dismissal knowingthat he did not file a proper motion and therefore itwas unlawful.

C. Trey Smith Failed to Obtain Mclnemey’s CellRecords.

665. Trey Smith subpoenaed and reviewed themobile phone records of McDonough, LoPorto,Brown, Welch and others but claimed that he andthe NYSP were unable to obtain those of McInerneydespite repeated efforts.

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666. McNally refused a state freedom ofinformation law request to provide the records of hispublic mobile phone, even redacted to protect lawenforcement or personal privacy.

D. No Law Enforcement Forensic Expert WitnessUtilized During Investigation.

667. Despite the fact that Trey Smith wasconducting an investigation of AB forgery he did notobtain the services of one of the many qualified lawenforcement Forensic Document Examiners (FDE) orhandwriting experts that were available to analyzethe questioned AB documents without cost duringhis investigation and prior to any Grand Jurypresentation.

668. Upon information and belief, Trey Smithpurposely did not request and obtain the services, ofany such law enforcement FDE or handwritingexpert because a proper examination of the forgedand falsified AB documents would have required thathandwriting exemplars first be obtained from anysuspect and specifically, McGrath, McInerney,Brown, Dan Brown, Renna and other Dem C/O whowere suspects, but not McDonough.

669. Upon information and belief, Trey Smithpurposely did not request and obtain the services ofany such law enforcement FDE or handwritingexpert because he did not want proper and objectivehandwriting and forensic analysis or findingsconcerning the AB documents.

670. Upon information and belief, Trey Smithpurposely did not request and obtain the services ofany such law enforcement FDE or handwriting

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expert because of the conspiracy to scapegoatprosecute McDonough and its objectives.

E. No Handwriting Exemplars of Dem C/OObtained During Investigation.

671. In fact, Trey Smith purposely did not requestand obtain handwriting exemplars of McGrath,Mclnemey, Brown, Dan Brown, Renna or any otherDem C/O for the purpose of having a proper forensicor handwriting analysis done concerning thequestioned AB documents during his investigation,and specifically, before he began to present a case tothe Grand Jury.

672. In fact, Trey Smith purposely did not requestand obtain handwriting exemplars of McDonough forthe purpose of having a proper forensic orhandwriting analysis done concerning the questionedAB documents during his investigation, andspecifically, before he began to present a case to theGrand Jury for writing false AB Agent names andExcuses on all of the AAB that the Dem C/O had orostensibly had voters sign.

673. Upon information and belief, Trey Smithpurposely did not request and obtain handwritingexemplars from McGrath, McInerney, Brown, DanBrown, Renna, the other Dem C/O who weresuspects or McDonough before he began to present acase to the Grand Jury because he did not wantproper and objective handwriting and forensicanalysis or findings concerning the AB documentsbefore he presented a case to the Grand Jury toinitiate the prosecution of him because of theconspiracy to scapegoat prosecute him.

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F. Effort to Coerce McDonough to Plead Guilty.McDonough Tells Trey Smith He Will Expose

Scapegoat Conspiracy.674. On or about January 2010 and thereafter up

to and including January 28, 2011, Trey Smithsought to coerce McDonough into pleading guilty toavoid indictment.

675. The effective suppression of the truthfultestimony of O’Malley, Martiniano, McInerney,Renna, Galuski, Campana and others that wouldhave exculpated McDonough and the false testimonyof McGrath and Brown would never have beenundone if McDonough had plead guilty in the face ofa grossly over-charged indictment.

676. Also, Renna would never have come forward,all the Dem C/O would have asserted their 5th

Amendment right to remain silent to keep fromtestifying and Trey Smith would have simplydiscredited and marginalized Martiniano if he latercame forward.

677. However, because he was innocent, theconspiracy did not end in McDonough’s plea becausehe refused to succumb to coercion even after TreySmith targeted him for prosecution as themastermind of the AB forgery and leaked that hisindictment was imminent.

678. Furthermore, even after McGrath in March2010 made his false accusations against McDonoughas stated, there was no reasonable cause to believeMcDonough forged any AB or committed any crimeconcerning AAB.

679. Also, there could be no credible evidenceagainst McDonough because he committed no crime

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and was not involved in the AB forgery of the DemC/O.

680. On the other hand, by November 2009, therewas substantial evidence to prove that all the ABreleased on AAB the Dem C/O filed on September 12,2009 and September 14, 2009 were forged byMcInerney, McGrath, Brown, Renna and others inconspiracy.

681. In fact, McGrath, McInerney, Brown andRenna falsely voted all the forged AB and sealed theAB envelopes in which they were filed.

682. Also, Trey Smith took no further substantiveaction in the investigation of the AB forgery afterMcGrath falsely incriminated McDonough in March2010.

683. At all times on or about July 2010 andthereafter, McDonough informed Trey Smiththrough counsel that he would provide truthfultestimony if called upon to testify but if prosecutedwould seek vindication by dismissal or trial verdict,

684. More specifically, after Trey Smith disclosedcopies of all witness statements obtained through theprivate and criminal investigations and relatedrecords, on or about July 2010 and all timesthereafter, McDonough informed Trey Smith that itwas obvious from all the evidence that the ABforgery was committed by those Dem C/O he soughtnot to prosecute; i.e. McGrath, Brown, McInerney,DeFiglio, Renna and others.

685. In fact, at all times thereafter, defense counselrepeatedly told Trey Smith that if McDonough waswrongfully prosecuted he would take all proper

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actions to expose the scapegoat conspiracy in defenseof any such unlawful and reprehensible action.

G. McDonough’s DNA Allegedly Found on Three(3) AB Forged by McInerney and Renna That

Supports Prosecution Theory Is FurtherEvidence of Conspiracy.

686. Upon information and belief, because of thealleged conspiracy, Trey Smith knew fromMcInerney, Brown and McGrath, indirectly throughhis counsel and/or McNally, that: (a) DNA of Rennalikely would be found on several AB envelopes heforged; (b) DNA of McGrath likely would be found onseveral AB envelopes; (c) the DNA of McInerneylikely would not be found on any AB envelopesbecause he used gloves and water to seal ABenvelopes when he forged them; and the DNA ofBrown would likely not be found on any AB envelopebecause he did not seal them.

687. Upon information and belief, Trey Smith knewthe DNA of McInerney, Brown or Dan Brown wouldnot be found on any AB envelopes because he toldthem they would not be prosecuted before DNAtesting was sought (although McInerney forged all ormost of them).

688. Upon information and belief, Trey Smith musthave known that McGrath’s DNA would be found onthe AB he forged.

689. Also, Trey Smith never questioned Renna ornamed him as a suspect so no AB envelope wastested for his DNA at that time.

690. On or about July 2011, Trey Smith obtained acourt order compelling McDonough, LoPorto,McInerney and/or other to submit to DNA testing.

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691. On various dates thereafter, Trey Smith hadnumerous AB envelopes tested for DNA even thoughthe focus of his investigation was never centered onAB forgery.

692. Upon Trey Smith’s direction, the NYSP testednumerous AB envelopes for DNA.

693. Thereafter, the NYSP crime lab allegedlyfound McDonough’s DNA on the sealed portion ofthree (3) forged AB envelopes (voters Testa,Robertson and Suozzo).

694. Interestingly, McDonough’s DNA wasallegedly found: (a) only after the NYSP crime labused extraction methods Trey Smith proposed aftermultiple attempts following established protocolsresulted in negative findings and Trey Smithmonitored its utilization; (b) only on three ABenvelopes; and, (c) only on the AB envelope of voterswho were not among the public housing residentsknown to have been asked to sign AAB by McGrath,McInerney, DeFiglio, Brown, Dan Brown, LoPorto,Galuski, Aldrich or any other Dem C/O on or beforeSeptember 12, 2009.

695. Also, McInerney forged voter Suozzo’s AB buthe did not mention McInerney in his deposition, and,Renna forged the Testa and Robinson AB but had nocontact with them and was never questioned oridentified as a suspect by Trey Smith, even after hetampered with DeFiglio for McInerney and Brown in2010 to keep him quiet.

696. Therefore, it just so happened thatMcDonough’s DNA was extracted from AB envelopesof voters that, as long as McInerney and Renna didnot testify, would appear had no contact with any

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Dem C/O for the false implication that they musthave been forged “behind the counter” byMcDonough which just happened to support theprosecution theory.

697. The DNA was found using Trey Smith’s newtechnique in his and Ogden’s presence, after nonewas extracted from many other envelopes.

698. However, McDonough determined anddisclosed to the supervisory NYSP after hisindictment that: (a) the AAB for voters Testa andRobertson appeared to be completed entirely in theuniquely identifiable handwriting of Renna (forwhich he was later prosecuted only because of theaction of McDonough and supervisory NYSP), and,(b) the 2008 and 2007 AAB for voter Suozzo appearedto be completed in the uniquely handwriting ofMcInerney.

699. McDonough recalled seeing Renna only oncein that election period and assisting him in filing two(2) AAB for the 2009 WFP primary while workingopenly at the office counter with other BOEemployees nearby.

700. McDonough recalls that in assisting Renna heinserted those AB into envelopes.

701. However, McDonough had no contact withSuozzo or his AB envelope, did not falsely vote anyAB or forge any AB envelope and was not indicted fordoing so.

702. Thus, the finding of his DNA on thoseenvelopes is innocuous or questionable.

703. Ogden collected McDonough’s DNA and, uponinformation and belief, attended the NYSP crime lab

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when Trey Smith went there to monitor its testing ofthose AB envelopes.

704. McInerney admitted at trial that Renna waslike a father figure and his mentor.

705. McDonough was not involved in the forgery ofany AB envelope, he did not lick or seal any of thoseAB envelopes and no saliva was present or tested onany AB envelope.

706. Therefore, if McDonough’s DNA was trulypresent on any of those AB envelopes it is onlybecause of incidental handling, the environment orsome contamination.

707. The only significance of the alleged finding ofMcDonough’s DNA on those AAB concerns thefabricated false trial testimony of McInerney andRenna, as discussed below.

H. Trey Smith Begins Grand Jury ActionAgainst McDonough When No Credible

Testimony for Indictment.

708. On or about September 2010, Trey Smithcommenced a Grand Jury proceeding againstMcDonough and LoPorto.

709. At the same time, Trey Smith servedsubpoenas with McDonough as a defendant andleaked to the media that he was the primary targetwhose indictment was imminent.

710. In support of a DNA application, Trey Smithsubmitted the affidavit of Ogden in which he allegedthe AB forgery was committed in conspiracy byMcGrath, Brown, McInerney and others, includingMcDonough.

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711. However, Trey Smith did not present aconspiracy charge before the Grand Jury, nevercharged any Dem C/O of committing the AB inconspiracy and never intended to indict or prosecuteMcGrath, Brown, McInerney and other Dem C/Owho committed the AB forgery.

712. Trey Smith had no handwriting or forensicevidence against any person.

713. More importantly, Trey Smith had no credibleevidence whatsoever to even establish reasonablecause to believe that McDonough committed ABforgery or any crime.

714. Trey Smith had only the fabricated falseaccusations of McGrath about two (2) AAB and apurported conversation between he and Brown aboutAB Agent names, as stated, and the essentiallymeaningless purported finding of McDonough’s DNAon three (3) AB envelopes.

715. Therefore, it would have been plain to anyreasonable investigator or prosecutor that there wasno reasonable cause to suspect McDonoughcommitted AB forgery or any crime.

716. Nonetheless, on or about September 2010 toJanuary 2011, Trey Smith sought to coerceMcDonough into pleading guilty through routineleaking of information, abuse of process and otherscare tactics while he presented evidence before aGrand Jury.

717. Again, however, McDonough stood on hisinnocence and refused to bow.

I. McDonough’s Notice of Intent to Testify andRequest for Witness Testimony.

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718. In September 2010, McDonough gave TreySmith notice of his intent to testify in Grand Juryand request that Bugbee, O’Malley and others becalled as witnesses on his behalf.

719. That fact was reported in the local newspapersand, upon information and belief, was known byMcInerney, McNally, the Democratic Chairman andothers.

J. Trey Smith, McNally, McInerney and ChairWade Acted in Concert to Keep McDonough and

Bugbee from Testifying in Grand Jury.

720. Upon information and belief, Trey Smith knewthat the fabricated false testimony of McGrath wasinsufficient to obtain such an indictment, especiallyif challenged.

721. Upon information and belief, Trey Smith knewthat the false testimony of Brown, Ogden andO’Malley had to be fabricated to be as plausiblyconsistent as possible with McGrath’s fabricatedfalse testimony, especially regarding the events ofSeptember 14, 2009 in McDonough’s office if hetestified as noticed.

722. Upon information and belief, Trey Smith alsoknew that McDonough would incriminate McGrath,Brown and McInerney in AB forgery and perjury ifhe testified.

723. Upon information and belief, Trey Smith alsointended to obtain a grossly overcharged indictmentto coerce a guilty plea or obtain a wrongful convictionat trial.

724. Therefore, after McDonough gave notice of hisintent to testify, upon information and belief

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McInerney, McNally, Chair Wade and Trey Smithtook action to prevent McDonough from testifyingand avoiding a grossly over-charged indictment.

725. Upon information and belief, Trey Smith,McInerney and McNally knew that action wascritical to the scapegoat prosecution because therecan be no other plausible reason for McNally to onceagain involve himself in the matter from which hedisqualified himself purportedly because of hispolitical relation with McInerney by giving legaladvice to the primary target of a Grand Jury case,especially when all other pertinent facts areconsidered.

726. Initially, Chair Wade told McDonough that herecommended against him testifying before theGrand Jury.

727. Soon thereafter, McNally called McDonough,without the knowledge or consent of his attorney, togive him the names of attorneys to retain insubstitution of record counsel.

728. McInerney acted as McNally’s messenger ingiving those names to McDonough.

729. On December 6, 2010, McNally leftMcDonough a voice message to call him.

730. On December 7, 2010, BOE employee MarySweeney told McDonough that McInerney gave herthe names of two attorneys McNally said he shouldcontact because they would “do a good job at a lesserfee” than his attorney.

731. On December 8, 2010, McNally answeredMcDonough’s return call and asked if he had “gottenthe message from our friend”, but when asked his

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advice about testifying before the Grand Jury, said “Ican’t answer that question, I got to go” and ended theconversation.

732. Shortly after that call, Chair Wade called andtold McDonough that one of the two namedattorney’s owed him a favor and he would make acall for him.

733. When called, that attorney told McDonoughthat he likely would not have him testify before theGrand Jury and could probably resolve the casewithout too much expense.

734. Then, before the date McDonough would bepermitted to testify, O’Malley and other BOEemployees told McDonough that Trey Smith hadtreated them in an aggressive and rude manner(“almost as if they were criminals”).

735. Upon information and belief, Trey Smith’sactions were further tactics to scare, intimidate andprevent McDonough from testifying in conjunctionwith his personal derogatory remarks and the threatof prosecution he made to McDonough at the NYSPstation.

736. Trey Smith also ensured that Bugbee did nottestify before the Grand Jury about AB protocol andprocedures or the 2007 and 2008 AAB that hebelieved were forged by McInerney but ignored byTrey Smith by advising him that if he testified hemight incriminate himself in elections crimes and beprosecuted so he would be required to waiveimmunity and it was in his interests to retain anattorney.

737. Upon information and belief, Trey Smith’sactions were also purposeful tactics to intimidate,

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scare and prevent Bugbee from testifying about factsthat would tend to exonerate McDonough andincriminate McInerney in the AB forgery.

738. All of those actions and orchestrationsinstilled in McDonough more concern and distrust ofTrey Smith and caused him not to testify before theGrand Jury contrary to the strong advice andrecommendation of his attorney.

739. McDonough believed that Trey Smith wasintent on fabricating false testimony to wrongfullyprosecute him instead of the Dem C/O guilty of theAB forgery and he did not trust him to properly andfairly present the matter before the Grand Jury.

XXV. Conspiratorial Fabrication of FalseTestimony to Initiate Prosecution.

740. When the orchestrations to coerce McDonoughinto pleading guilty did not work Trey Smith thenhad to fabricate the false testimony of Ogden andO’Malley to be as consistent as possible withMcGrath’s false testimony, especially if he didtestify.

741. In fact, the record facts show that McGrathand O’Malley all played vital interconnected roles inthe conspiratorial fabrication of false testimony toinitiate the scapegoat prosecution of McDonoughbecause if any one of them told the truth, especiallyabout what happened in his office on September 14,2009, he could not have been prosecuted.

742. The record facts prove that Ogden also playeda key role in the initiation of the prosecution throughpatently false and improper purported expert lawenforcement testimony.

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743. The record facts also prove, however, that theconspiratorially fabrication of the false testimony ofthose key conspirators evolved to the absurd throughthe process, especially when the trial testimony ofMcInerney and Renna was forced though the actionsof McDonough, Sr. Inv. O’Brien and the FBI inexposing the conspiracy, as discussed.

A. Trey Smith and Ogden Emails Show Lackof Evidence and Conspiracy in Prelude to

Ogden’s Fabricated False Grand JuryTestimony to Initiate Prosecution.

744. In any event, as said, when Trey Smith beganpresenting a case before the Grand Jury to indictMcDonough the purported evidence against him wasessentially non-existent.

745. Trey Smith and Ogden essentially admittedthat fact in emails related to DNA.

746. In an email dated September 27, 2010, TreySmith stated: “Now I’m thinking maybe I start offwith an indictment of both LoPorto and McDonoughinstead of just Loporto ... I don’t think anystatements from McDonough to third parties (NYSP)explicitly incriminate LoPorto and none fromLoPorto (to Couch) explicitly incriminate McDonough.... “

747. In reply, by email dated September 29, 2010,Ogden stated: “I agree with indicting both of them.At the very least that McDonough is guilty of officialmisconduct. “ A copy of those emails is attached asExhibit “E” and incorporated herein by reference.

B. McGrath’s Conspiratorially FabricatedFalse Testimony to Initiate Prosecution.

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748. Upon information and belief, on or aboutDecember 8, 2010, McGrath testified before theGrand Jury in accordance with his prior statement.

749. In substance, McGrath testified that hewitnessed McDonough write false Excuses on theDickenson and/or Taylor AAB and on another dateoverheard McDonough talking with Brown aboutnames he intended to write as AB Agents on aboutthirty-five (35) AAB that the Dem C/O had voterssign on and/or before September 12, 2009.

750. Again, McGrath testified that McDonough“kicked” him and Brown out of his office aftermentioning AB Agent names to be entered on AABapparently because he did not want them to beinvolved or witnesses to his false “finishing” of AAB.

751. Again, however, McGrath did not mentionthat O’Malley was in the room when he and Brownwere there.

752. Upon information and belief, McGrath alsodenied having committed the AB forgery or criminalacts in conspiracy with Brown, Dan Brown,McInerney and other Dem C/O.

753. Upon information and belief, at that time,McGrath intentionally did not testify truthfullyabout material facts known to him concerning theAB forgery that would have incriminated Brown,McInerney and others in the AB forgery,incriminated Brown in perjury, exoneratedMcDonough from any indictment or prosecution inthe matter and exposed the conspiratorial scapegoatprosecution.

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754. Specifically, McGrath did not admit that hecommitted the AB forgery in conspiracy with Brown,McInerney, Dan Brown, DeFiglio, Renna and others.

755. Upon information and belief, McGrath’stestimony was false in all material respects andfabricated in conspiracy with Trey Smith and/orothers to initiate the scapegoat prosecution ofMcDonough and obtain the objectives of theirextrajudicial conspiracy, as alleged.

756. McGrath’s fabricated false testimonyincriminated McDonough in alleged acts which hedid not do, but for which he was indicted as a directresult thereof.

757. More significantly, McGrath’s false testimonyset the foundation for the false testimony of Ogden,Brown and O’Malley as discussed below.

C. Ogden’s Conspiratorially Fabricated FalseTestimony to Initiate Prosecution

758. Upon information and belief, on or aboutJanuary 13, 2011 and January 24, 2011, Ogdentestified before the Grand Jury, in substance, that hereviewed the handwriting on the Dickenson and/orTaylor AAB and all the other allegedly falsified orforged AAB filed in the subject WFP (about 40) andin his experience as a NYSP investigator it was hisopinion that the AB Agent and Excuses on all thoseAAB were written in the same handwriting andappeared to reflect a distinct pattern that showedthey were all falsified by the same person.

759. Upon information and belief, at the same time,Ogden failed to testify about relevant evidenceobtained during the investigation that would haveexonerated McDonough and proved that the subject

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AB forgery was committed by known Dem C/O,including McGrath.

760. Upon information and belief, Ogdenintentionally did not testify truthfully about materialfacts known to him concerning the AB forgery thatwould have exonerated McDonough from anyindictment or prosecution with respect to the matter.

761. Upon information and belief, Ogden’stestimony was false in all material respects andfabricated in conspiracy with Trey Smith and/orothers to initiate the scapegoat prosecution ofMcDonough and obtain the objectives of thenextrajudicial conspiracy, as alleged.

762. In fact, the Excuses and AB Agents on allthose AAB do not appear to the naked eye andobserver to have been written in the samehandwriting by the same person and the record factsprove that they were not.

763. No reasonable investigator could have offeredsuch patently improper and false testimony orpurported expert investigator opinion testimony.

764. Ogden’s fabricated false testimonyincriminated McDonough in alleged acts which hedid not do but for which he was indicted as a directresult thereof.

765. More significantly, Ogden’s false testimonyprovided the sole basis for the indictment ofMcDonough for most the counts of the indictmentfiled against him.

766. Ogden’s testimony was the basis forMcDonough’s indictment on all charges except theten (10) AAB that related to the false testimony of

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McGrath and O’Malley and the three (3) ABenvelopes that related to the purported DNAevidence, as described.

767. Upon information and belief, the AB Agentsand Excuses on all the relevant AAB were notwritten in the same handwriting, as Ogden testified.

768. Ogden later admitted at trial that hispurported law enforcement expert testimony beforethe Grand Jury was not correct and a mistake.

E. O’Malley’s Conspiratorially FabricatedFalse Testimony to Initiate Prosecution

769. On or about December 9, 2009, O’Malleyappeared before the Grand Jury in response tosubpoena openly served upon him at the BOE.

770. At that time, Trey Smith elicited O’Malley’struthful testimony that he wrote Excuses on severalof the AAB upon which he wrote Excuses inMcDonough’s office on September 14, 2009, which hewas shown.

771. At that time, Trey Smith did not showO’Malley all eight AAB on which he wrote theExcuses that Brown gave him while in McDonough’soffice on September 14, 2009.

772. O’Malley testified vaguely that the person whogave him those Excuses was “probably the candidate”who got that information from “probably anoperative.”

773. In truth, as stated, O’Malley got all thoseExcuses he wrote on the AAB from Brown (thecandidate) after Brown made a telephone call toMcInerney (the operative) and told O’Malley that he

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had the Excuses the voters gave so it could beentered on the AAB, as stated.

774. Upon information and belief, O’Malley’s initialtestimony was orchestrated by Trey Smith as a ruseto hide from McDonough the fact O’Malley wouldreturn to the Grand Jury and falsely accuse him ofmaking him write false Excuses on AAB in his office.

775. The fabrication of O’Malley’s false testimonyby Trey Smith is further evidenced by certainrelevant memoranda and emails between TreySmith, Ogden and O’Malley’s attorney. Relevantmemoranda/email are attached as Exhibit “F” andincorporated herein by reference.

776. Those memoranda and emails show, insubstance, that before and/or after O’Malley firsttestified before the Grand Jury, Trey Smithpurportedly analyzed the AAB and determined thathis handwriting appeared on many AAB and,therefore, he could be prosecuted as a “kingpin” ofthe AB forgery.

777. Then, on or about December 13, 2010 at 2:45a.m., Trey Smith directed Ogden to contact O’Malleyand warn him that he should get an attorneybecause there were perjury problems with his GrandJury testimony.

778. Upon information and belief, Ogden did sothat same day.

779. Thereafter, on December 14, 2010, Trey Smithcontacted the BOE and informed its employees undersubpoena that the Grand Jury scheduled for the nextmorning was cancelled.

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780. That same day, Trey Smith calledMcDonough’s counsel to specifically confirm that theGrand Jury scheduled for the next morning had beencancelled.

781. Then, on December 15, 2010 at 4:10 a.m., TreySmith sent O’Malley’s attorney an e-mailthreatening to prosecute him for AB forgery andwarning that it made no sense for him to protect hisboss, who was likely going to be publicly disgracedand imprisoned.

782. Later that morning, O’Malley took a personalday off and re-appeared before the Grand Jurywithout informing anyone in the BOE about it.

783. That day, O’Malley returned to the GrandJury and testified, in substance, that on September14, 2009, his boss McDonough called him into hisoffice and told him to make-up Excuses and writethem on those eight (8) AAB, so he did.

784. At trial, however, O’Malley admitted that TreySmith called him at his home the night before hereturned to the Grand Jury, although he had neverdone so before.

785. O’Malley testified, however, that he could notrecall anything he and Trey Smith discussed; hecould not recount one word of anything discussed.

786. Upon information and belief, O’Malley’stestimony was false in all material respects andfabricated in conspiracy with Trey Smith and/orothers to initiate the scapegoat prosecution ofMcDonough and obtain the objectives of theirextrajudicial conspiracy, as alleged.

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787. Upon information and belief, O’Malley’ssurreptitious return to the Grand Jury wasorchestrated by Trey Smith to avoid exposingO’Malley’s false testimony and the conspiracy toMcDonough. Several relevant contemporaneous e-mails between Trey Smith and McDonough’s defenseattorney concerning the matter are incorporatedherein by reference.

788. Upon information and belief, O’Malley’struthful testimony would have incriminated Brownand McInerney in the AB forgery, incriminatedMcGrath and Brown in perjury, exoneratedMcDonough and exposed the conspiratorialscapegoat prosecution.

789. Upon information and belief, O’Malleyintentionally did not testify truthfully.

790. Specifically, O’Malley did not admit thatBrown told him the Excuses to write on those AAB inMcDonough’s office in the presence of McGrath andthat he did not commit any crime while assistingBrown nor, to his knowledge, did McDonough.

791. Upon information and belief, at that time,O’Malley intentionally did not testify truthfullyabout the delivery of the AB released on the AABfiled on September 14, 2009 to McInerney that alsowould have incriminated Brown and McInerney inthe AB forgery, incriminated Brown and McGrath inperjury, exonerated McDonough from any indictmentor prosecution with respect to the matter andexposed the conspiratorial scapegoat prosecution.

792. Upon information and belief, O’Malley’stestimony was false in all material respects andfabricated in conspiracy with Trey Smith and/or

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others to initiate the scapegoat prosecution ofMcDonough and obtain the objectives of theirextrajudicial conspiracy, as alleged.

793. O’Malley’s fabricated false testimonyincriminated McDonough in alleged acts which hedid not do, but for which he was indicted as a directresult thereof.

794. More significantly, O’Malley’s false testimonywas given to be consistent with the false testimony ofMcGrath and Ogden and the prosecution theory, asdiscussed.

795. Upon information and belief, the record factsshow that Trey Smith knew O’Malley was inMcDonough’s office on September 14, 2009 becausehe knew O’Malley wrote Excuses on those AAB eventhough McGrath did not mention him and Brown didnot testify.

796. Upon information and belief, O’Malley andMcGrath told Trey Smith that O’Malley wrote theExcuses that Brown gave him onto those eight (8)AAB.

797. The conspiracy is also proven by the fact thatO’Malley knew the truth, but played along with TreySmith’s charade of appearing as if he committedperjury in his initial Grand Jury testimony (when hehad not) and that he was worried about beingindicted as a kingpin in the AB forgeries (when hewas not).

798. O’Malley testified at trial that he was anervous person afraid of his own shadow, had nevercommitted any crime before and knew theinvestigation centered on “his boss.”

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799. Therefore, if O’Malley, McGrath and Brownwere not acting in conspiracy with Trey Smith noneof them would have been able to lie consistentlyabout those facts.

800. Upon information and belief, the record facts,make it obvious that O'Malley got the “word” not totalk and McGrath, Brown, Trey Smith and/or othersdid not want to expose him as a co-conspirator unlessand until necessary.

801. Upon information and belief, therefore,McGrath did not mention O’Malley when he gave hisstatement in March 2010 or testified in the GrandJury.

802. Upon information and belief, however, TreySmith knew that he “needed” O’Malley to give falsetestimony before the Grand Jury to obtain anindictment after McDonough gave notice of intent totestify.

803. Upon information and belief, Trey Smith gaveO’Malley immunity with impunity from theprosecution for his false testimony againstMcDonough just as he did McGrath.

804. Upon information and belief, McGrath andBrown knew that O’Malley could not be named as asuspect in order to prevent him giving testimonybecause he did nothing wrong.

805. Therefore, O’Malley would be called as awitness unless McDonough pled guilty.

806. More importantly, O’Malley, McGrath andBrown knew that if O’Malley told the truth he wouldexonerate McDonough and expose all of them toprosecution and civil liability.

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807. Upon information and belief, O’Malley’s falsetestimony was therefore fabricated by Trey Smithand the others to be direct proof of McDonough’sguilt because that was the false inference ofMcGrath’s false testimony (i.e. McDonough had himwrite false Excuses on AAB).

808. Their conspiracy is also proven by the fact thatMcGrath, O’Malley, Brown, McInerney and otherscould have told the truth about all the facts at anytime, but they did not.

XXVI. Seventy-Four (74) Count Indictment.

809. On January 28, 2011, McDonough wascharged by indictment with thirty-eight (38) countsof felony Forgery in the Second Degree (PL §170.10(2) and thirty-six (36) counts of felonyCriminal Possession of a Forged Instrument in theSecond Degree (PL § 170.25 (Counts 52 - 87), for atotal of seventy-four (74) counts.

810. Trey Smith obtained the grossly-overchargedindictment against McDonough based solely on thefabricated false testimony of McGrath, O’Malley andOgden after having about fourteen months to follow,gather and meticulously analyze the evidence.

811. Notably, the charges concern the alleged entryof false data on signed AAB and AB, but not the falsesignatures or votes on those documents that thoseDem C/O who were not indicted had forged and filedto illegally affect the outcome of an election.

812. On the date of indictment, McDonough madeto suffer a “perp-walk” of being processed andtemporarily detained at the police station until takeninto custody of the NYSP, handcuffed, transportedand walked before the court and media before the

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court. At arraignment, Trey Smith requested theforfeiture of any passport pending disposition of thecase and McDonough’s liberty was restricted totravel within the United States.

XXVII. Trey Smith Notarized Alleged ForgedSignatures on Two Voter Affidavits Admitted

Before Grand Jury for Indictment.

813. To obtain the seventy-four count indictment,Trey Smith had to subpoena and present thetestimony or CPL 190.40 affidavits of all the votersbefore the Grand Jury.

814. Relevant records of his investigation showthat Trey Smith and the NYSP had some difficulty inlocating, serving and ensuring the appearance of allthose witnesses.

815. Trey Smith prepared and notarized affidavitsof voters to be admitted to the Grand Jury in lieu oftheir testimony concerning falsification of their AAB(“Forgery Affidavit”).

816. At trial, two of those voters testified that thesignature on their purported Forgery Affidavit wasnot genuine.

817. College student Jermaine Joseph was the firstprosecution witness.

818. Immediately upon being shown his purportedForgery Affidavit, he testified that the signatureTrey Smith notarized above the juxtaposed name“Joseph Jermaine” was not his.

819. Mr. Joseph testified that he never saw thedocument before and found it humorous that hisname was incorrectly juxtaposed in print severalplaces without correction.

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820. He said he never would sign such a documentwithout correcting such an error.

821. In chambers, Trey Smith perspired soprofusely that sweat literally dripped down his faceas he straggled to address the issue with the Court.

822. Notably, even the trial court stated on thecourt record: “... The whole trial - the first witness outof the box says there’s a forged instrument that thePeople presented.” The relevant portion of the courttranscript is incorporated herein by reference.

823. Thus, the first witness in a case of allegedentry of false data on voter affidavits testified thatthe prosecutor notarized a forged signature on hispurported Forgery Affidavit.

824. Later, voter Jolene Van Vranken testifiedsimilarly.

825. Mrs. Van Vranken also signed a court exhibitwhich clearly demonstrated that her signature didnot match the one notarized by Trey Smith.

826. She also confirmed her testimony in affidavitsgiven to private investigator and a N.Y.S. AttorneyGeneral investigator. Her Forgery Affidavit, portionof her relevant trial testimony, trial exhibit areattached as Exhibit “G” and incorporated herein byreference.

827. In court and chambers, Trey Smith was againspeechless, but ripe with perspiration when he wasconfronted with the similar testimony of a secondprosecution witness.

828. Trey Smith did not question those voters toestablish that they were wrong in their testimonywhile on the stand and opposed a motion for hearing

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on the issue but later contradicted their un-impeached testimony by affirming that they signedtheir affidavits in his presence.

829. Nonetheless, the truth of the voters’ un-impeached testimony was confirmed by Trey Smith’sprofuse sweating, inability to maintain hiscomposure, inexplicable comments and the affidavitsthemselves; the signatures on which do not appear tomatch that of the voters.

830. Later, private and Attorney GeneralInvestigators obtained affidavits from voter VanVranken and her husband as well the opinion of aprivately retained certified FDE which all confirmedthe voter’s trial testimony that the signature TreySmith notarized was not hers. Those statements andreports are incorporated herein by reference.

XXVIII. Trey Smith Acted Beyond Scope of Lawby Prosecuting Alleged Acts that Do Not

Constitute the Crimes Charged as a Matter ofLaw

831. The evidence before the Grand Juryestablished that all of the questioned AAB weresigned or ostensibly signed by the voters when theywere brought into the BOE for filing.

832. Under New York law, a document is a forgeryonly when its authenticity is misrepresented, notwhenever it contains a falsehood ormisrepresentations not relevant to the identity of themaker.

833. Therefore, for all the reasons discussed, TreySmith prosecuted McDonough for alleged acts thatdo not constitute the forgery crimes charged as amatter of law.

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834. Under well-established law the entry of falseinformation not material to the authenticity of adocument or done with the permission of its makeror his agent does not constitute the crime of forgery(or, therefore, its criminal possession).

835. Therefore, the entry of information on an AABthat the voter has already signed or ostensiblysigned is not a forgery, even if that information isfalse because it does not affect the authenticity of thedocument; i.e. once it is signed it is the voter’s AABeven if it is missing information required for thevoter to receive the AB requested thereby.

836. The courts have stated that forgery is the“false making, not making falsely” (or completing) ofa document and concerns its authenticity.

837. So, if an AAB is executed or ostensiblyexecuted by a voter, the subsequent entry of falseinformation on it does not constitute a forgerybecause it has already been authenticated, i.e. itremains the voter’s even though it is “completedfalsely” after its execution.

838. Conversely, the execution of an AAB afterfalse information has been entered on it is not aforgery. In that scenario, the voter authenticates theAAB as his by signing it even though it is “madefalsely” and may constitute a fraud if later used foran improper purpose (e.g. theft of a vote by fraud).

839. Therefore, a voter cannot allege a forgery if hesigns a blank AAB that is later completed falsely,anymore than he could if he signs one that alreadycontains false information. In either case, once theAAB is signed by the voter (or ostensible voter) theperson who entered false information on it has

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“completed falsely” that document, but did notcommit a forgery.

840. Trey Smith did or should have known thatwell-established law.

841. Regardless, he is not entitled to absoluteimmunity for wrongfully prosecuting McDonough onfalsely alleged acts that do not constitute forgeries inexcess of the law.

842. As stated, there was no evidence or allegationthat McDonough illegally voted any AB or forged anyvoter signature on any AAB or AB envelope.

843. In truth, McDonough did not handle most ofthe questioned AB documents.

844. Still, McDonough was wrongfully prosecutedfor alleged acts he did not commit that do notconstitute the crimes charged, while those otherswere not prosecuted for the hundreds of AB forgeriesthey committed even after the wrongful prosecutionwas exposed.

XXIX. Post-Indictment Acts in Continuation ofScapegoat Prosecution.

845. About a year after his appointment and theexpenditure of hundreds of thousands of dollars infees, costs and laboratory resources, only McDonoughand LoPorto were indicted.

846. None of the Dem C/O alleged by Trey Smith inhis application for DNA samples to have committedthe AB forgery in conspiracy were indicted orprosecuted.

847. To the contrary, Trey Smith: (a) gaveimmunity, promises of non-prosecution or veryfavorable treatment to McGrath, DeFiglio, Couch,

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Caird, Welch and Aldrich; (b) told Brown, McInerneyand Dan Brown they would not be prosecuted; (c) didnot investigate Michael Leonard and Richard Mason;and, (d) failed to contact Renna and Martiniano.

848. Upon information and belief, Trey Smithplayed the role of lead investigator in directing,conducting and participating in his investigationthroughout all pre- and post-indictment stages,especially in the questioning of witnesses in aninvestigatory capacity.

849. Trey Smith continued to pursue the scapegoatprosecution in that capacity and role afterMcDonough’s indictment through two trials.

850. After indictment, Trey Smith publiclypronounced that he “just followed the evidence” inhis investigation.

851. However, the record facts prove that TreySmith, acting in concert and conspiracy with thenamed defendants, intentionally and maliciouslyacted to deprive McDonough of his liberty withoutdue process of the law by failing to obtain, ignoringand suppressing evidence sufficient to convictMcInerney, Brown, McGrath and the other guiltyDem C/O for the crimes they committed andfabricating and orchestrating the false testimony ofMcGrath, O’Malley, Ogden, Brown, McInerney,Renna and Robillard to initiate and continue hiswrongful indictment, arrest, prosecution andconviction as a scapegoat for alleged acts he did notcommit that do not constitute the crimes charged asa matter of state law.

852. It is alleged the record facts prove Trey Smith,in that capacity, did so to avoid the arrest and

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prosecution of the Dem C/O who committed seriouselection crimes.

853. It is also alleged that Trey Smith abused thecriminal process by wrongfully obtaining a baselessand grossly over-charged indictment to coerceMcDonough into pleading guilty in order to avoid theexorbitant cost of a protracted trial and likelyimprisonment with no prospect of the jury hearingthe testimony of those who would exonerate him ifthey did so.

A. Trey Smith Had No Intention of Prosecutingthe Guilty Dem C/O.

854. On the day of arraignment, during an off-record discussion in chambers, Trey Smith told Courtthat he did not intend to present any other relatedmatters before a Grand Jury.

855. Trey Smith denied that fact weeks later whenMcDonough exposed the scapegoat prosecution in amotion to disqualify and dismiss, which caused thesupervisory NYSP concern.

856. Still later, the truth of the matter wasconfirmed when the supervisory NYSP disclosedTrey Smith told them in 2009, 2010 and 2011 thatMcInerney and Brown could not be prosecutedbecause the evidence was not sufficient tocorroborate accomplice testimony.

857. McInerney and Brown admitted at trial aftertheir ostensible prosecutions were forced in 2011 bythe supervisory NYSP who took action in response toMcDonough’s motion that Trey Smith told them in2009, 2010 and 2011 they would not be prosecuted.

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858. Prior to indictment, Brown’s attorney alsoadmitted that fact before retracting it.

B. Trey Smith and McNally Oppose Request toHave Illegal Appointment Declared Null and

Void and County Officials Fail to Take Action.

859. On February 24, 2011, McDonough moved todisqualify Trey Smith on the same basis of anappearance of impropriety that McNally disqualifiedhimself in September 2009.

860. Trey Smith successfully opposed the motion onthe basis that under state law a District Attorneymay be disqualified only when the evidence shows anactual prejudice to the moving party or sosubstantial risk of prejudice that it cannot beignored.

861. McDonough then took action to have TreySmith’s appointment voided on that same groundand well-established controlling state law.

862. Specifically, by letters dated May 26, 2011 andJune 10, 2011 with attached legal brief, (“DistrictAttorney Did Not Establish a Basis for hisDisqualification and Therefore the County Court hadNo Authority to Appoint a Special District AttorneyPursuant to County Law § 701”), McDonough gaveTrey Smith, McNally, The County of Rensselaer andits executive and county officials notice that thedisqualification of McNally and appointment of TreySmith was unlawful, all of his acts were in excess ofthe legal authority and the jurisdictional lack ofstate constitutional legal authority could not becured nunc pro tunc by subsequent motion, underclearly established state law. Those letters areincorporated herein by reference.

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863. In those letters, McDonough urged the countyto commence state court action to nullify TreySmith’s appointment and end the unlawful scapegoatprosecution of McDonough.

864. It is record fact that McNally failed to showlegal basis for disqualification on proper writtenmotion as required under well-establishedcontrolling state law.

865. Still, Trey Smith by letter dated May 31, 2011,urged the county not to commence an action to havehis appointment nullified. That letter is incorporatedherein by reference.

866. Thereafter, the county took no action to stopthe wrongful prosecution of McDonough despite thedictates of the controlling state law that mandatedthe relief requested.

867. McDonough had no right under state law tocommence a plenary proceeding to have Trey Smith’sappointment nullified during a criminal prosecutionor to perfect an interlocutory appeal from anyadverse ruling on the issue before trial.

868. County officials should have taken that actionat the latest when McDonough raised the issue, butthey did not.

869. Thereafter, about June 13, 2011, McDonoughfiled a motion to dismiss the criminal charges on thebasis that Trey Smith’s appointment was unlawful.

870. Trey Smith and McNally successfully opposedthat motion by ignoring well-established state law.The affirmations of McNally and Trey Smith datedJuly 7, 2011 in opposition to the motion areincorporated herein by reference.

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871. The state trial court issued an order denyingMcDonough’s motion in reliance on the argumentsand claims of Trey Smith and McNally and in doingso, ignored and failed to follow the law of the case aswell as controlling state law.

872. Upon information and belief, Trey Smith andMcNally urged the County Attorney to not bringaction to declare Trey Smith’s appointment invalidand end the prosecution.

873. Consequently, Trey Smith continued thescapegoat prosecution and the county failed to takeappropriate action to end it despite notice andknowledge of its unlawfulness.

C. Improper Extrajudicial “Press Release”Statements with McDonough’s Enlarged “Mug

Shots” Conspicuously Displayed.874. On January 28, 2011, Trey Smith held a

highly prejudicial press conference with the NYSPafter McDonough’s arraignment during which hisguilt and the completion of the case was essentiallyannounced. A copy of Trey Smith’s written “PressRelease” is attached as Exhibit “H” and incorporatedherein by reference.

875. At his press conference, Trey Smith had anenlarged “mug-shot” of McDonough prominentlydisplayed.

876. At the time, Trey Smith gave a press speechreplete with statements likely to impairMcDonough’s right to a fair trial or made to advancehis own personal interests, especially following themonths of prosecution-biased media regarding theGJ investigation.

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877. Upon information and belief, in making thosestatements Trey Smith violated applicable provisionsof the N.Y.S. Code of Professional Responsibility thatprohibited him from making extrajudicial statementsthat might have impaired McDonough’s right to afair trial or were intended to manipulate the mediafor the advancement of his own personal interests.

878. In his press statement, Trey Smith essentiallypublicly announced that McDonough had committed“massive fraud perpetrated on the citizens” of thecounty that deprived all of them of their mostfundamental Constitutional right to vote and that hewas guilty of the seventy-four (74) forgery relatedfelonies charged.

879. Trey Smith stated, among other things, that:(a) his understanding of the case was first limited tothe information produced at the Lambertsen hearing;(b) although it was clear that the rights of numerousvoters were violated, it was not then clear who wasresponsible so he called on the NYSP to assist hisinvestigation because of the extent of the fraud,needfor investigation and possible forensic examination ofevidence; (c) “[to]gether with the [NYSP], [he]followed this case where the evidence led us. ... andeven the evidence of those [elected officials] who havecooperated must be viewed critically in this search forthe truth;” (d) “While some have admitted verylimited responsibility ... not surprisingly no one hascome forward to take full responsibility for themassive fraud perpetrated ...”; (e) Much of the truth ...was clouded when this investigation began. The hardwork, diligence and patience of many have brought agood measure of clarity to the facts”; (f) Inv. Ogden“poured over the documentary evidence and discerned

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patterns in that evidence which led to the indictmentunsealed today”; (g) “evidence was presented over thecourse of six (6) days”; and (h) all citizens werevictimized by the [defendants’] misappropriation ofthe votes of others, which is a fundamental right ofequality, and that anyone who minimizes the crimesthereby trivializes a principle of equality that ourFounding Fathers believed to be a fundamental rightof all human beings.

D. Trey Smith Hired Robillard to Give Opinionthat Supported False Testimony and To Not

Perform Ink Analysis on Dickenson andThirteen (13) Other Crucial AAB for Payment of

One Hundred Thousand Dollars.

880. On June 10, 2011, Trey Smith moved tocompel the handwriting samplers from onlyMcDonough and LoPorto, almost six months afterindictment,

881. At the time, the only purported evidence insupport of almost all of the charges againstMcDonough was the false and improper lawenforcement opinion testimony of Ogden.

882. Nonetheless, Trey Smith did not seekhandwriting samplers from McGrath, McInerney,Brown, Dan Brown or any other Dem C/O alleged inhis application for DNA to have committed the ABforgery in conspiracy.

883. Once again, Trey Smith did not obtain theservices of a law enforcement Forensic DocumentExaminer (“FDE”) or handwriting expert.

884. Instead, on or about June 2011, Trey Smithretained purported private FDE Robillard tocompare McDonough’s handwriting with the false

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AB Agent and Excuses on the questioned AAB andconduct ink and indentation forensic analysis ofthem.

885. Notably, a routine computer search at thetime of hiring would have revealed that Robillard isidentified as “a paid professional liar for hire” by oneof his peers.

886. A routine computer search at the time wouldhave revealed that Robillard’s qualification to testifyas an expert was the subject of the U.S. SupremeCourt case of Delaware v. Fensterer, 474 U.S. 15(1985) because he gave an opinion in support of aprosecution theory without being able to recall thescientific method he used to come to that conclusion.

887. A routine computer search at the time wouldhave also revealed that Robillard was a supervisor ofthe FBI crime laboratory DNA Unit before itsreorganization following highly-publicizedinvestigations by the government concerning allegedimproper hair and fiber, ballistics and other forensiclaboratory services during which it was reported headmitted to ordering a subordinate to destroy theresults of proficiency tests that were all substandard.

888. On September 26, 2011, McDonough gavehandwriting samplers to Robillard.

889. However, the record facts prove that Robillardessentially became part of the prosecution team andacted closely with Trey Smith and Ogden toformulate purported opinion and indentation“evidence” in support of the their prosecution theoryagainst McDonough.

890. Relevant letters and records prove that TreySmith essentially told Robillard what findings and

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opinions were needed to support every count of theindictment, witness testimony and purportedprosecution theory against McDonough. A copy ofTrey Smith’s self-explanatory letter of July 22, 2011which shows the same is attached as Exhibit “I” andincorporated herein.

891. The record facts prove Trey Smith did notrequest Robillard to perform a handwritingcomparison concerning the AAB in accordance withthe established standards of forensic practice toensure a proper, objective handwriting and forensicexamination of the AAB.

892. To the contrary, Trey Smith providedRobillard a copy of the indictment and a summary ofwhat he called the “evidence” against McDonoughrelated to each count thereof.

893. Trey Smith and Ogden told Robillard thetheory of the prosecution and what AB Agent andExcuses were alleged to be false and have beenwritten by McDonough.

894. Later, after the prosecutions of McInerney,Brown and Renna were forced by the supervisoryNYSP, Trey Smith gave Robillard charts explainingAAB entry each Dem C/O admitted they made oralleged was written by McDonough by count of theindictment.

895. Trey Smith effectively gave Robillard theanswers to the questions and paid him to give theopinion “needed” to support the theory of prosecutionand the fabricated false testimony of McGrath,O’Malley, Brown and others.

896. On December 9, 2011, about five weeks beforetrial, Trey Smith disclosed the purported report of

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the analysis of handwriting comparison by Robillard,dated December 1, 2011, in which he essentially gavethe opinion that McDonough wrote the AB Agentsand Excuses on almost all of the AAB for which hestood indicted.

897. In his report, Robillard gave the opinion thatessentially all of the false AB Agent and Excuses onthe questioned AAB were written by McDonough.

898. Robillard was paid approximately one-hundred thousand ($100,000.00) dollars for hishandwriting comparison, ink and indentationanalysis, report and opinion testimony beforeanother Grand Jury and the trials of McDonough,

899. The disclosure provided was limited to thereport of the expert and did not include any rawdata, procedures utilized, standards applied or otherdocuments regarding the matter. Trey Smithdisclosed that voluminous information on the eve oftrial after denying requests for its earlier disclosureand the curriculum vitae of Robillard.

900. Not surprisingly, Robillard’s report supportedthe preposterous prosecution theory and Ogden’simproper false opinion testimony before the GrandJury in all material respects.

901. However, McDonough did not write the ABAgent and Excuses on all of these AAB and thehandwriting on many of them does not appear tomatch his known samples or the ones Robillarddictated he write in faster than his normal writingspeed when given.

902. In fact, as discussed below, Robillard, Ogdenand Trey Smith purposely did not perform arelatively quick and inexpensive ink analysis on

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those fourteen (14) AAB that McInerney, DeFiglioand Galuski obtained before September 10, 2009 thatBrown, Dan Brown or another Dem C/O possessedand filed on September 10, 2009 and were completedentirely in the same ink because that evidence alonewould have exonerated McDonough, disproved theprosecution theory and proved the falsity of thetestimony of Robillard, Ogden and McGrath.

903. Upon information and belief, on or about Juneor July 2011, Robillard agreed and conspired withOgden and Trey Smith to give fabricated false andimproper forensic expert opinion testimony infurtherance of the conspiratorial scapegoatprosecution.

XXX. McDonough Exposed ScapegoatProsecution in Post-Indictment Motion.

Martiniano Disclosed Further Evidence ofScapegoat Prosecution.

904. On February 24, 2011, McDonough filed amotion to disqualify Trey Smith and dismiss theindictment in which he exposed the conspiratorialscapegoat prosecution to protect the guilty Dem C/Ofrom prosecution, essentially by stating those recordfacts then known.

905. McDonough’s motion was reported in the localnews media and caused the scheme to scapegoatMcDonough to begin to unravel.

906. At various times thereafter, Trey Smith gavepatently incredible excuses for his conduct andattacked all who questioned it.

907. The record facts show that thereafter TreySmith variously claimed, among other things, that:(a) Martiniano and Renna were mistakenly not

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interviewed, not credible or refused to givestatements; (b) admissible evidence was missed bymistake or rejected because it concerned mattersbeyond his authority; (c) McDonough’s attorney wasa liar, committed perjury and controlled an FBISpecial Agent; (d) he had “trust issues” with the FBIAgent conducting an investigation into McDonough’scomplaint of scapegoat prosecution and claimed thatagent had character flaws and engaged inmisconduct to end the prosecution; (e) BOEemployees Bugbee and Sweeney were complicit inMcDonough’s alleged crimes; and, (f) Sr. Inv. O’Brienhad engaged in misconduct, been disciplined andforced to retire.

A. Martiniano Disclosed Admissions Made byBrown and McInerney and McNally’s Advice to

Him Not to Come Forward.

908. The next day, on February 25, 2011,Martiniano came forward and disclosed in a swornstatement to a private investigator that the NYSPnever interviewed him, Brown and McInerney toldhim they were going to use the AAB gathered onSeptember 14, 2009 to forge signatures onto ABenvelopes and McNally told him that he should notcontact the NYSP or Trey Smith and disclose thefacts he knew about the matter because “it will all beover soon.”

909. Immediately, Trey Smith publicly impugnedMartiniano’s credibility and integrity in the newsreports and court papers.

910. At the same time, Brown publicly calledMartiniano a liar and denied any guilt during a press

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conference, but Brown’s comments were proven to belies.

911. Martiniano’s statements later proved to betrue.

912. Still, Trey Smith later called Martiniano as awitness at trial only to impeach him.

913. Trey Smith took no action against McInerneyor Brown with that new evidence.

914. Similarly, when McDonough in an affidavitfiled with the court disclosed the facts of September24, 2009 which incriminated Brown and McInerney,Trey Smith essentially defended Brown andMcInerney in a memo to Ogen dated February 28,2011, with the following comment: “I think we havealready established that he has a credibility problem;I what find really interesting is how he is now reallyblowing in not just McInerney, but John Brown aswell.”

915. Upon information and belief, many of thevoluminous memorandum, letter, emails and otherrecords maintained by Trey Smith and the NYSPconcerning Trey Smith’s investigation containcontradictory and inconsistent statements and othercomments made by Trey Smith and Ogden thatevidence the alleged conspiracy and its objectives.

B. McDonough and Newspaper ReporterDiscovered Move Evidence of the Guilt of

McInerney and Renna That Trey Smith andOgden Once Again Ignored.

916. After indictment, McDonough reviewednumerous AAB on file at the BOE and foundnineteen (19) filed in the 2007 general election on

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which McInerney was the AB Agent, all of which alsoappeared to have been completed in the samedistinct handwriting as the registration card ofMcInerney and his mother Shirley McInerney.

917. At that time, McDonough also found thirty-seven (37) AAB filed in the 2008 elections that werecompleted in McInerney’s handwriting and he wasthe AB Agent on them.

918. Many of those 2007 and 2008 also hadsimilarly stated vacation Excuses.

919. As stated, in 2010 Bugbee gave Trey Smithmany of those 2007 and 2008 AAB.

920. Trey Smith told Bugbee that the NYSP wasnot interested in past AB forgery and he did not havethe authority to prosecute those crimes.

921. On or about 2011 but prior to indictment,McDonough’s counsel provided many of those sameAAB to Trey Smith and was given the sameresponse.

922. Notably, the office of district attorney was themost significant local election in 2007 and it wasdetermined by only a slight margin.

923. None of those 2007 and 2008 AAB werecompleted by McDonough or Bugbee.

924. At that time, however, a Troy Recordnewspaper reporter needed only to approach three ofthose voters to discover from them that their AABhad false information and signatures.

That newspaper’s related March 7, 2011 article isincorporated by reference.

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XXXI. NYSP Learned Trey Smith Lied AboutMcInerney and Brown. NYSP and FBI

Commenced Investigations without TreySmith’s Knowledge. NYSP and FBI InterviewMcDonough without Trey Smith’s Knowledge.

Trey Smith Quashes Federal Investigation.McInerney Forced to Enter Into Favorable

Cooperation Agreement.

A. Supervisory NYSP Questioned Trey Smith’sConduct.

925. Upon information and belief, Sr. Inv. O’Brienbegan to question Trey Smith’s actions in the fall of2009 when it became apparent he focused hisinvestigation on McDonough.

926. As stated, at the time, Trey Smith told thesupervisory NYSP that McInerney and Brown couldnot be prosecuted due to lack of evidence tocorroborate accomplice testimony.

927. Upon information and belief, once McDonoughexposed the falsity of that statement and otherrelevant facts in his post-indictment motion, thesupervisory NYSP again had concerns about theinvestigation, prosecution and Trey Smith’s conduct.

928. Upon information and belief, the supervisoryNYSP then began to take action to conduct a properinvestigation and prosecution of the AB forgery.

B. McDonough Made Complaint about CriminalViolation of Federal Civil Rights. FBI Assigned

to Investigate Scapegoat Prosecution and/orPast AB Forgery.

929. On or about April 2011, McDonough contactedthe U.S. Attorney’s Office through, counsel and

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requested an FBI investigation into the criminalviolation of his civil rights by the unlawfulprosecution and the decades of AB forgery DeFigliodisclosed to Trey Smith.

930. In response, on or about May 2011, the FBI,through an agent in the public corruption unit,began to investigate McDonough’s complaint andpast AB forgery.

931. It is known that FBI Special Agent McDonaldwas assigned to conduct that investigation at therequest of the US Attorney’s Office.

C. Trey Smith Acted to Derail FBI Investigation

932. Upon information and belief, on or about April26, 2011, Trey Smith learned from a news reporterthat the FBI was conducting a federal investigationconcerning the matter.

933. Trey Smith immediately sent letters to theU.S. Attorney Office and FBI dated April 27, 2011and April 28, 2011, respectively.

934. Those letters show that Trey Smith wasconcerned about an FBI investigation because itwould discredit his work and for other reasonsdiscussed. See, Exhibit A.

935. Trey Smith publicly stated that he welcomed afederal investigation or take-over of the matter andsought that assistance in the past but it was declined

936. Upon information and belief, however, TreySmith took action to derail it.

937. Upon information and belief, Trey Smithleaked to the newspapers variously that there was nofederal investigation, the U.S. Attorney confirmedthere was no investigation, he was aware of the FBI

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investigation, and the FBI was assisting the NYSPin his investigation.

938. Upon information and belief, Trey Smithfalsely told Bugbee that he was working inconjunction with the NYSP, FBI and U.S. Attorney’sOffice in investigating the AB forgery.

939. Upon information and belief, Trey Smithleaked the name of the FBI agent conducting theinvestigation to impair his ability to get witnesses orsuspects to talk to him.

940. Trey Smith leaked information to the newsmedia that impaired the federal investigation andblamed the FBI Special Agent for doing it, but thenadmitted he did it.

941. Upon information and belief, at all timesrelevant, Trey Smith acted to keep his co-conspirators from cooperating with the FBI anddisclosing the scapegoat prosecution.

D. Supervisory NYSP Learned Trey Smith’sAssertion that McInerney and Brown Could Not

Be Prosecuted was False. NYSP BeganIndependent Investigation to Ensure Their

Arrest and Prosecution.

942. Upon information and belief, on or about May21, 2009 or soon thereafter, the FBI also confirmedthat Trey Smith’s statement to the NYSP thatMcInerney and Brown could not be prosecuted wasnot true because, in fact, the voter testimony andforged AB documents were sufficient to corroboratethe testimony of any accomplice, especially DeFiglio.

943. Upon information and belief, on or about May25, 2011, the supervisory NYSP began to conduct an

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independent investigation of McInerney without theknowledge of Trey Smith due to their frustration,concern, dissatisfaction and lack of trust in him.

944. Upon information and belief, from on or aboutMay 25, 2011 until on or about August 4, 2011, thesupervisory NYSP directed a rudimentaryinvestigation that led to overwhelming proof of theguilt of McInerney, Brown and Renna.

945. The NYSP obtained that evidence by simpleinvestigation and without the need for costly DNA orforensic expert services.

946. That evidence consisted of the same knownand easily discoverable testimony and AB documentsthat Trey Smith ignored or purposely did not obtainthroughout.

947. The NYSP gathered AAB, BOE records andstatements from witnesses, including Suozzo thatwas sufficient to convict McInerney for the forgery ofabout fifty (50) AAB that appeared to have beenentirely forged in his handwriting. Those AAB, BOErecords and statements are incorporated herein byreference.

F. Sr. Inv. O’Brien and FBI InterviewedMcDonough without Trey Smith’s Prior

Knowledge on June 1, 2011.

948. Upon information and belief, at the same timethat Trey Smith took action to derail the FBIinvestigation, Sr. Inv. O’Brien sought the assistanceof the FBI and, it is believed, looked for the federalauthorities to take the case over.

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949. Consequently, On May 27, 2011, the FBIrequested McDonough to meet with the FBI and Sr.Inv. O’Brien at the FBI building to be interviewed.

950. On June 1, 2011, McDonough met with Sr.Inv. O’Brien and FBI at their request and wasinterviewed about the unlawful prosecution and Msknowledge of the activities of the Dem C/O related tothe AB forgery.

951. Sr. Inv. O’Brien expressly conditioned themeeting upon McDonough’s agreement not todisclose it to Trey Smith or any person until theNYSP task was completed.

952. Trey Smith had no knowledge about thatmeeting until Ogden informed him of it on or aboutAugust 2, 2011.

953. McDonough was informed at that time thatthe supervisory NYSP were aware that Trey Smithdid not properly investigate or prosecute the matter.

954. Obviously, the meeting would never havetaken place if the NYSP supervisory personnel hadconfidence and trust in Trey Smith’s investigationand related conduct.

955. Its occurrence alone is beyond extraordinaryand speaks volumes.

956. the NYSP later again showed its lack ofconfidence and trust in Trey Smith’s investigationand conduct by arresting McInerney without hisprior knowledge.

G. Trey Smith Meets with U.S. Attorney Officeand FBI. Declared Had Trust Issues with FBI

Agent and Quashed Independent FBIInvestigation on June 2, 2011.

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957. On June 2, 2011, Trey Smith met with theFBI, U.S. Attorney’s Office and NYSP.

958. Upon information and belief, Trey Smithdemanded that meeting purportedly for the primaryreason of discussing a coordination of federal andstate investigations into the AB forgery and,especially, the prospect of offering McInerney acooperation agreement.

959. Upon information and belief, however, TreySmith actually then sought to quash the federalinvestigation and did so at that time.

960. Upon information and belief, at that meeting,although Trey Smith claimed that he welcomed afederal investigation he stated that he had “trustissues” with the FBI Agent conducting it because hehad commenced an investigation, interviewedMcDonough’s attorney and interviewed DeFiglio andother witnesses without his knowledge.

961. Upon information and belief, at that meeting,Ogden also expressed concern that if the FBIinterviewed witnesses or subjects and gavecooperation agreements it might impair Trey Smith’s(NYSP) investigation.

962. Upon information and belief, at that meeting,the FBI told Trey Smith that the attorneys forseveral suspects said their clients did not trustSmith.

963. Upon information and belief, in fact, Sr. Inv.O’Brien did not trust Trey Smith and the supervisoryNYSP were dissatisfied with his investigation andprosecution of the matter.

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964. At that meeting, Trey Smith was required toadmit that there was more than enoughcorroboration to prosecute and convict McInerney,Brown and others.

965. At that meeting, Trey Smith indicated that hisinvestigation would be done soon.

966. However, at that time, Trey Smith alsoquashed the independent FBI investigation intoMcDonough’s complaint of public corruption byrequesting that it no longer actively investigate thematter independently but merely coordinate andassist the NYSP. A copy of unclassified but redactedFBI reports dated June 3, 2011 (3 pages), June 9,2011 (2 pages), June 13, 2011 (1 page), July 20, 2011(1 page) and August 5, 2011 (1 page) that confirm theabove facts are attached as Exhibit “J” andincorporated herein by reference.

967. Thereafter, Trey Smith continued to tell thesupervisory NYSP that the arrest and prosecution ofMcInerney, Brown and others was imminent.

968. Upon information and belief, however, onceTrey Smith realized that Sr. Inv. O'Brien was awarehe had lied about not being able to prosecuteMcInerney and Brown and that it was inevitablethey were going to be arrested, he madearrangements for McInerney to plead guilty on orabout July 15, 2011, to an SCI charging a felony (ormisdemeanor) in satisfaction of all charges thatcould be filed before any cooperation was provided.

969. Thus, Trey Smith attempted to feignincompetence or poor exercise of judgment by givingMcInerney the same immunity with impunity thathe gave McGrath.

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970. However, Sr. Inv. O’Brien prevented thatdisposition.

H. McInerney Entered Cooperation Agreementon July 22, 2011

971. Thereafter, on July 22, 2011, Trey Smith gaveMcInerney a cooperation agreement pursuant towhich he was required to provide complete truthfulcooperation in return for a plea of guilty to one felonyand ninety-day work order in satisfaction of allcharges related to the 2009 AB forgery, without thewaiver of the right to appeal.

972. Upon information and belief, however,McInerney would not agree to provide the requiredcooperation unless the NYSP and FBI agreed not topursue his arrest or prosecution for any of the ABforgery he committed in past years, especially 2007.

973. Upon information and belief, the supervisoryNYSP and FBI would not agree to abide by the termsof McInerney’s cooperation agreement unless he wasfully debriefed and it was determined that hisinformation was complete, truthful and accurate.

974. Upon information and belief, Trey Smith andMcInerney continued to postpone any debriefingbecause they knew that McInerney could not tell thetruth without disclosing the conspiracy to scapegoatprosecute McDonough and incriminate all thoseinvolved in the AB forgery, conspiracy and the cover-up of them.

I. Trey Smith Told That FBI InterviewedMcDonough without His Knowledge Trey Smith

Sent Email to Ogden Attacking FBI Agent,Defense Attorney and Implying that McNally

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May Have Committed AB Forgery withMcInerney.

975. Upon information and belief, on August 2,2011, FBI Agent McDonald told Trey Smith, withagreement of Sr. Inv O’Brien, that the proposed pleabargain was not satisfactory, proper criminal justiceprocedure required McInerney to provide complete,truthful information about any crimes he may havecommitted before he received any considerationregarding his arrest, prosecution or sentencing,including any AB forgery he committed in 2007 or2008.

976. Upon information and belief, the supervisoryNYSP and FBI knew that they already had obtainedand could gather more evidence to convict McInerneyof many AB forgery and other serious electionscrimes he committed in 2007 and 2008.

977. Upon information and belief, Trey Smith alsostaged a confrontation with FBI Special AgentMcDonald at a scheduled initial debriefing ofMcInerney held on or about August 2, 2011, so thatit abruptly ended and he had time to take action toderail the federal investigation, protect McInerneyfrom prosecution for elections crimes committed in2007 and 2008 and continue the wrongfulprosecution of McDonough.

978. Upon information and belief, on August 2,2011, Ogden told Trey Smith that the FBI hadalready interviewed McDonough without hisknowledge.

979. As a result, on August 3, 2011, at 5:06 a.m.,Trey Smith sent an email to Ogden in which hepostulated a conspiracy theory that ironically applies

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to the scapegoat prosecution and transposed baselessand absurd allegations of criminal and/or unethicalconduct upon FBI Agent McDonald, McDonough andhis attorney. A copy of Trey Smith’s email isattached as Exhibit “K” and incorporated herein.

980. Upon information and belief, Trey Smithsuccumbed to the pressure of continuing thescapegoat prosecution, the cover-up and theprotection of McInerney and others.

981. Upon information and belief, in his panic, TreySmith may have provided the actual reason for thescapegoat prosecution and its cover-up by stating: “Iwould assume that McDonough ... implicatedMcNally in a conspiracy with McInerney to win theDA’s race in 2007. All McDonough would have to dois say that he overheard, [them] discussing [it], andthat would be sufficient for the Feds to bringconspiracy allegations against McNally. I alsoassume that presently McDonald [sic] has nothing tocorroborate McDonongh ‘s allegations. “

982. In his memo, Trey Smith essentially toldOgden and Fancher they had to decide where theystood concerning their investigation and impugnedthe integrity of the FBI agent who sought to obtainMcInerney’s complete truthful information beforebeing immunized by stating that he was a “willinginstrument” of defense counsel and “very strangeindividual” who “suffered from a number of defects,notably judgment and ambition.”

983. Upon information and belief, Trey Smith wasdoing all he could to prevent McInerney from tellingthe truth by giving him the same deal he gaveMcGrath; i.e. immunity with impunity before he

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gave any information that in ipso factor breach of thecooperation agreement that would never berescinded or enforced. And, that is precisely whatthey later did.

984. Later, to continue the wrongful prosecution,Trey Smith falsely told the trial court that he hadprior knowledge of the NYSP and FBI interview ofMcDonough and had directed Sr. Inv. O’Brien to askspecific questions but he purposely did not when, intruth, Trey Smith had no prior knowledge of themeeting which was conditioned upon its non-disclosure to him.

985. During the trial, Trey Smith accused Sr. Inv.O’Brien of misconduct related to another NYSPinvestigation and was forced to retire.

986. In any event, McInerney had not provided anycooperation by August 5, 2011.

987. Therefore, on or about August 5, 2011, a NYSPCaptain told the FBI that the NYSP would no longerwait for Trey Smith to make decisions concerning theprosecution of McInerney and others before it tookits own action. See, FBI Reports, Exhibit J, above.

J. McDonough Gave NYSP AAB that ProvedRenna Forged AAB for Testa.

988. In that regard, after McDonough waswrongfully indicted for the forged Testa AAB, hediscovered that the distinctive handwriting on thatAAB also appeared to be on other AAB and partyenrollment cards for 2007 and 2008 that werereleased to, or filed by, Renna.

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989. McDonough provided copies of about five (5) ofthose applications to the FBI and NYSP when theymet in July 2011.

990. Later in 2011, McDonough’s counsel gave thesupervisory NYSP copies of fifteen (15) other AABfiled in 2007 that also appeared to be fully orpartially completed in the same handwriting thatappeared to be on the Testa AAB.

991. Upon information and belief, the NYSP theneasily obtained evidence sufficient to convict Rennafor the forgery of those documents, including theTesta AAB, without the need for forensic or DNAevidence.

992. Upon information and belief, the NYSP alsoobtained the depositions and forged AAB of votersDeFabio, Tangredi and Petit that alone wassufficient evidence to convict Brown.

XXXII. Supervisory NYSP IndependentInvestigation Led to Arrest of McInerney andImminent Arrest of Brown and Renna without

Trey Smith’s Knowledge.

993. Consequently, on August 8, 2011, thesupervisory NYSP arrested McInerney on severalfelony complaints for AB forgeries he committed in2008 and/or 2007, The related accusatoryinstruments are incorporated herein by reference.

994. At that time, the supervisory NYSP also toldTrey Smith that the arrest of Brown and Renna wasimminent.

995. Trey Smith did not hold a press conference topublicly disgrace or announce the conviction of themost prolific AB forger in county history.

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996. Trey Smith did not indict McInerney on evenonly dozens of the easily provable hundreds of ABforgery crimes he committed, or seek hisimprisonment.

997. Instead, Trey Smith quietly arranged hisguilty plea to one felony which he initially publiclydenied was a jurisdictionally defective conviction andproffered a fallacious argument in court papers forits validity, but then admitted the defect incommunications with the NYSP. Those papersrelated to that matter are incorporated herein byreference.

XXXIII. Trey Smith’s Actions to ContinueProsecution and Cover-up Conspiracy.

998. Upon information and belief, as a result of theFBI and supervisory NYSP actions Trey Smith wasno longer able to keep his promise not to prosecuteMcInerney and Brown.

999. Upon information and belief, at all times whilethe NYSP and FBI conducted their owninvestigations, Trey Smith took action to continuethe scapegoat prosecution, cover-up the conspiracyand protect McInerney, Brown and Renna frommeaningfully prosecution and, especially, keep themfrom telling the truth that would have exoneratedMcDonough and further exposed their conspiracy toscapegoat prosecute him.

1000. Upon information and belief, there is noother plausible explanation for the otherwiseinexplicable later conduct of Trey Smith, McInerney,Brown and Renna, as discussed.

A. McNally Disqualify Himself and Trey SmithObtained an Order Extending His Authority to

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Protect Mclnerney from Prosecution for 2007and 2008 Crimes.

1001. In reaction to the NYSP arrest ofMcInerney, in July 2011, more than a year aftertelling Bugbee and McDonough’s attorney that hecould not do so, Trey Smith perfunctorily hadMcNally again disqualify himself without writtenmotion or legal basis and obtained an Orderextending his authority to prosecute McInerney forthe AB forgery he committed in 2007 and 2008. Therelevant letters of Trey Smith and McNally to thecourt dated July 18, 2011, and July 19, 2011,respectively, are incorporated herein by reference.

B. Trey Smith Interviewed McInerney withoutthe NYSP or FBI Present

1002. Upon information and belief, for aperiod of time thereafter, Trey Smith andMcInerney’s attorney told the supervisory NYSP thatMcInerney would schedule a meeting to providecomplete truthful information to the NYSP and FBIprior to his guilty plea.

1003. Upon information and belief, however,Trey Smith misled the supervisory NYSP for a periodof time so that he could meet with McInerney andfabricate his false statement.

1004. Upon information and belief, on anumber of occasions, Trey Smith met withMcInerney for hours without the knowledge of thesupervisory NYSP or FBI and “went over” thepurported cooperation he was going to provide.

XXXIV. Fabricated False Statements ofMcInerney, Brown and Renna.

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A. Trey Smith Fabricated McInerney’s FalseStatement to Continue Prosecution.

1005. Thereafter, when the NYSP and FBIfinally met with McInerney to obtain his cooperation,Trey Smith announced that he had already done so.

1006. Upon information and belief, Sr. Inv.O’Brien and the FBI present had reasonable cause tobelieve that McInerney’s purported cooperation wasnot complete or truthful.

1007. Upon information and belief, Sr. Inv.Ogden had reasonable cause to believe that theinformation McInerney gave was materially falseand previously fabricated with Trey Smith.

1008. Upon information and belief, TreySmith allowed McInerney to prepare his swornwritten statement over a period of time with theassistance of his attorney and/or Trey Smith. Thestatements that were drafted and/or signed byMcInerney and any related correspondence isincorporated herein by reference.

1009. Upon information and belief, TreySmith fabricated the false statement of McInerney toensure that he would not tell the truth or providecomplete information about all the relevant facts but,instead to be as consistent as possible with otherfalse testimony fabricated against McDonough,support the prosecution theory and continue thescapegoat prosecution.

1010. Upon information and belief, McInerneygave his false statement in furtherance of thewrongful prosecution of McDonough and to cover-upthe conspiracy.

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1011. Upon information and belief, McInerneydid not tell the truth about the AB forgery because itwould have exonerated McDonough, proven the guiltof all the Dem C/O for the AB forgery and/or perjuryand proven the conspiratorial scapegoat prosecution.

1012. Upon information and belief, McInerneyintentionally failed to exonerate McDonough, fullyincriminate the Dem C/O who committed the ABforgery in conspiracy with him or admit that the ABforgery was committed by the Dem C/O acting inconspiracy.

1013. In particular, McInerney denied havingforged the AB documents of Suozzo even though hedid so then in conspiracy with the other Dem C/O aswell as in the past and was the only person to everhave had any contact with him.

1014. At trial, Suozzo also essentially testifiedthat he was recruited by McInerney to vote by ABand he had contacted him in the past, but not in2009.

1015. Upon information and belief, McInerneyforged the Suozzo AAB in conspiracy with other DemC/O, knew who had written false information on itand thereafter forged his AB.

1016. Upon information and belief, however,Trey Smith “needed” McInerney to tell the fabricatedfalsehood that he did not forge the Suozzo ABbecause McDonough’s DNA was allegedly found on itand his false testimony allowed for an inference insupport the prosecution theory that it was forged byMcDonough at the BOE.

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1017. On the other hand, if McInerney toldthe truth it would have completely debunked theprosecution theory and itself exonerate McDonough.

1018. Among other false statements,McInerney falsely incriminated McDonough bysaying that he gave McDonough the names of severalvoters, including Robertson, to falsely vote and thathe was “certain that those AB never left the BOE, andthat they were forged by McDonough while in hisoffice.” Ogden’s memo dated November 1, 2011 to thesupervisor of the NYSP lab confirming the same isincorporated herein by reference.

1019. At the time, McInerney also did notadmit that he had helped Jermaine Joseph andDonnell Paterson, two Hudson Valley Collegestudents, establish city residency so they could getreduced tuitions, paid them to enroll in the WFP in2009 and forged their AB documents.

1020. McDonough and O’Malley had noknowledge about those facts at anytime. B. TreySmith Fabricated Renna’s False Statements toContinue Prosecution.

1021. Upon information and belief, on orabout September 20, 2011, and October 18, 2011,Renna was interviewed by Ogden and Fancher.

1022. Thereafter, Renna gave sworn writtendepositions on October 20, 2011, and November 9,2011. Renna’s two depositions are incorporatedherein by reference.

1023. In his October 20, 2011 deposition,Renna confirmed that he admitted to having forgedthe Testa AAB in 2009 because McInerney askedhim to help “get votes.”

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1024. In his October 20, 2011 deposition,Renna also confirmed that he admitted to havingforged at least eleven (11) AAB in the 2007 generalelection.

1025. In his October 20, 2011 deposition,Renna stated that he almost always gave the AABthat he filed at the BOE to McDonough or MarySweeney because he “knew they would not bequestioned” but admitted that he never discussedforging AB or AAB with anyone or witnessed anyoneforge them in his presence.

1026. Therefore, it is clear that Renna wasasked specifically about McDonough.

1027. In his November 9, 2011, depositionRenna admitted that he knew voter Robertson andentirely forged her AAB and AB.

1028. In that deposition, Renna also statedthat he was “relatively certain that [he] completed []Testa's [AB] while [he] was in [] McDonough's office... [McDonough] was in the office when [he] voted the[AB]” and did not recall completing the Robertson ABat that time but looking at the documents it appearsthat he completed the AB for each of those votersthen.

1029. Upon information and belief, on one ormore occasions prior to November 9, 2011, andthereafter, Trey Smith directly and/or indirectlythrough McInerney and/or others acted in conceitand conspiracy with Renna to fabricate the falsestatements and testimony he gave on October 20,2011 and thereafter to incriminate McDonough insupport of the prosecution theory and continuation ofMs wrongful prosecution and conviction.

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1030. Upon information and belief, prior toDecember 5, 2011, Renna was, in fact, represented inthe negotiation of his cooperation agreement andplea bargain by McInerney’s attorney or an attorneyfrom his office.

1031. Upon information and belief,subsequent to September 20, 2011, Smith andMcInerney’s attorney engaged in plea negotiationson behalf of Renna.

1032. Upon information and belief, on one ormore occasions prior to November 9, 2011, and attimes thereafter, Trey Smith met with Renna tofabricated his false testimony.

1033. On December 5, 2011, Renna executed acooperation agreement pursuant to which he wasrequired to provide complete truthful cooperation inreturn for a plea of guilty to one felony andsentenced of two hundred (200) hours communityservice in satisfaction of his 2009 AB forgery.Renna’s cooperation agreement is incorporatedherein by reference.

1034. Thereafter, on or about December 6,2011, Renna testified before a Grand Juryconsidering charges against Galuski, Campana andBrown and gave additional fabricated falsetestimony against McDonough.

1035. At the Grand Jury, Renna falselytestified that he entirely forged the AAB and AB ofTesta and Robertson on September 14, 2009, in frontof McDonough while in his office and that he traceforged the voter signatures from registration cardsMcDonough gave him. Renna’s relevant Grand Jurytestimony is incorporated herein by reference.

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1036. In truth, Renna knew that McDonoughhad only handled the Testa and Robertson ABdocuments in assisting him at the counter when hefiled their AAB.

1037. That fact also explains why Trey Smithwas so persistent in having the NYSP lab use newand “better” methods to test for the presence of DNAon those specific AB envelopes.

1038. However, certain NYSP memos showthat although McInerney and Renna were obviouslyacting in concert and conspiracy with Trey Smith tocontinue the wrongful prosecution of McDonoughthrough their fabricated testimony, they could notkeep the false stories straight.

1039. Thus, for example, in a November 1,2011 memo to the supervisor of the NYSP lab, Ogdensaid that McInerney told him that he gave the nameof several voters, including Robertson, to McDonoughfor AB voting and that he was “certain that those ABnever left the BOE, and that they were forged byMcDonough while in his office.”

1040. Yet, in a December 26, 2011 memo tothe lab supervisor, Ogden stated that Renna told himthat “he had forged the ballot inside [the RobertsonAB envelope].” Those emails are incorporated hereinby reference.

1041. Those record facts make it clear thatTrey Smith, McInerney and Renna fabricated falsetestimony against McDonough in furtherance of theirconspiracy, but also failed to get their storiesstraight quickly enough under the pressure of theactions of the supervisory NYSP.

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1042. It is also clear from the record facts thatthe inference Trey Smith intended to have drawnfrom the fabricated false testimony of McInerney andRenna was that the Suozzo, Robertson and Testa ABenvelopes, and, therefore, all the AAB in question,were forged by McDonough in the BOE “forgeryfactory.”

1043. Again, voters Robertson and Testa werenot public housing residents and there never wouldhave been anything to connect Renna to the forgeryof their AB envelopes or his involvement in said ABforgeries if McDonough and the supervisory NYSPdid not force his prosecution because Trey Smith andOgden coincidentally “missed” him during theirinvestigation (as they did Martiniano).

1044. Similarly, voter Suozzo was not a publichousing voter and if McInerney was not prosecutedas promised he would never have talked about thatforged AB.

1045. However, as discussed, thatorchestration and fabrication of false evidence wasruined by McDonough when he discovered that theTesta and Robertson AAB were forged entirely inRenna’s handwriting and Suozzo’s 2008 and 2007AAB had been forged in McInerney’s handwriting,which led Sr. Inv. O’Brien to force their prosecutions.

1046. Upon information and belief, TreySmith fabricated the false statement and testimonyof Renna to not tell the truth or provide completeinformation about all the relevant facts, but insteadto be as consistent as possible with other falsetestimony fabricated against McDonough, support

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the prosecution theory and continue the scapegoatprosecution.

1047. Upon information and belief, Rennagave his false statement and testimony infurtherance of the wrongful prosecution ofMcDonough and to cover-up the conspiracy.

1048. Upon information and belief, Rennaintentionally gave materially false information aboutthe AB forgery in his statement in order to continuethe scapegoat prosecution.

1049. Upon information and belief, Renna didnot tell the truth about the AB forgery because itwould have exonerated McDonough, proven the guiltof all the Dem C/O for the AB forgery and/or perjuryand proven the conspiratorial scapegoat prosecution.

1050. Upon information and belief, Rennaintentionally failed to exonerate McDonough, fullyincriminate the Dem C/ O who committed the ABforgery in conspiracy with him or admit that the ABforgery was committed by the Dem C/ O acting inconspiracy.

C. Trey Smith Fabricated Brown’s FalseStatements to Continue Prosecution.

1051. Upon information and belief, TreySmith was forced by the action of McDonough, thesupervisory NYSP and FBI to begin Grand Juryproceedings against Galuski and Campana in the fallof 2011.

1052. Upon information and belief, TreySmith leaked to local newspapers that he was alsopresenting a case against Brown at the same time.

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1053. Upon information and belief, Browntestified before the Grand Jury with counselpursuant to a waiver of immunity on October 27,2011 and December 14, 2011.

1054. Upon information and belief, Brown’sappearance before the Grand Jury was a rusebecause the supervisory NYSP were already awarethat Brown forged the AB documents of DeFabio,Tangredi and Petit that was sufficient to convict him.

1055. The NYSP obtained affidavits fromDeFabio and Tangredi on or about December 2, 2011,after Brown testified before the Grand Jury onOctober 27, 2011.

1056. Upon information and belief, onDecember 6, 2011, Brown executed a cooperationagreement pursuant to which he was required toprovide complete truthful cooperation in return for aplea of guilty to one felony and be sentenced solely indiscretion of the Court with Trey Smith’srecommendation of up to six months incarcerationand five years probation in full satisfaction of his2009 AB forgery and perjury. Brown’s cooperationagreement is incorporated herein by reference.

1057. On that same day, Brown gave a swornwritten deposition, Brown’s deposition isincorporated herein by reference.

1058. In his deposition and before the GrandJury, Brown gave fabricated false testimony aboutwhat happened in McDonough’s office on September14, 2009 that was consistent with the false GrandJury testimony of McGrath and O’Malley.

1059. In particular, Brown falsely stated inhis deposition that: (a) he saw McGrath gave

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McDonough an AAB and what seemed to be a falseExcuse for an older voter and McDonough then wroteinformation on that AAB; (b) he was in McDonough’soffice for about forty (40) minutes during which hesaw the AAB he brought to the BOE sitting onMcDonough’s desk; (c) he saw McDonough writing ondocuments but could not say for sure that they werethose AAB; and, (d) he saw O’Malley come in and outof the office but did not recall him sitting at a desk orwriting on any AAB.

1060. Brown’s false testimony was essentiallyconsistent with the false testimony of McGrath andO’Malley in support the prosecution theory thatMcDonough falsely completed all the AAB Brownfiled that day, but it was otherwise materiallycontradictory.

1061. Upon information and belief, on one ormore occasions prior to December 6, 2011, and attimes thereafter, Trey Smith met with Brown tofabricated his false testimony.

1062. Upon information and belief, TreySmith fabricated the false statement and testimonyof Brown to not tell the truth or provide completeinformation about all the relevant facts, but insteadto be as consistent as possible with other falsetestimony fabricated against McDonough, supportthe prosecution theory and continue the scapegoatprosecution.

1063. Upon information and belief, Browngave his false statement and testimony infurtherance of the wrongful prosecution ofMcDonough and to cover-up the conspiracy.

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1064. Upon information and belief, Brownintentionally gave materially false information aboutthe AB forgery in his statement in order to continuethe scapegoat prosecution.

1065. Upon information and belief, Brown didnot tell the truth about the AB forgery because itwould have exonerated McDonough, proven the guiltof all the Dem C/O for the AB forgery and/or perjuryand proven the conspiratorial scapegoat prosecution.

1066. Upon information and belief, Brownintentionally failed to exonerate McDonough, fullyincriminate the Dem C/ O who committed the ABforgery in conspiracy with him or admit that the ABforgery was committed by the Dem C/ O acting inconspiracy.

XXXV. Fabricated False Complaint MadeAgainst Sr. Inv. O’Brien. Trey SmithQuestioned Sr. Inv. O’Brien re FBI

Investigation. Trey Smith Asked if FBI“Bugged His Office” or Tapped His Telephones.

1067. Upon information and belief, sometimeafter Trey Smith learned that the FBI and Sr. Inv.O’Brien interviewed McDonough, that Sr. Inv.O’Brien was conducting an independentinvestigation into the AB forgery and arrestedMcInerney without his prior knowledge, Trey Smithand Ogden orchestrated a false personnel complaintand/or departmental charges to be made against Sr.Inv. O’Brien concerning an unrelated matter.

1068. Upon information and belief, that falsecomplaint and/or charges was made by Trey Smithwith the assistance of Ogden to quash theindependent NYSP investigation, impugn the

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credibility of Sr. Inv. O’Brien when subpoenaed byMcDonough to testify about the matters at trial andto force him to answer questions about a pendingFBI investigation.

1069. Subsequently, on the date or datesknown to Trey Smith, Ogden and the NYSP, Sr.O’Brien was ordered by his superiors to submit to acompelled interrogation by Trey Smith about thepurported leaking of information concerning TreySmith’s investigation.

1070. Upon information and belief, however,when Trey Smith questioned Sr. Inv. O’Brien, heasked questions solely about his knowledge of theFBI investigation and, specifically, whether the FBIhad “bugged his office” or “tapped his phone” duringits investigation of McDonough’s complaint of publiccorruption, so it was stopped by the NYSP.

1071. Upon information and belief, during theinterrogation, Trey Smith was nervous and perspiredso profusely that sweat dripped down his face andwet his clothes.

XXXVI. Extraordinarily Favorable PleaAgreements and Defective Convictions.

1072. Subsequently, Campana and Galuskiwere indicted for a few felonies each.

1073. Thus, McDonough forced the arrestand/or ostensible prosecutions of McInerney, Brown,Remia, Campana and Galuski almost two years afterthe AB forgery they committed in conspiracy butonly because of the integrity and commendableactions of Sr. Inv. O’Brien and an FBI agent, both ofwhom Trey Smith labeled as being criminals.

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1074. However, Trey Smith gave immunityagreements to one of the three primary perpetratorsand extraordinarily favorable cooperationagreements and plea bargains to the other two whomhe initially told would not prosecute after misleadingand lying to the NYSP.

1075. Trey Smith also blindly accepted thedenial of guilt from about seven other people theevidence directly implicated in criminalresponsibility.

1076. Thereafter, Trey Smith gaveextraordinarily favorable plea bargains, sentencesand other dispositions to those Dem C/O at leastostensible prosecuted.

A. Trey Smith Arranged a JurisdictionallyDefective Conviction for McInerney.

1077. Upon information and belief, as stated,despite the fact that McInerney committed hundredsof readily provable AB forgery crimes in 2009, 2008and 2007, Trey Smith agreed to accept one felonyconviction and a sentence of a minimum number ofhours work order.

1078. Upon information and belief, TreySmith also arranged for McInerney to plead guiltybefore any cooperation was given, as stated.

1079. However, Trey Smith cancelled thatplea deal after the supervisory NYSP indicated thatthey would then arrest McInerney for AB forgery hecommitted in 2007 and 2008 because they were notsatisfied with the manner in which the matter wasbeing handled.

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1080. Upon information and belief, TreySmith then had himself appointed for theprosecution of those crimes and arranged ajurisdictionally defective conviction for McInerney byfiling a Superior Court Information (“SCI”) alleging acrime not charged by felony complaint.

1081. When McDonough exposed the defect tothe trial court, Trey Smith initially denied the samebut then tacitly admitted it after McInerney’sattorney did so.

1082. Specifically, on August 26, 2011,McInerney waived indictment and consented to beprosecuted by SCI for a 2009 AB forgery.

1083. However, the SCI was apparently notfiled with the Court at the time of the waiver ofindictment as strictly and jurisdictionally requiredby State Constitution and statutes. See, NYSConstitution Art 1, § 6; CPL 195.40 CPL 195.20,200.15, 1.20(3-a); People v. Boston, 75 NY2d 585(1990); and McKinney’s, CPL 195, PracticeCommentaries, Peter Preiser, p.190.

1084. Consequently, under State statutoryand case law, McInerney’s conviction is effectively anullity that must be vacated upon motion whenevermade.

1085. More importantly, the subject waiverand SCI charged a 2009 forgery for which a felonycomplaint was never filed and upon whichMcInerney was not held for Grand Jury action.

1086. Again, therefore, McInerney’s convictionis a nullity and subject to being vacated upon motionwhenever made. See, N.Y.S. CPL §§ 180.30, 190.55,195,40 and CPL 200.15.

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1087. Nonetheless, Trey Smith never curedthat defect even though it provides a basis forMcInerney to vacate the conviction upon motionwithout limitation.

B. Trey Smith Arranged a JurisdictionallyDefective Conviction for Brown.

1088. Upon information and belief, TreySmith also arranged a jurisdictionally defectiveconviction for Brown by filing a felony complaintalleging a crime which was the subject of a pendingGrand Jury proceeding.

1089. Upon information and belief, Browntestified before the Grand Jury that was consideringevidence of his AB forgery obtained through theindependent NYSP investigation.

1090. Upon information and belief, without anindictment being returned, Trey Smith then filed aSCI and accepted Brown’s guilty plea to the chargealleged therein.

1091. Consequently, under State statutoryand case law, Brown’s conviction is effectively anullity that must be vacated upon motion whenevermade.

1092. Nonetheless, Trey Smith never curedthat defect even though it provides a basis for Brownto vacate the conviction upon motion withoutlimitation.

1093. Upon information and belief, theimmunity and extraordinarily favorable cooperationagreements, pleas bargains and other dispositionsthat Trey Smith provided for all the Dem C/0 andothers implicated in the AB forgery is evidence of the

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conspiratorial scapegoat prosecution and itsobjectives.

XXXVII. Fabricated False Trial Testimony toContinue Scapegoat Prosecution.

1094. Next, Trey Smith presented thefabricated false testimony of McGrath, Brown,O’Malley, McInerney, Renna, Robillard, Ogden andDan Brown at trial to continue the scapegoatprosecution of McDonough in furtherance of theirextra-judicial conspiracy.

1095. All of the witnesses were interviewed byTrey Smith in his investigatory capacity and theirfalse testimony was fabricated and presented toinitiate, continue and cover-up a conspiracy enteredinto on or about October and/or November 2009 andat all times thereafter, long before any relatedjudicial proceedings were commenced.

1096. The actions, including the silencing andtampering with witnesses and other orchestrations,as well as any later false testimony as needed, wereall overt acts that were done and anticipated to bedone as the conspiracy evolved, depending initiallyonly on McDonough’s actions but later also those ofthe supervisory NYSP and FBI.

1097. The most plausible inference to bedrawn from the record facts is that that once theconspiracy was hatched, those involved were“coached” by Trey Smith as to what false testimonywas needed to incriminate McDonough and/or notincriminate their cohorts, exonerate McDonough orexpose the conspiracy; i.e. he fabricated thetestimony needed, as needed.

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A. DeFiglio’s New Fabricated False Testimonywas Precluded By Court.

1098. At trial, to support the prosecutiontheory, Trey Smith also attempted to offer theadditional fabricated false testimony of DeFiglio thatMcDonough taught him how to trace forge votersignatures from voter registration cards.

1099. In chambers, Trey Smith profferedDeFiglio’s new testimony that McDonough hadshowed him how to place registration cards againsthis computer to trace voter signature’s onto forgedAB documents, but then, when McDonough disclosedthat he had no computer when the incident wasalleged to have happened, Trey Smith profferedDeFiglio’s changed testimony that McDonoughshowed him at that time how to trace the signaturesby placing the cards against his office window, untilMcDonough disclosed that he was not the BOECommissioner and had no office or workplacewindow at the time.

1100. The Court then denied Trey Smith’sproffer to introduce the new false testimony.

1101. Otherwise, DeFiglio testified astruthfully about facts that exposed the conspiratorialprosecution as he did falsely about facts fabricated tofurther it.

1102. Upon information and belief, DeFiglio’sfalse testimony was fabricated in material part andgiven to support of the prosecution theory, beconsistent with the false testimony of McGrath,Ogden and O’Malley and falsely convict McDonough,as discussed.

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B. McInerney’s Fabricated False TrialTestimony.

1103. McInerney testified falsely consistentwith his prior fabricated statement in theincrimination of McDonough and support of theprosecution theory, as stated above.

1104. Upon information and belief,McInerney’s false testimony was fabricated inmaterial part and given to support of the prosecutiontheory, be consistent with the false testimony ofMcGrath, Ogden and O’Malley and falsely convictMcDonough, as discussed.

C. O’Malley’s Fabricated False Testimony.1105. O’Malley gave false trial testimony to

continue the conspiratorial scapegoat prosecution ofMcDonough that was consistent with his false GrandJury testimony.

1106. O’Malley also gave new false testimonyin addition to that he gave before the Grand Jury inthe incrimination of McDonough and support of theprosecution theory.

1107. At trial, O’Malley added that onSeptember 14, 2009, he heard McDonough tellMcInerney the number of AB votes needed to win theWFP primary and that he had two HVCC studentswho owed him a favor whose could be counted on tovote by AB.

1108. O’Malley’s testimony was fabricated tobe consistent with the false testimony of McInerneyconcerning the forged AB documents of Joseph andPaterson, the two HVCC students from whom the

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Dem C/O did not solicit an AAB on September 12,2009.

1109. In fact, only McInerney knew that hehelped those two HVCC students establish residencyfor reduced tuition and paid them to enroll in theWFP. Neither McDonough nor O’Malley had anycontact with either of them.

1110. Therefore, it is clear that Trey Smithfabricated O’Malley’s additional false accusationwith McInerney’s participation: their false trialtestimony could not have been consistent unlessMcInerney told Smith about the HVCC students andO’Malley agreed to lie.

1111. Upon information and belief, O’Malley’sfalse testimony was wholly fabricated and given tosupport of the prosecution theory, be consistent withthe false testimony of McGrath, Ogden and O’Malleyand falsely convict McDonough, as discussed.

D. McGrath’s Fabricated False Testimony.

1112. McGrath gave false trial testimony tocontinue the conspiratorial scapegoat prosecution ofMcDonough that was consistent with his falsewritten statement and Grand Jury testimony, asdiscussed.

1113. Essentially, McGrath testified that hecommitted no crime, any voter who incriminated himwas wrong, any AB document that contradicted hisfalse testimony was wrong and only McDonoughcommitted any crime, as discussed.

1114. Upon information and belief, McGrath’sfalse testimony was wholly fabricated and given tosupport of the prosecution theory, be consistent with

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the false testimony of McGrath, Ogden and O’Malleyand falsely convict McDonough, as discussed.

E. Brown’s Fabricated False Testimony.

1115. Brown gave false trial testimony tocontinue the conspiratorial scapegoat prosecution ofMcDonough that was consistent with his falsewritten statement, as discussed.

1116. Despite having to admit that he forgedAB documents, his brother was his campaignmanager, he knew completed AAB had to filed toobtain AB and he and/or his brother took all the AABin question to McInerney to be copied and used toforge signatures on AB envelopes, Brown still failedto exonerate McDonough or admit the entire truth.

1117. Brown denied that he committed thecrimes in conspiracy with other Dem C/O, and thenadmitted it, but only to recant that admission thenext day.

1118. Brown did not tell the truth about whathappened on September 14, 2009 in McDonough’soffice concerning the entry of AB Agent names orExcuses on those AAB that would have incriminatedMcGrath and O’Malley in perjury and exoneratedMcDonough.

1119. Upon information and belief, Brown’stestimony was false in all material respects andfabricated in conspiracy with Trey Smith and/orothers to continue the scapegoat prosecution ofMcDonough and obtain the objectives of theirextrajudicial conspiracy, as alleged.

1120. Upon information and belief, Brown’sfalse testimony was fabricated in material part and

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given to support of the prosecution theory, beconsistent with the false testimony of McGrath,Ogden and O’Malley and falsely convict McDonough,as discussed.

F. Renna’s Past and New Fabricated FalseTestimony Stricken by Court at Retrial.

1121. Renna gave false trial testimony tocontinue the conspiratorial scapegoat prosecution ofMcDonough that was consistent with his falsewritten statement, as discussed.

1122. At the first trial, Renna also gave theadditional fabricated false testimony thatMcDonough licked the AB envelope of either Testa orRobertson or both.

1123. Renna also falsely testified thatMcDonough gave him voter registration cards totrace forge the signatures of those voters onto theirAB documents, even though the BOE wascomputerized and had none.

G. Dan Brown's Fabricated False Testimony.

1124. Upon information and belief, Renna’sfalse testimony was wholly fabricated and given tosupport of the prosecution theory, be consistent withthe false testimony of McGrath, Ogden and O’Malleyand falsely convict McDonough, as discussed.

1125. In any event, when subjected to moreexacting cross-examination at the second trial,Renna’s testimony was so patently false andfabricated to support the prosecution theory andfabricated false testimony of McGrath, O’Malley,Brown and Robillard that it was stricken in its

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entirety and he was directed to leave the courthouseimmediately.

1126. Nonetheless, Trey Smith did notprosecute Renna for perjury or rescind hiscooperation agreement because of his patently falsetestimony.

1127. Dan Brown testified that he essentiallycommitted no crimes and did not know anythingabout any crimes committed by anyone.

1128. However, Dan Brown was his brother’scampaign manager, obtained signed AAB from voterson September 12, 2009 that were falsely completedand he was in possession of the AAB that McInerneycopied to forge signatures on AB envelopes.

1129. Dan Brown’s trial and Grand Jurytestimony puts him in possession of AAB and/or ABhe gave to McInerney and/ or obtained from him andfiled before and/or after they were forged and hiscontradictory and inconsistent testimony shows thathe was involved in the commission of the AB forgeryin conspiracy with him and other guilty Dem C/O,especially his brother’s admission albeit recanted.

1130. In regard to the thirteen AAB filed onSeptember 12, 2009, McInerney admitted that hehad all those AAB in his possession and that one ofhis co-conspirators filed them with the BOE, but hecould not recall which one.

1131. Upon information and belief, the GrandJury and trial testimony of Dan Brown and othersmakes it more plausible than not that Dan Brown atleast possessed and filed them.

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1132. In particular, Dan Brown testified thathe obtained AB from McInerney and mailed them tothe BOE without knowledge that they were forged.

1133. However, Dan Brown testified in theGrand Jury that he filed certain AAB whichMcDonough was indicted for forging, before TreySmith changed his question to make sure he meantAB not AAB as he first said. That relevant testimonyis incorporated herein by reference.

1134. Upon information and belief, DanBrown testified materially falsely and failed to tellthe truth about the AB forgery that would haveexonerated McDonough.

H. Ogden’s Fabricated False Testimony.

1135. At trial, Ogden had to admit that hisGrand Jury testimony that all the AB Agent namesand Excuses on all the AAB were written in the samehandwriting and in a pattern that showed they wereall written by the same person was wrong.

1136. Ogden admitted that Trey Smithdirected and participated in the investigation.

1137. Ogden also admitted that he talked toRobillard about the theory of prosecution andevidence before he rendered his purported objectiveFDE report.

1138. Most interestingly, Ogden testified thathe and Trey Smith believed the self-serving swornstatements of McGrath over those of the voterswhere their testimony was contradictory concerningwhether they wrote or gave him permission to writeon their AAB or voted or gave him permission to votetheir AB.

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1139. Otherwise, Ogden falsely testifiedconsistently with his fabricated false Grand Jurytestimony to continue the scapegoat prosecution ofMcDonough.

I. Robillard’s Fabricated False Testimony.

1140. At trial, Robillard falsely testifiedconsistent with his report, as stated.

1141. In substance, Robillard gave thefabricated false testimony that his FDE findingsindicated that McDonough wrote all the false ABAgent names and Excuses on all the falsified AAB insupport of the prosecution theory and the fabricatedfalse Grand Jury and trial testimony of McGrath,O’Malley, Brown and Ogden.

1142. Upon information and belief, Robillard’stestimony regarding his purported findings andopinions was no more than fabricated false, improperand subjective testimony given contrary to acceptedstandards of FDE practice that he was required tofollow in order to render objective findings andopinions in a Court.

1143. Upon information and belief, Renna’sfalse testimony was wholly fabricated and given tosupport the prosecution theory, be consistent withthe false testimony of McGrath, Ogden and O’Malleyand falsely convict McDonough, as discussed.

1144. Upon information and belief, Robillard’sfabricated false testimony was also given to provideOgden a basis to assert that his Grand Jurytestimony was ostensibly reasonable.

1145. Robillard admitted that he came to hisfindings and rendered his related opinion testimony

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without comparing the handwriting of Brown, DanBrown, McGrath or other suspects.

1146. Later, after the NYSP arrestedMcInerney and Brown, Robillard obtained andcompared handwriting samplers from Brown andDan Brown.

1147. At that time, Robillard had to admitthat the handwriting of Brown, Dan Brown andMcDonough was very similar.

1148. Robillard also gave well-rehearsed,improper and false subjective opinion testimonyabout indentation “evidence” he found from analysisof the falsified AAB.

1149. Robillard also gave testimony about inkanalysis performed on AAB.

1150. Robillard also falsely, improperly,callously and maliciously testified numerous timesthat his handwriting opinions were “overwhelmingevidence” that McDonough wrote the false AB Agentnames and Excuses on all the AAB, despite the factthat established standards of practice permit only“expressions in degree of confidence” in the “greyarea” of opinion and he did not make a single“identification” for any document.

1151. Robillard also testified that hisindentation and ink findings were evidence thatMcDonough wrote the AB Agent names and Excuseson all those AAB.

1152. However, Robillard admitted that TreySmith directed him to not perform an ink analysis onfourteen (14) specifically identified AAB, includingthe Dickenson AAB.

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1153. Again, McGrath testified before theGrand Jury that he witnessed McDonough write afalse Excuse on the Dickenson AAB and heardMcDonough talking about names he could write asfalse AB Agents on all the AAB the Dem C/Oobtained in concert.

1154. Based on McGrath’s testimony, Trey Smithadopted the prosecution theory that all questionedAAB were forged “behind the counter” byMcDonough at his “forgery factory.”

1155. Ogden then falsely testified before theGrand Jury, in support of the prosecution theory,that the false AB Agent and Excuses on all the AABappeared were written in the same handwriting asthe Dickenson AAB and showed a pattern thatindicated that they were all written by the sameperson.

1156. However, upon information and belief,the Dickenson and each of the other thirteen (13)AAB that Trey Smith directed Robillard not toperform an ink analysis upon appear to the nakedeye to have been written entirely in the same ink.

1157. In view of the record facts, the findingthat fourteen (14) AAB were completed in the sameink alone would have exonerated McDonough,disproved the false testimony against him, debunkedthe prosecution theory and exposed the wrongfulprosecution, but it was effectively suppressed byTrey Smith and Robillard.

1158. Therefore, it is obvious that Trey Smithand Robillard did not perform an ink analysis onthose fourteen (14) AAB because the findings wouldhave confirmed what was apparent to the naked eye

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before McDonough was indicted for entering falsedata on them: they were completed entirely in thesame ink before being filed at the BOE by the DemC/O.

1159. That forensic evidence also would have:proven that McGrath, McInerney, Brown and otherscommitted the crimes in conspiracy, breachedCooperation Agreements and committed perjury;debunked the purported prosecution theory; andexonerated McDonough.

1160. Upon information and belief,McInerney’s false testimony was fabricated inmaterial part and given to support the prosecutiontheory, be consistent with the false testimony ofMcGrath, Ogden and O’Malley and falsely convictMcDonough, as discussed.

XXXVIII. Trey Smith Sought More FavorableSentence for Brown, Spoke on Behalf of Renna

at Sentencing, Aided Brown in FrivolousAppeal and Dismissed Indictments against

Campana and Galuski.

A. Trey Smith Asked Court to Sentence Brown toProbation.

1161. At sentencing, Trey Smith asked thecourt to impose a sentence of probation even thoughBrown committed perjury before the Court andGrand Jury and Trey Smith and Brown at trialrepeatedly told the jury that Brown might besentenced to prison in order to bolster his credibilityand rebut evidence of the scapegoat prosecution.

B. Trey Smith Spoke in Support of Renna atSentencing.

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1162. At sentencing, Trey Smith asked thecourt to sentence Renna to work order in accordancewith his cooperation agreement even though hecommitted such blatant perjury in breach of it thathis entire trial testimony was stricken from therecord

C. Trey Smith Dismissed Indictments againstCampana and Galuski.

1163. Upon information and belief, consistentwith the conspiratorial scapegoat prosecution and itscover-up, Trey Smith also ostensibly prosecutedGaluski or Campana only to dismiss the pendingindictments against them soon after McDonough’strial acquittal.

D. Trey Smith Did Not Oppose Brown'sFrivolous Appeal or Misrepresentations.

1164. According to a record plea agreement,Brown waived the right to appeal and agreed to besentenced within the sole discretion of the Court, butupon Trey Smith’s recommendation of no more thansix months incarceration and five years probation.

1165. At trial, Brown testified he was the onlydefendant who was going to go to jail or prison andTrey Smith repeatedly made the samerepresentation to bolster his credibility.

1166. However, when the court imposed thatsentence, Brown filed a frivolous appeal to have hissentence reduced based purely onmisrepresentations of fact and law. Brown’s brief onappeal is incorporated herein by reference.

1167. In response, Trey Smith effectivelyjoined in Brown’s fraudulent appeal until his conduct

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was exposed by McDonough. Smith’s respondent’sbrief and McDonough’s amicus brief are incorporatedherein by reference.

XXXIX. Additional General Allegations

1168. It is alleged that Trey Smith and Ogdenin their investigative capacity intentionallysuppressed evidence incriminating those whocommitted AB forgery, suppressed exculpatoryevidence through intimidation, coercion, and othertactics and maliciously prosecuted McDonoughwithout probable cause to deprive him of hisconstitutional rights.

1169. It is alleged that in his investigatorycapacity he made promises and threats to thoseresponsible for the AB forgery he did not prosecute toinduce them to agree and conspire to fabricate andgive false testimony against McDonough in GrandJury and trial.

1170. It is also alleged that the defendantsconspired to do so and committed overt acts infurtherance of that conspiracy.

XL. Defendants Conspiratorially

1171. It is further alleged, that in doing theacts and things stated above, the defendants wereconspirators and, at all times relevant, engaged in ascheme and conspiracy designed and intended todeny and deprive the plaintiff of his rightsguaranteed to him under the Constitution and thelaws of the Unites States, as alleged herein.

1172. It is alleged that Trey Smith in aninvestigative capacity entered into an extrajudicialconspiracy with the other defendants to fabricate

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false testimony to use it in the Grand Jury and attrial to initiate and continue the wrongfullyprosecution of McDonough without probable cause tocoerce him into pleading guilty or convict him anddeprive him of his liberty and rights to due processand a fair trial

1173. Upon information and belief, TreySmith, McNally, McGrath, O’Malley, Brown,McInerney, Dan Brown and Renna entered into anextrajudicial conspiracy prior to September 24, 2009and/or thereafter to scapegoat prosecute McDonoughand cover-up their unlawful acts which continued alltimes thereafter, up to and including, December 21,2012.

1174. Prior to March 2010 and at varioustimes thereafter, Trey Smith acting in concert andconspiracy with the named individual defendants,acting in an investigative capacity, orchestrated thefabrication of their testimony as needed to initiateand continue the scapegoat prosecution ofMcDonough, as alleged.

1175. Upon information and belief, on orabout a specific date unknown to McDonough afterthe AB forgery was discovered and prior toSeptember 14, 2009 and/or at various timesthereafter, Trey Smith, McGrath, Brown, McInerney,O’Malley, Dan Brown, Renna and Ogden enteredinto an extra-judicial conspiracy to fabricate falsetestimony to initiate and continue the malicious andfalse prosecution of McDonough and convict him foralleged acts they knew he did not commit to protectthemselves and others from being prosecuted for the

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AB forgery they committed in the subject 2009 WFPprimary and/or past elections.

1176. Upon information and belief, on orabout a specific date unknown to McDonough, Ogdenentered into that extrajudicial conspiracy andcommitted overt acts in furtherance thereof at alltimes thereafter, up to and including, December 21,2012.

1177. Upon information and belief, on orabout a specific date unknown to McDonoughRobillard entered into that extrajudicial conspiracyand committed overt acts in furtherance thereof atall times thereafter, up to and including, December21, 2012.

1178. Upon information and belief, McGrath,O’Malley, Brown, McInerney, Dan Brown, Renna,Ogden and Robillard intentionally and maliciouslygave that false testimony acting in conspiracy withTrey Smith and/or others to initiate, continue andcover-up the unlawful, scapegoat prosecution ofMcDonough.

1179. The false testimony and other allegedacts of the defendants to initiate, continue and cover-up the scapegoat prosecution of McDonough, from onor about October 2009 until December 21, 2013 wereovert acts in furtherance of that conspiracy.

1180. On or about September 24 to September28, 2009, and thereafter until December 21, 2012,McNally and the County allowed Trey Smith tocontinue the wrongful prosecution of McDonough byopposing his disqualification or failing to commencean action to have his illegal appointment nullified in

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accordance with the established law of which he wasgiven notice.

1181. The failure of McNally and Countyofficials to take action to disqualify Trey Smithdespite notice and knowledge of its unlawfulnesscaused McDonough to suffer a wrongful prosecutionthat resulted in two protracted trials, great monetaryexpense and substantial personal injury.

XLI. County Policymaking Decisions andActions

1182. At all times relevant, Trey Smith actedas an agent, employee and/or officer of the Countyand in his purported capacity as Special DistrictAttorney for the County. In addition, he acted as apolicy maker in his actions investigative,administrative and extra-judicial actions as SpecialDistrict Attorney.

1183. At all times relevant, McNally acted asan agent, employee and/or officer of the County andin his capacity as District Attorney and while actingwithin the course of his employment and in hisofficial capacity. In addition, he acted as a policymaker in his administrative and extra-judicialactions as District Attorney.

1184. At all times relevant, despite havingknowledge of the ultra vires actions of McNally andTrey Smith to fabricate and use false testimony toinitiate and continue his unlawful maliciousprosecution without probable cause and deprive himof his liberty and property rights as alleged, thecounty and its officials took no action to prevent orstop their conduct, but instead have condoned,

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supported and ratified the continued violation of hisrights as alleged herein.

1185. At all times relevant, the defendantpolicy-making officials McNally and Trey Smithaffirmatively acted to fabricate and use falsetestimony to initiate and continue his unlawfulmalicious prosecution without probable cause anddeprive him of his liberty, property and other rights,as alleged.

1186. Therefore, at all times relevant, by theirconspiratorial conduct and failure to take action toprevent the continued unlawful prosecution of theplaintiff in violation of his rights and wellestablished law, the defendant policymaking andsupervisory city officials have established amunicipal policy of unlawfully initiating andcontinuing the unlawful malicious prosecution ofMcDonough in violation of his well establishedconstitutional rights, as alleged.

1187. All of the alleged acts of Trey Smith,although ultra vires and beyond the scope of law,were done under the color of his purported appointedoffice and constitute unlawful and unjustifiablepolicy acts and decisions of the respondent County.

1188. The act of McNally unlawfullydisqualifying himself and his staff from the patentlybroad-scoped investigation and prosecution of thesubject matter and have Trey Smith appointedSpecial District Attorney was a policy act anddecision of the defendant County that was made toallow and/or did allow Trey Smith to, among otherultra vires acts, commence and continue a wrongful

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prosecution against McDonough based on fabricatedtestimony.

1189. The acts of McNally and all of the actsof Trey Smith thereafter were ultra vires and beyondthe scope of the law but within the scope of theiremployment.

1190. On or about September 24 to September28, 2009, and at all times thereafter up untilDecember 21, 2112, McNally and the County failedto take proper and necessary action to prevent TreySmith from taking any further unlawful actionpursuant to his illegal appointment by bringing acivil actions to have his appointment declared nulland void in accordance with the mandates of well-established law of which they were aware andprovided timely notice.

1191. The failure and willful refusal ofMcNally and the County to take proper and timelyaction to prevent the acts of Trey Smith frominitiating and/or continuing a prosecution ofMcDonough based on fabricated false testimonyconstituted an unlawful policy decision that causedMcDonough to suffer a wrongful prosecution whichresulted in two protracted trials, all at greatmonetary expense and substantial personal, mentaland emotion injury.

1192. McNally effectively initiated thewrongful prosecution of McDonough by unlawfullydisqualifying his office from the matter andobtaining an ultra vires Court order appointing TreySmith as Special District Attorney and thereaftercontinued it by opposing and failing to take action tohave him disqualified and the indictment dismissed

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despite notice and knowledge of its unlawfulness andthat Trey Smith was acting illegally and in excess ofthe law.

1193. McNally’s actions in effectivelysuppressing the disclosure of evidence material toMcDonough’s defense was a wrongful andunjustifiable policy act and decision made to, and/ordid, further the wrongful and malicious prosecutionof McDonough, as stated.

1194. Trey Smith’s actions in initiating andcontinuing the unlawful prosecution of McDonoughwith notice and knowledge of its unlawfulness andthat he acting outside the scope of the lawconstituted an unlawful policy decision that causedMcDonough to suffer a wrongful prosecution whichresulted in two protracted trials, all at greatmonetary expense and substantial personal, mentaland emotion injury.

1195. In addition, the County Legislature andCounty Executive had notice and knowledge of thealleged ultra vires and unlawful acts of McNally andTrey Smith. Therefore, its acts in failing to taketimely and appropriate action to have Trey Smith’sCourt Order of appointment declared null and void,despite having notice and knowledge that TreySmith was acting illegally and in excess of the law,constituted a policy or policymaking decision orpolicy act that was adopted and ratified by theCounty through its legislative and/or executive body.

XLII. Violations and Claims Alleged

1196. Plaintiff has been subjected, by theabove recited acts, to the deprivation by thedefendant, under color of law and of the customs of

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the State of New York, of the rights, privileges andimmunities secured to him by the Constitution andthe laws of the Unites States as stated herein.

1197. As a direct and proximate result of thedefendants’ concerted actions, under color of law,McDonough has suffered the deprivation of his civiland constitutional rights; serious physical, mentaland emotional injuries, pain and suffering, includingphysical illness, extreme mental and emotionaldistress, depression and anxiety, loss of self-esteem,and feelings of helplessness and worthlessness;humiliation, embarrassment, ridicule, indignity andsocial and personal stigmatization; invasion ofprivacy; actual and presumed damages to his goodprofessional name and reputation in the socialcommunity; medical expenses, investigation costs,substantial attorney fees and other monetarydamages in defending against the defendants’malicious relentless unconstitutional conduct and inpursuing the claims herein.

XLIII. Plaintiff’s Injuries

1198. As a direct consequence and result ofthe acts of the defendants alleged herein, plaintiffwas deprived of his liberty, caused great expense andrestrained in his travel and been irreparably injuredand damaged.

1199. On January 28, 2011, McDonough wasarrested by the New York State Police, processed onthe sealed indictment before arraignment, taken intothe custody, and arraigned before the RensselaerCounty Supreme Court. At that time, the Courtordered that he remain within the jurisdiction of theCourt and surrender any passport.

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1200. McDonough then suffered two trialsupon said charges before the Rensselaer CourtSupreme Court in the City of Troy, upon which hewas acquitted on December 21, 2012.

1201. Upon information and belief, noreasonable view of the facts and circumstances couldhave supported the criminal charges againstMcDonough or his prosecution based thereon.

1202. McDonough was innocent of the chargeson which he was wrongfully indicted and unlawfully,maliciously prosecuted.

1203. Plaintiff suffered greatly from January27, 2010, and at all times thereafter, includingsixteen (16) weeks of two protracted trials that endedon December 21, 2012 with his exoneration on all(74) felony charges.

1204. McDonough also suffered emotionaldistress due to being subjected to the criminalprocess and the deprivation of his rights as statedherein and his injuries were caused solely by theintentional, wrongful and illegal actions ofRensselaer County policymaking officials Trey Smithand McNally, who while acting in the course andscope of their duties, and in conceit and conspiracywith the other respondents, without properinvestigation and determination of the facts, causedMcDonough to be wrongfully and falsely accused,indicted, arrested and maliciously prosecuted.

1205. Due to the conduct of the defendants,McDonough has and likely will suffer publicdisgrace, ridicule, contempt and reproach;castigation from law enforcement officials; injury tohis character and good reputation; great mental

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anguish and pain, and irreparable injury in hisprofession, all to his monetary damage.

1206. Plaintiff also sustained exorbitantcriminal defense attorney fees and costs.

1207. The monetary damages and injuriessuffered by claimant were caused solely and directlyby the malicious actions of Trey Smith while actingin the course of his employment as Special DistrictAttorney of Rensselaer County to obtain theobjectives of an extrajudicial conspiracy with theother named individual defendants to scapegoatprosecute the plaintiff for acts he did not do that donot constitute the forgery crimes charged as a matterof law.

1208. Plaintiff has also suffered the loss ofincome as a result of his wife effectively beingcompelled to resign to avoid wrongfully terminationfrom employment due to the adverse publicity of thematter and the same has also caused his substantialeconomic hardship. He has also suffered continuedemotional distress and public humiliation.

COUNT I

SIXTH AMENDMENT RIGHT TO A FAIRTRIAL

FIFTH AMENDMENT DUE PROCESS

FOURTEENTH AMENDMENT DUE PROCESS

Constitutional Right Not to be Deprived ofLiberty as a Result of Fabrication of Evidence

(CIVIL RIGHTS CLAIM UNDER 42 U.S.C.SECTION 1983)

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Zahrey v. Coffey, 221 F3d 342, 344 (2d Circ.,2000); Ricciutti v. NYC Transit Authority, 124 F.

3d 123 (2d Circ., 1997).1209. Plaintiff incorporates by reference and

re-alleges all of the allegations contained inparagraphs 1 through 1120 as if set forth fullyherein.

1210. In committing the acts complained ofherein, the defendants acted, individually and/orconspiratorially, under color of state law to deprivethe plaintiff of certain constitutionally protectedrights under the Fourth, Fifth, Sixth and FourteenthAmendments to the Constitution of the UnitedStates, including, but not limited to: (a) the right tobe free from unreasonable searches and seizures; (b)the right not to be deprived of liberty without dueprocess of law; (c) the right not to due process of law,both procedural and substantive; (d) the right to befree from malicious arrest and/or prosecutionwithout probable cause; and (e) the right to a fairtrial.

1211. Specifically, the plaintiff hasConstitutional right not to be deprived of his liberty,liberty interests or a fair trial as a result of thefabrication of false evidence by a government officeracting in an investigatory capacity especially wherethat officer foresees that he himself will use theevidence with a resulting deprivation of liberty.

1212. The defendants deprived plaintiff ofthose rights in violation of the Fifth, Sixth and/orFourteenth Amendments to the United StatesConstitution and Title 42 USCS § 1983, as allegedherein.

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1213. This claim arises directly under bothTitle 42 USCS § 1983 and under the United StatesConstitution.

COUNT II

FOURTH AMENDMENT

FOURTEENTH AMENDMENT DUE PROCESSCLAIM

Constitutional Right Not to be ProsecutedMaliciously without Probable Cause


Singer v. Fulton County Sheriff, 63 F3d. 110 (2dCirc., 1995)

1214. Plaintiff incorporates by reference andre-alleges all of the allegations contained inparagraphs 1 through 1120 as if set forth fullyherein.

1215. In committing the acts complained ofherein, the defendants acted, individually and/orconspiratorially, under color of state law to deprivethe plaintiff of certain constitutionally protectedrights under the Fourth, Fifth, Sixth and FourteenthAmendments to the Constitution of the UnitedStates, including, but not limited to: (a) the right tobe free from unreasonable searches and seizures; (b)the right not to be deprived of liberty without dueprocess of law; (c) the right not to due process of law,both procedural and substantive; and (d) the right tobe free from malicious arrest and/ or prosecutionwithout probable cause.

1216. Specifically, the plaintiff hasConstitutional right not to be arrested, detained,

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restricted in liberty and/or prosecuted withoutprobable cause, including when deprived of hisliberty, liberty interests or a fair trial as a result ofthe fabrication of false evidence by a governmentofficer acting in an investigatory capacity especiallywhere that officer foresees that he himself will usethe evidence with a resulting deprivation of liberty.

1217. The defendants deprived plaintiff ofthose rights in violation of the Fifth, Sixth and/orFourteenth Amendments to the United StatesConstitution and Title 42 USCS § 1983, as allegedherein.

1218. This claim arises directly under bothTitle 42 USCS § 1983 and under the United StatesConstitution.

COUNT III

Monell Claim Against County


1219. Plaintiff incorporates by reference andre-alleges all of the allegations contained in all of theparagraphs above as if set forth fully herein.

1220. Defendant County violated theplaintiff’s rights and caused him said deprivationsthrough its policymaking acts decisions, as allegedherein.

DEMAND FOR PUNITIVE DAMAGES

Upon information and belief, at all times relevant,the individual defendants acted with malice, intentto injure, or deliberate, reckless or callousindifference to McDonough’s well established rightsunder the Fourth, Sixth and Fourteenth

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Amendments of the United States Constitutionwhich provides a basis for the imposition of punitivedamages.

The actions of the individual defendants asdescribed herein were extreme and outrageous, andshock the conscience of a reasonable person.Consequently, an award of punitive damages isappropriate to punish the defendants for their crueland uncivilized conduct.

DEMAND FOR TRIAL BY JURYThe plaintiff hereby demands a trial by jury.

PRAYER FOR RELIEF

WHEREFORE, plaintiff respectfully prays for thefollowing relief:

1. Judgment against the defendants individually,jointly and severally for compensatory damages inthe amount of six million ($6,000,000.00) dollars forthe actual damages plaintiff has and will suffer; and

2. Judgment against the defendants individually,jointly and severally for punitive damages in theamount of two million ($2,000,000.00) dollars or insuch other amount as is commensurate with thewrong and with the defendants’ ability to pay; and

3. Order the defendants individually, jointly andseverally to make plaintiff whole with respect to payhis full damages proximately resulting fromdefendants’ wrongful actions, including medical andrelated expenses, travel, copying and postage costs;and

4. Award Reasonable attorney’s fees, costspursuant to 42 USCS § 1988; and

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5. Award such other and further relief as theCourt deems just and proper; and

If the Court should find for plaintiff, on any or allcounts, plaintiff respectfully requests that a separatehearing be held for the production of evidence on theamount of damages.

Dated: December 18, 2015.

s / Brian D. Premo, Esq.

BRIAN D. PREMO, ESQ.

Fed Bar No. 102394

PREMO LAW FIRM PLLC

Attorneys for Plaintiff

20 Corporate Woods Boulevard

Albany, New York 12211

(518) 436-8000

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TREY SMITH, ESQ.SPECIAL DISTRICT ATTORNEY

Smith Hernandez LLCRensselaer Technology Park

105 Jordan RoadTroy, New York 12180-8376Telephone: (518) 283-4100Facsimile: (518) 283-7649

April 27, 2011

VIA FACSIMILE (518) 431-0249

William C. Pericak, Esq.Assistant U.S. AttorneyUnited States AttorneyNorthern District of New York445 Broadway, Room 218James T. Foley U.S. CourthouseAlbany, New York 12207-2924

Re: In the Matter of an InvestigationPertaining to Rensselaer County SupremeCourt Index No. 230629, ChristianLambertsen v. Lawrence Bugbee, et al.

Dear Bill:

As you must know, I am the Special DistrictAttorney in the above matter, which concerns ballotfraud in the September 15, 2009 primary held in theCity of Troy. Yesterday I received a telephone callfrom Brendan Lyons of the Times Union regarding

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an investigation allegedly being conducted by theF.B.I. of the same matter. I assume you were not thesource for the story, which appeared in thismorning’s edition of the Times Union.

You may not know that shortly after myassignment to this case, and after my initial reviewof the file, I spoke with Acting U.S. Attorney AndrewBaxter and F.B.I. Agent Laura Youngblood regardingthe case. I realized then that proper investigationwould require substantial resources. Long storyshort, I was told that given that I was alreadyassigned and that the September 15, 2009 primarywas not a federal election, the Government woulddecline any role, even after I made it clear that Iwould step aside if the Government would take overthe investigation and any prosecution. The NewYork State Police then agreed to assist, and hasexpended considerable resources in the investigation,which lead to the indictment of Edward McDonoughand Michael LoPorto. The People do not intend theprosecution to end with the indictment of Mr.McDonough and Mr. LoPorto. The State Police and Icontinue to work the case.

Some may read your refusal “to confirm or deny”that the F.B.I. was investigating the September 15,2009 primary as discrediting our work. I assumethis was not your intent. I called this morning andleft messages for you and Rick Hartunian. I wouldgreatly appreciate a return of my calls today so thatwe can address these issues promptly and avoid anymisunderstanding.

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Very truly yours,

/s/ Trey SmithTrey SmithSpecial District Attorney

TS/mw

cc.: Capt. Steven James (via e-mail)

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TREY SMITH, ESQ.SPECIAL DISTRICT ATTORNEY

Smith Hernandez LLCRensselaer Technology Park

105 Jordan RoadTroy, New York 12180-8376Telephone: (518) 283-4100Facsimile: (518) 283-7649

April 28, 2011

VIA FACSIMILE (518) 431-7463

Special Agent in Charge Clifford C. HollyThe Federal Bureau of Investigation200 McCarty AvenueAlbany, New York 12209

Re: In the Matter of an InvestigationPertaining to Rensselaer County SupremeCourt Index No. 230629, ChristianLambertsen v. Lawrence Bugbee, et al.

Dear Special Agent in Charge Holly:

I am the Special District Attorney in the abovematter, which concerns ballot fraud in theSeptember 15, 2009 primary held in the City of Troy.Two days ago I received a telephone call fromBrendan Lyons of the Times Union regarding aninvestigation allegedly being conducted by theAlbany office of the F.B.I. of the same matter.

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Shortly after my assignment to this case in lateSeptember, 2009, and after my initial review of thefile, I spoke with Acting U.S. Attorney AndrewBaxter and F.B.I. Agent Laura Youngblood regardingthe case. I realized then that proper investigationwould require substantial resources. Long storyshort, I was told that given that I was alreadyassigned and that the September 15, 2009 primarywas not a federal election, the Government woulddecline any role, even after I made it clear that Iwould step aside if the Government would take overthe investigation and any prosecution. The NewYork State Police then agreed to assist, and hasexpended considerable resources in the investigation,which lead to the indictment of Edward McDonoughand Michael LoPorto. The People do not intend theprosecution to end with the indictment of Mr.McDonough and Mr. LoPorto. The State Police and Icontinue to work the case.

Yesterday I called and left a message at your officefor someone to return my call. I did not leave themessage for you specifically, because I did not knowyet what I was dealing with. Later that same day Ispoke with Assistant U.S. Attorney William C.Pericak, whom I have known for a number of years.Mr. Pericak’s reputation for candor andforthrightness is impeccable. Mr. Pericak told methat the first he had heard of an investigation by theF.B.I. of this matter was two evenings ago, when hereceived a call for comment from Mr. Lyons. Mr.Pericak also confirmed for me, again, that theGovernment had no jurisdiction to investigate thismatter. I assumed that what had occurred was thatBrian Premo, the attorney for Mr. McDonough, had

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gotten an interview with an F.B.I. Agent, that thisAgent had told Mr. Premo that he would “look into”his claims (which include alleged prosecutorialmisconduct and selective prosecution, claims whichare categorically denied), and that there was nothingmore to this story, and I so advised Capt. StevenJames of Troop G, Loudonville.

A few hours after my conversation with Mr.Pericak, I received a telephone call from localinvestigative television journalist John McLaughlin,who asked me to respond to his information, whichhe allegedly had confirmed with several defenseattorneys, that a local F.B.I. Agent was, in fact,contacting those attorneys to seek permission tospeak with witnesses in the case. One of thosewitnesses allegedly is Robert Martiniano, with whomthe State Police and I have been trying to arrange aninterview for weeks. The name given to me of theagent scheduling interviews is an Agent McDonald.This morning’s Troy Record indicates that the agentalso has “sat down” with Mr. Premo.

I trust I do not need to spell out for you the manyissues arising from this situation, which has alreadygone public. These issues are pressing, and need tobe resolved immediately. I would greatly appreciatethe courtesy of a phone call today.

Very truly yours,

/s/ Trey SmithTrey SmithSpecial District Attorney

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TS/mw

cc.: Capt. Steven James (via e-mail)

William C. Pericak, Esq. (via facsimile)

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AFFIDAVITCPL 190.30(3)(f)

STATE OF NEW YORK )

COUNTY OF RENSSELAER ) ss:

Jolene VanVranken, being duly sworn, deposes andstates:

1. My name is Jolene VanVranken.

2. I make this affidavit pursuant to New YorkCriminal Procedure Law § 190.30(3)(f), whichprovides that a written statement under oath may bereceived in a grand jury proceeding as evidence of aperson’s identity as an ostensible maker, drafter,drawer, endorser or other signator of a writteninstrument and its falsity within the meaning ofNew York Penal Law § 170.00.

3. This affidavit is made on personal knowledge,and on information and belief where indicated.

4. On information and belief, as of September 15,2009, I was enrolled in the Working Families Partyand registered to vote in the City of Troy, County ofRensselaer and State of New York. However, theregistration was not current. In June, 2010, I movedfrom the City of Troy to in RensselaerCounty, New York.

5. Attached as Exhibits “A” and “B” are copies ofan absentee ballot application and absentee ballotenvelope which I understand were filed with theRensselaer County Board of Elections in connectionwith the September 15, 2009 primary held for votersof the City of Troy. Both documents purport to be an

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authentic creation of mine, that is, both purport tohave been made or completed by me.

6. The absentee ballot application attached asExhibit “A” contains entries which I did not make orauthorize. I did not sign the application, and I didnot authorize anyone to sign the application on mybehalf. I was not the source of the information in the“Where will you be on Election Day” section of theapplication, and the information in that section ofthe application is false. I did not make the entry inthat section of the application, and I did notauthorize anyone to make that entry on my behalf. Iwas not the source of the information in the“Delivery of PRIMARY election ballot” section on theapplication. I did not make the entry in that sectionof the application, and I did not authorize anyone tomake that entry on my behalf.

7. The absentee ballot envelope attached asExhibit “B” contains entries which I did not make orauthorize. I did not sign the ballot envelope, and Idid not authorize anyone to sign the ballot envelopeon my behalf. I did not date the ballot envelope, andI did not authorize anyone to date the ballot envelopeon my behalf.

Subscribed and sworn to before methis 8th day of December, 2010.

/s/ Youel C. Smith, III

NOTARY PUBLIC

(seal)

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Q. All right. I’m going to show you that. (Affidavitmarked Defendant McDonough’s Exhibit DD foridentification.)

Q. Take a look at the second page of thatdocument, DD, I believe. Is that your signature?

A. No.

Q. And there’s no middle initial in that; is there?

A. Eh-eh.

Q. Could you tell us what that document is?

A. I’m sorry?

Q. What does the document say it is?

A. It says it’s a deposition.

Q. A forgery deposition for the Grand Jury. Isthat what that is? Have you ever seen that documentbefore today, ma’am?

A. I don’t remember.

Q. Well, it’s not your signature on it; correct?

A. No.

Q. Could you take a look at that signature that’son Page 2 of that document and compare it to thesignature on the New York State Police depositionthat you gave and signed?

A. Okay.

Q. Which signature appears to be yours?

A. The left one.

Q. And you have been writing that for a longtime; right?

A. Yes.

Q. And it’s pretty loopy?

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A. Yes.

Q. And you signed it with your middle initial?

A. Yes.

Q. And, yet, that forgery affidavit is in completelydifferent handwriting; isn’t it?

A. This one?

Q. Yes.

A. Yes.

Q. And who is the Notary on that document?

MR. SMITH: Your Honor --

A. I can’t read it.

MR. SMITH: Your Honor, can we approach?

THE COURT: The answer is I can’t read it.

MR. PREMO: I would like to offer all of thedocuments in evidence, Your Honor, for signaturepurposes, and for further purposes outside thepresence of the jury.

MR. HUG: Your Honor, there’s no relevance to thisat all.

MR. PREMO: Oh, it has every relevance.

THE COURT: Please, please, please; no editorialcomments.

MR. HUG: Your Honor, the testimony was that

* * *

[Defendant’s Exhibit __: signature exemplar]

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NEW YORK STATE POLICE

VOLUNTARY STATEMENT

COUNTY OF RENSSELAER

STATEMENT START TIME: 8:40 X AM PM

TOWN OF BRUNSWICK

DATED: SEPTEMBER 16, 2011

I, William A. McInerney AGE: 47 AND BORN ON:/ /1963, AND RESIDING AT: 2423 21ST ST. APT. #5TROY, NY, HAVE BEEN ADVISED BY: Inv. John.J. Ogden Jr., OF THE NEW YORK STATE POLICE,OF THE FOLLOWING:

I HAVE THE RIGHT TO REMAIN SILENT AND IDO NOT HAVE TO MAKE ANY STATEMENT IF IDO NOT WANT TO.

IF I GIVE UP THAT RIGHT, ANYTHING I DOSAY CAN AND WILL BE USED AGAINST ME IN ACOURT OF LAW.

HAVE THE RIGHT TO HAVE A LAWYERPRESENT BEFORE MAKING ANY STATEMENTOR AT ANY TIME DURING THIS STATEMENT.

IF I SHOULD DECIDE THAT I DO WANT ALAWYER AND CANNOT AFFORD TO HIRE ONE,A LAWYER WILL BE APPOINTED FOR ME FREEOF CHARGE AND I MAY HAVE THAT LAWYERPRESENT BEFORE MAKING ANY STATEMENT.

I ALSO UNDERSTAND THAT I HAVE THERIGHT TO STOP AT ANY TIME DURING THISSTATEMENT AND REMAIN SILENT AND HAVEA LAWYER PRESENT.

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I FULLY UNDERSTAND THESE RIGHTS ANDAT THIS TIME, I AGREE TO GIVE UP MYRIGHTS AND MAKE THE FOLLOWINGSTATEMENT;

/s/ James E. Long /s/ William McInerney

WITNESS WILLIAM A. MCINERNEY

I am at the State Police Station in Brunswick, NY.I am here with Gregg Amiroso. Mr. Amiroso is anattorney and associate of my Attorney James Long.Mr. Long has asked Mr. Amiroso to accompany me tothis interview, and I acknowledge that he is my legalcounsel for the purpose of this interview. I know thatInv.’s Ogden and Fancher have been assigned toinvestigate the Absentee Voter Ballot Fraud whichtook place in September of 2009 and affected thePrimary election in the City of Troy for the WorkingFamilies’ Party. I am here to provide any and allinformation I have pertaining to my conduct andinformation I possess as to the conduct of otherpersons who were involved in the procurement andsubsequent forgery of Absentee Ballot Applicationsand the Ballots generated from those ballotapplications.

I began my career in politics in the mid nineteeneighties. I received a patronage job in the StateLegislature. Edward McDonough Sr. was myBenefactor in receiving this position. My first job wasin the Bill Drafting Dept. I moved to the Assembly invarious departments. I worked there until 2007.When I received the position I knew my job wascontingent upon my service to the Democratic Party.

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I had been a volunteer for some time prior to Mr.McDonough helping me to get the job. In 1996 or1997 I became a committeeman in the City of Troy.In my capacity as a committeeman myresponsibilities to the Democratic Party increased. Iwas now responsible for obtaining signatures onPetitions and for any other tasks required to promotea candidate. I posted Political signs, did mailings,organized fund raisers, and any other function toassist the Party and our candidate’s campaigns.

I lost my job in the Legislature in 2007, I neededanother job. I thought that if I worked hard andmade a significant contribution to the party duringthe 2007 election cycle I may be able to put myself ina position to ask for a new job in the DemocraticParty. I knew from my previous experiences inpolitics that there were several ways that an electioncould be influenced. The residents of the City’s Lowincome public housing were also targeted in theparty registration process. If a voter was registeredin a Political Party, their vote was available to forgein future primary and general elections. I alsolearned that Absentee Ballots were a way toinfluence the outcome of an election. By targetingvoters who didn’t regularly vote, or who had movedaway, or were just ignorant to the absentee votingprocess, an absentee ballot could be cast in theirname and it would not be discovered because no onewould ask any questions as to the authenticity of theballot. There were several methods employed tocomplete this type of manipulation. An actualsignature could be procured from the voter with thepromise that the vote itself would be taken care of.Another method would be to solicit the absentee

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Ballot Application, and if the voter wasn’t home, ordidn’t answer the door, then the name would just beforged. Once I had a list of voters registered in theDemocratic Party, I could go out in my district andsolicit absentee Ballot Applications in order togenerate an actual Absentee Ballot. Once I had theAbsentee Ballot I could vote the Party Line on everyone and have an influence on the outcome of a givenelection. When ever I would go to the Beard ofElections to obtain Absentee Ballot applications or toturn in Absentee Ballots I would deal specificallywith Ed McDonough Jr., The DemocraticCommissioner, or Mary Sweeney his Senior Clerk. Idealt with Ed and Mary for the specific reason that Iknew that they would never ask me a question aboutit. I would ask for many absentee Ballot applicationsat a time just prior to the election. I wouldn’t turn inthe absentee Ballots until the day of the election.This is a strategy on both sides of the aisle to preventthe other party from knowing how many absenteeballots are being cast. Whenever I obtained alegitimate ballot, I mailed it in. From my experience,my success rate in procuring Absentee Ballots wasfar and away above the average of other workers.During the 2007 and 2008 election cycles my successat procuring absentee ballots became commonknowledge. Everyone knew that for just about everyabsentee ballot application that I received, acompleted absentee ballot would be received at theboard of Elections. I never actually told anyone whatI was doing, and no body ever asked me how I was sosuccessful.

In January of 2008 I was rewarded for all of my“hard work.” I was appointed to the position of Troy

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City Clerk by the Troy City Council. The DemocraticParty took control of the City council. ClementCampana was elected as the president of the CityCouncil. Clem nominated me for the position. Myefforts at obtaining absentee ballots continuedduring the 2008 election cycle. I forged absenteeballot applications and I also forged the ballotscorresponding to many of those applications. Duringthe 2007 and 2008 election cycles I acted alone inforging ballots and applications. I am convinced thatpeople knew what I was doing, but I did act alone.

In the summer of 2009 several of the City Councilcandidates expressed concern that the Mayor ofTroy, Harry Tutunjian, would cause a largeRepublican turn out and that some of the lesserknown candidates in the Republican party would“ride his coat tails” because he had won by alandslide over the Democratic candidate, JimConroy, in the 2007 election. After the first week inJuly, when Petitions were submitted, there wererumblings within the Democratic Party that we needto control the Working Families Party Line in orderfor our candidates to keep their seats on the Citycouncil. During the third week of August 2009following a City council committee meeting I wasapproached by John Brown. John Brown is a Citycouncilman and it is well known that he is veryambitious and wants to be Mayor after Tutunjian’sterm is over. Brown came up to me following themeeting, outside of the City Hall. I was on my way tomy car. Brown told me that he wanted the workingFamilies line. Brown knew that whomever was theCity Council President had the inside line atreceiving the Party’s endorsement to run for Mayor

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in the next election, which would be an open seatafter Tutunjian’s term expired. John Brown, ClementCampana and Michael LoPorto are the Democratic“At large” Candidates on the City council. All threewere in agreement that they needed the WFP Line,but all three also wanted to receive the most votes inthe “at large” race for City Council. So they wereallies and competitors at the same time. All threehad Party interests and personal interests workingagainst each other. When I left the City councilcommittee meeting I went to Michael LoPorto’srestaurant on 4th St. in Troy. Present at therestaurant were: Michael LoPorto, ClementCampana, Robert Martiniano, Thomas Aldrich,Anthony DeFiglio, Kevin McGrath and me. Duringthe meeting the control of the WFP line wasdiscussed. Michael LoPorto and Clement Campanaboth spoke to me personally and told me therewishes to control the WFP line. It was clear to methat Brown, Campana and LoPorto all were speakingto me personally because they were aware of myrecord at procuring absentee Ballots. Kevin McGrathalso commented that he would like to control theWFP in his Council District. He stated that hethought there were about thirty WFP votes in hisDistrict. Anthony DeFiglio had a list of theregistered voters in the WFP. He noted that most ofthe voters were residents of the City of Troy PublicHousing. Anthony advised that procuring those voteswouldn’t be a problem. Anthony was a clerk at theCity’s housing authority, and most of the votersknow him and will open their doors for him. I arguedagainst this strategy because knew that I reallydidn’t know most of the officers in the WFP, and I

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didn’t trust them. I also knew that, even thoughHarry Tutunjian had won the Mayor’s race in 2007,the Democratic candidates had won the City council.I knew that there must have been some previousdiscussion about winning the WFP line. That wasthe only explanation for Anthony DeFiglio to havethe WFP voter registration list. I didn’t want to beinvolved in the whole idea but I knew that LoPorto,Campana and Brown didn’t trust each other andthey obviously all were looking to me to insure theoutcome. Michael LoPorto said to me; something tothe effect of “Lets get the working families Partyline, Lets get it done”. I knew that I would be takinga chance helping these guys. I was hoping thatLoPorto, Campana and Brown would take care of theballots; but I knew it was going to be a problem.There were several reasons for my concerns. Firstwas that Brown, LoPorto and Campana didn’t trusteach other. Secondly, I didn’t know, or trust, any ofthe WFP people. And third, there were just too manypeople involved and I knew something would gowrong, but didn’t see myself as having a choice. Myjob was dependent on those three controlling theWFP line. I was in a no win. If they won and didn’tcontrol the line then they would know that I didn’tdo what was asked and I believed I would probablylose my job, and if they lost, I was out anyway. Therewas some discussion about the absentee ballotapplications and who they would be released to.Michael LoPorto said that Thomas Aldrich wouldhelp us. When I obtained a Ballot application I oftenput “Thomas Aldrich” as the name in the “release to”section of the application.

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I made contact with Ed McDonough Jr. I asked himhow many votes it would take to insure that ourcandidates controlled the WFP line. McDonough toldme that it would take 125 votes, total in person andabsentee, to control the line. During the meeting atLoPorto’s, The candidates had a discussion andsomeone said that we needed 25 votes in each of thesix voter districts. I said that there was no possibleway that we we’re going to get that many votes. Itwas abundantly clear to me what was expected of mefrom the three candidates, Brown, Campana andLoPorto. They all knew what my record was forobtaining absentee ballots. I can not stress enoughhow much they distrusted each other and looked tome to ensure that for every ballot application therewas a ballot voted for them.

During the next few weeks I solicited absenteeballot applications in the Public Housing in the Cityof Troy. I did this with Anthony DeFiglio. Anthonywould usually knock on the door and the tenantswould answer for him and then I would obtain theirsignature on the ballot applications. We receivedapproximately thirteen applications between thedate of the meeting at LoPorto’s and Friday,September 11th, 2009. I can’t remember who actuallydelivered those applications to the Board ofElections. I do remember that I forged those ballotsand gave them to Dan Brown along with a couple ofothers that I had forged for the Democratic Primary.I believe that there may have been sixteen in all.Thirteen from the WFP and three from theDemocratic primary. They were all wrapped in arubber band. I remember when I handed the Ballotsto Dan Brown I told him “ you should mail these, you

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shouldn’t hand them all in at once” . I can’t say forsure why Dan Brown was the person I gave thoseballots to.

On Friday September 11th, 2009 I had telephoneconversations with the candidates. We discussed thatonly about a dozen or so absentee ballots had beencompleted. It wasn’t enough and we all agreed tomeet at Griswold Heights on Saturday , September12th, 2009 to solicit more applications. On Saturday,September 12th, 2009 I met with; John Brown, DanBrown, Clem Campana, Michael LoPorto, ThomasAldrich, Gary Galuski, Anthony Defiglio, KevinMcGrath, and Robert Martiniano at GriswoldHeights. We separated into groups and began tosolicit voters for absentee ballot applications. KevinMcgrath told me to send someone up to his district“who know what’s going on”. As far as I know DanBrown and Tom Aldrich went to the North end ofTroy to solicit. John Brown, Campana, LoPorto, andMartiniano went to North Central. They all stayedtogether because they didn’t trust each other andwere keeping an eye on each other. I stayed inGriswold Heights with Anthony DeFiglio and GaryGaluski. At about 4:00 or 5:00pm I had completedsoliciting applications. I was at Northway Toyota inLatham, Gary Galuski had given me a ride up thereto pick up my car. I received a telephone call fromRobert Martiniano. Martiniano told me that JohnBrown was going to forge signatures. I toldMartiniano that “I don’t know what John Brown isdoing, you’re with him.” At some time I received aphone call from Kevin McGrath. Kevin wanted toknow how many applications we solicited from his

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voter district. I told Kevin that I didn’t have any ideahow many we got from his district.

On Monday, September 14th, 2009 John Browncame to my office at Troy City Hall. We continuedgoing over the applications and the numbers weneeded. We compared the names on the registrationlist to the names on the applications we hadsolicited. I checked them off and we got a count. Wemade photocopies of all of the applications and I keptthe copies. There is only one reason for us to makephotocopies of the applications. Once a ballot isgenerated we need the copy of the application just incase we are not able to locate the voter to sign theballot envelope. Should we not be able to locate aspecific voter we can then use the application toeither trace or copy their signature on the ballotenvelope. John was at my office for about twentyminutes or so. John took all of the originalapplications over to the Board of Elections. I wasn’tat the BOE, but it is my understanding that Johnleft the applications with Ed McDonough. Ed calledme later in the morning, at around 10:30 or 11:00and told me that he was going to be bringing theballots to me at my office. I was pissed off. I askedhim “why the fuck are you bringing them to me, myname isn’t on them.” He said that Brown had leftthem in his office and told him to deliver them to me.When Ed McDonough delivered the Ballots to myoffice they were in a manila folder. The envelopeswere open with the ballots inside. There were aboutthirty ballots in the envelope. McDonough and I wentover the voter list. McDonough asked “how many dowe have”. I tallied in the 40’s. This number includedthe ballots that I had given to Dan Brown on Friday

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the 11th. I told Ed McDonough that he could probablyget Brian Suozzo and Jermaine Joseph as well. I’msure those two ballots never left the RensselaerCounty Board of Elections office. When I say thatthey never left the Board of Elections office, I meanthat applications were made and ballots generatedand neither the application or the ballot ever left theBOE for the voter to see. They were forged. I toldMcDonough that I didn’t have time to try to find allof the voters and get signatures on the ballots. Icalled Michael LoPorto, Clem Campana and JohnBrown. I told all of them that I wasn’t going to get allof the ballot’s signed myself and that I wanted themto meet me at Griswold Heights to get them done. Ihad plans for the evening, I had to cancel my plans,and I told them that if they wanted the WFP linethey were going to have to help: I sent Tony Renna toJackson St. to get the ballots for Joseph Mamone,Michael Mamone, Michelle Zillgit, and JessicaBoomhower signed. Me, Michael LoPorto, and ClemCampana started soliciting for signatures on theballots. We did not have much success. I can only sayfor sure that Richard Gushlaw signed a ballot. JohnBrown arrived at some point while we were knockingon doors. I saw Tony Renna hand the four ballotsfrom Jackson St. to John Brown. I was kind offollowing them and I heard Tony say to John Brown“do you have to do that in front of everyone.” I askedJohn “what the hell are you doing”. I believe that thehandwriting in the date field on the four ballotenvelopes from Jackson St. is John Brown’s, I didn’tactually see him complete the ballots. We knocked onsome more doors, again without much luck. When wefinished trying to get signatures I had the ballots

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with me. We went to our cars and as we were allgetting ready to leave one of the three, I can’tremember which one, said “these are going in right? ”I acknowledged the question with the response “I’mnot turning them into the BOE” I Michael LoPortotold me that he would take care of it:

On Tuesday, September 15th, 2009 I left the ballotsthat I had received the previous day from EdMcDonough at my home when I went to work.Sometime around mid morning Michael LoPortocalled me and asked me if the Ballots “were doneyet”. I told him no. In my mind I know that I didn’twant to forge that many ballots with that manypeople involved in the plan. I knew that somethingwas going to go wrong. I kept stalling and hopingthat Michael or someone would call and say “ givethem to me and do it.” That never happened. Michaelcalled me again just prior to lunch time and askedme again. I told him no again and said that I wasbusy at work. I hoped he would ask for them, but hedidn’t. As the day went on I knew that I was going tohave to do them because if I didn’t, all three of themwould know that I did not do it and I felt I wouldmost likely lose my job. Sometime after getting backto the office from my lunch break I went home andforged the ballots and the ballot envelopes. I didn’twant my DNA on them so I dipped my finger inwater and wet the envelope seals that way. When Icompleted them I called Michael LoPorto and toldhim to meet me at City Hall. I gave the ballots toMichael at City Hall. They were in a manila envelopeand he left with them.

On the Morning of the 15th of September I receiveda telephone call from either Kevin McGrath or John

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Brown, I can’t be sure who first called. They told methat Bob Mirch and the Deputy Mayor Dan Crawleyhad been out speaking to the voters who hadabsentee ballots at the BOE. That was the firstindication that there was going to be problems withthe election. Later in the day Kevin Mcgrath calledme and asked me “how many from my district wentin.” I told him again that I didn’t know.

During the following week Bob Mirch had one ofhis candidates, Christian Lambertson, initiate a Lawsuit to invalidate the absentee Ballots for the WFPand to look into the fraud. Ed McDonough came tomy office at City Hall. He told me that Bob Mirchhad hired a Private Investigation firm to investigatewhat had happened with the absentee ballots. Edwanted to talk about a “strategy” to deal with thesituation. He suggested going to Bob Mirch andtrying to make some kind of deal to make thesituation go away. I was not on board with going toMirch. I told Ed he needed to just tell the truth. Edtold me that he was going to meet with the JohnBrown and some of the WFP people at LoPorto’slater that day. I asked Ed if he really thought that itwas a good idea to meet with the WFP. Ed and I metin Waterford the night before the civil hearing. Iwanted to stay away from home and work so that Icouldn’t be served with a subpoena and have totestify in the Civil proceeding. It was some timeduring that week following the Primary that Idecided that I needed to protect myself. I called theDistrict Attorney, Rich McNally. Rich and I becamefriends during the 2007 election cycle when Rich wasrunning for District Attorney and I was working forParty candidates. I told Rich that I needed to speak

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to him, and that I didn’t want to talk on the phone.Rich invited me up to his house in Valley Falls. Wespoke on his porch. Rich told me that he had recusedhimself and had requested a Special Prosecutor. Itold Rich that I needed a Lawyer who knew ElectionLaw. Rich told me to hire Jim Long before anyoneelse did. The next day I was in Jim’s office and Ihired him to represent me. Jim told me to refer anyPolice that may want to interview me to him.

Once I had an Attorney representing me on thematter things were more quiet for some time. I didn’thave much contact, other than City business, withany of the other persons involved in the BallotFraud. Sometime after I had heard that AnthonyDeFiglio had been interviewed and told what heknew about the Ballot Fraud. I did ask Tony Rennato go and speak to Anthony. I asked Tony to tellAnthony to get a Lawyer and I also told him that wewould try to get him some work after the wholeBallot Fraud thing was over. During that same timeI received calls from Clement Campana, MichaelLoPorto and John Brown. They were all concernedabout how much Anthony knew about the BallotFraud, and how much he told the State Police. JohnBrown and his family even got so far as to findAnthony a job in Vermont. I think it was some typeof maintenance job at a Motel. I did speak to EdMcDonough on occasions regarding his interviewswith the State Police. I told Ed to just tell the truth.Following his first interview with the State Police Edtold me that he had told Inv. Ogden that he had leftthe ballots “at City Hall”. I told Ed that he needed totell the truth about that because Kevin O’Malley waswith him and witnessed everything that happened.

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NOTICE

Penal Law § 210.45 — IN A WRITTENINSTRUMENT, ANY PERSON WHO KNOWINGLYMAKES A FALSE STATEMENT WHICH SUCHPERSON DOES NOT BELIEVE TO BE TRUE HASCOMMITTED A CRIME UNDER THE LAWS OFTHE STATE OF NEW YORK PUNISHABLE AS ACLASS A MISDEMEANOR.

AFFIRMED UNDER PENALTY OF PERJURY

This ______ day of MONTH, 20 ___

OR

SUBSCRIBED AND SWORN TO BEFORE ME

September

This 30 day of MONTH, 20 11

STATEMENT END TIME: ___________ X AM PM

SIGNATURE OF DEPONENT, WILLIAM A.MCINERNEY /s/ William McInerney

/s/ James E. LongJAMES E. LONGNotary Public, State of New YorkNo. 02LO5037605Qualified in Albany CountyCommission Expires Jan. 3, 2015

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OFFICE OF THE

DISTRICT ATTORNEY

COUNTY OF RENSSELAERRENSSELAER COUNTY COURTHOUSE

TROY, NEW YORK 12180(518) 270-4040

RICHARD J. McNALLY, JR.DISTRICT ATTORNEY

September 24, 2009

Hon. Robert M. JaconRensselaer County CourtRensselaer County CourthouseTroy, New York 12180

Re: Request for a Special ProsecutorInvestigation pertaining to Supreme CourtIndex No.: 230629Lambertsen v. Bugbee et al. filed 9-23-09

Dear Judge Jacon:

I am requesting the appointment of a SpecialDistrict Attorney to prosecute the above-mentionedmatter. County Law Section 701 authorizes asuperior criminal court to appoint a SpecialProsecutor when the District Attorney is disqualifiedfrom acting in a particular case to discharge hisduties at a term of any court.

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This matter involves a civil suit commenced inSupreme Court by the above referenced Plaintiff.Having reviewed the pleadings it appears that acriminal investigation is appropriate. In order toavoid the appearance of impropriety I make thisrequest for a special prosecutor. As such, I amrequesting that an appointment be made for allpurposes, including investigation, prosecution anddisposition.

I, therefore, respectfully request the appointmentof a Special Prosecutor in the matter.

Very truly yours,

RICHARD J. McNALLY, JR.District Attorney

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STATE OF NEW YORKCOUNTY COURT

COUNTY OF RENSSELAER_________

IN THE MATTER OF AN INVESTIGATIONPERTAINING TO RENSSELAER COUNTY

SUPREME COURT INDEX NO. 230629,CHRISTIAN LAMBERSTEN V. LAWRENCE

BUGBEE ET AL._________

Filed: 9/28/09_________

ORDER_________

In the matter of an investigation pertaining toRensselaer County Supreme Court Index No.230629, Christian Lambersten. v. Lawrence Bugbeeet al, and the District Attorney, having disqualifiedhimself and his staff from acting in this case basedon the speculation of politics and the appearance ofimpropriety and the court having determined thisdisqualification is appropriate, it is

ORDERED, that Y. Curtis Smith, Esq., whoseaddress is Smith Hernandez, LLC, RensselaerTechnology Park, 105 Jordan Road, Troy, New York12180-8376, is to act as Special District Attorney forall purposes in this matter up to and including thedisposition of this case pursuant to Section 701(1)(a)of the County Law of the State of New York.

DATED: Troy, New YorkSeptember 28, 2009

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/s/ Robert M. JaconHONORABLE ROBERT M. JACONRENSSELAER COUNTY COURT JUDGE

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STATEMENT

COUNTY OF RENSSELAERTOWN OF NORTH GREENBUSH

I, KEVIN B. McGRATH, AGE: 39 BORNON: / /71, AND RESIDING AT: 17 Red Rock Rd,Troy, NY 12182, HAVE BEEN ADVISED BY: Inv. A.W. FANCHER, OF THE NEW YORK STATEPOLICE, OF THE FOLLOWING:

I HAVE THE RIGHT TO REMAIN SILENT AND IDO NOT HAVE TO MAKE ANY STATEMENT IF IDON’T WANT TO.

IF I GIVE UP THAT RIGHT, ANYTHING I DOSAY CAN AND WILL BE USED AGAINST ME IN ACOURT OF LAW.

I HAVE THE RIGHT TO HAVE A LAWYERPRESENT BEFORE MAKING ANY STATEMENTOR AT ANY TIME DURING THIS STATEMENT.

IF I SHOULD DECIDE THAT I DO WANT ALAWYER AND CANNOT AFFORD TO HIRE ONE,A LAWYER WILL BE APPOINTED FOR ME FREEOF CHARGE AND I MAY HAVE THAT LAWYERPRESENT BEFORE MAKING ANY STATEMENT.

I ALSO UNDERSTAND THAT I HAVE THERIGHT TO STOP AT ANY TIME DURING THISSTATEMENT AND REMAIN SILENT AND HAVEA LAWYER PRESENT.

I FULLY UNDERSTAND THESE RIGHTS ANDAT THIS TIME, I AGREE TO GIVE UP MYRIGHTS AND MAKE THE FOLLOWINGSTATEMENT;

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/s/ Kevin McGrath

WITNESS SIGNATURE

I am here at the office of Attorney Trey Smith withmy Attorney Peter Moschetti regarding theRennselaer County Absentee Ballot investigation. Iam speaking with Inv. Albro Fancher and Inv. JohnOgden of the New York State Police and I fullyunderstand my rights and make the followingstatement.

I’m looking at a photocopy of and recognize theabsentee ballot application and absentee ballotenvelope of THOMAS D. DICKINSON. As I reviewMr. DICKINSON’s paperwork, I recall Mr.DICKINSON signing his name to the absentee ballotapplication. I wrote DICKINSON’s name andaddress in the upper left corner along with the nameRICK MASON on the deliver to line. When I broughtthe application to the Board of Elections on 8/24/10,EDWARD McDONOUGH pointed out that the“Dates you will be out of Rensselaer County” and“Where you will be on Election Day” lines were notfilled out on the application. I told McDONOUGHthat he was a DICKINSON is a screen printer and Iwatched McDONOUGH fill in the dates and “ScreenPrinting Conference in Syracuse” on the form. I latersaw DICKINSON at Corliss Park and he signed hisballot envelope and gave me his consent to voteDemocratic on his ballot which I did.

I am looking at a photocopy of and recognize theabsentee ballot application and absentee ballotenvelope of JENNIFER M. TAYLOR. As I review Ms.TAYLOR’s paperwork, I recall Ms. TAYLOR signing

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her name to the absentee ballot application andfilling out her name and address in the upper lefthand corner. I wrote RICK MASON’s name on thedeliver to line. When I brought the application to theBoard of Elections on 8/24/10, EDWARDMcDONOUGH pointed out that the “Dates you willbe out of Rensselaer County” and “Where you will beon Election Day” lines were not filled out on herapplication. I told McDONOUGH that she told mewhere she would be, but I could not remember whereshe said. I watched McDONOUGH write in the datesand “visiting family in Massachusetts” on theapplication. I later saw TAYLOR at Corliss Park andshe signed her ballot envelope and gave me herconsent to fill out her ballot and vote for myself,which I did.

I’m looking at a photocopy of and recognize theabsentee ballot application and absentee ballotenvelope of JOHN H. GILBERT Jr. As I review Mr.GILBERT’s paperwork, I recall Mr. GILBERT’s wifesigning his name to the absentee ballot applicationat their residence. JOHN was embarrassed about hisliteracy and had his wife sign his name for him. Iwrote JOHN’s name and address in the upper lefthand corner and MIKE LEONARD on the release toline for JOHN. I can’t specifically recall who wroteJOHN’s date of birth and “South Yarmouth CapeCod” but that is not my writing. I later returned toJOHN GILBERT’s residence and he signed his ballotenvelope and gave me his consent to fill out his ballotand vote for myself, which I did. I have known JOHNGILBERT for as many as ten years through playingflag football against him.

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I’m looking at a photocopy of and recognize theabsentee ballot application and absentee ballotenvelope of STEVE CARPENTER. As I review Mr.CARPENTER’s paperwork, I recall STEVECARPENTER signing his name to the absenteeballot application in my presence. I printed the restof the information on the application which includesSTEVE’s name and address in the upper left handcorner, my name on the release to line for STEVEand Frost Acres Campground which was where hesaid he would be. I later saw STEVE and he signedhis ballot envelope. I completed the ballot with hisdirect consent to do so. I then licked the envelope andmailed it to the BOE as I did with all of the ballots. Ihave known STEVE CARPENTER for 12-15 years aswe use to work together at Playtex in Watervliet.

I’m looking at a photocopy of and recognize theabsentee ballot application and absentee ballotenvelope of LLOYD L. NEWELL. As I review Mr.NEWELL’S paperwork, I recall LLOYD NEWELLsigning his name to the absentee ballot applicationin my presence along with his incorrect (former)address in the upper left hand corner of the form.LLOYD completed everything on the form with theexception of the name TOM ADLRICH which Iprinted on the release to line. The old address iscrossed out on the form and his current address of829 3rd Ave was later added on the form. I rememberasking ED McDONOUGH if LLOYD’s correctaddress could be added as he told me after the factthat his correct address is 829 3rd Ave. I can’t say forsure that McDONOUGH was the person whoactually made that correction on the application. Ilater saw LLOYD NEWELL and he and I together

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completed the ballot. LLOYD signed the ballot. Ithen licked the envelope and mailed the ballot to theBOE. I know LLOYD NEWELL because he went tohigh school with my daughter.

I’m looking at a photocopy of and recognize theabsentee ballot application and absentee ballotenvelope of JOSEPH M. WILEY. As I review Mr.WILEY’s paperwork, I recall being at JOSEPHWILEY’s residence and him signing his name to theabsentee ballot application and writing that hewould be in Lake George. I printed the rest of theinformation on the application which includesJOSEPH’s name and address in the upper left handcorner and MIKE LEONARD on the release to line. Imay have written the date next to his signature butcan’t say for sure. I later saw JOSEPH at his houseon 8th Ave and he signed his ballot envelope. Icompleted the ballot with JOSEPH. I then licked theenvelope and mailed it to the BOE.

I’m looking at a photocopy of the absentee ballot ofapplication and absentee ballot envelope of YARELISGONZALEZ. I spoke with YARELIS prior to theSeptember 2009 primary and helped her fill out avoter registration card. That was the only contact Ihad with her prior to the September 2009 primary. Idid not go to her with an absentee ballot applicationbut her name would have been on a list of friendly’sthat was present the Saturday prior to the Primarywhen TOM ALDRICH and DANNY BROWNcanvassed Corliss Park.

I’m looking at a photocopy of the absentee ballotapplication and absentee ballot envelope of MARCW. WELSH. I have known MARC all my life and

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grew up with his brother. I did not fill out theapplication with MARC but did introduce DANBROWN and TOM ALDRICH to MARC WELSH theSaturday prior to the September Primary. They filledout an application with him at that time. I later sawMARC with his absentee ballot and he signed hisballot envelope. I completed the ballot with MARCwith his direct consent because he has troublewriting. I licked the envelope and mailed the ballotto the BOE for MARC.

The above mentioned voters are the voters that Ihad direct contact with prior to the September 2009WFP primary in Rensselaer County. The weekendprior to the September 2009 WFP Primary, I believeI was told by MAC (BILL McINERNEY) that therewas a meeting at Grizwold Hights on SaturdaySeptember 12, 2009 to solicit support and AbsenteeBallot Applications for the WFP. That morning, Iwent to Grizwold Hights where I saw the candidates:JOHN BROWN, ROBERT MARTINIANO, CHAPPY(CLEM CAMPANA), MICHAEL LoPORTO, andGARY GALUSKI. Also there that day weredemocratic volunteers TOM ALDRICH and TONYDeFIGLIO, DAN BROWN and MAC. That morning,I gave MAC and DAN BROWN a list of friendly’s tosolicit from my district which is District 1. I toldMAC and DAN BROWN to send someone who knewhow to fill out the paperwork correctly. DANBROWN took the list from me and went to District 1with TOM ALDRICH to solicit the friendly’s on mylist. A friendly is a voter that is registered to voteand would be supportive of myself, the DemocraticParty or a candidate endorsed by the WorkingFamily’s Party. After handing off the list, I left as I

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had other things to do that day. When I left,everyone was still standing in a circle including DANBROWN and TOM ALDRICH. The purpose that daywas to solicit registered WFP voters for support inthe upcoming primary and to offer Absentee BallotApplications.

Later that day I met with DAN BROWN and TOMALDRICH at Corliss Park in the afternoon to seewhat kind of support they got. I believe DAN told methat they had obtained roughly four to six absenteeballot applications that day. I knew that theapplications would have had to of come from myfriendly list. During this time I introduced them bothto MARC WELCH. They did not originally approachMARC because he had a BOB MIRCH sticker on hisdoor. I never took possession of any absentee ballotsthat day.

On the afternoon of the day prior to the primary,Monday September 14th, 2009, I was at the Board ofElections to verify the number of my friendlyabsentee ballots to those friendly to the Republicansand BOB MIRCH. I would say this was between 4pm and 5pm that day after I got out of work. When Iwent in, JOHN BROWN was in ED McDONOUGH’soffice at the BOE. I walked into the office. Thediscussion ED and JOHN were having centeredaround the need to have names listed on each of theabsentee ballot applications which signified who eachcorresponding ballot could be released to. I took thisto mean the release to names were blank on theabsentee ballot applications they were speakingabout. During this conversation the name of theWFP chairperson JIM WELCH came up as a namethat could be entered on the release to line on the

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absentee ballot applications. I remember JOHNBROWN having JIM’s number and calling him fromhis cell phone in McDONOUGH’s office. I do notrecall JOHN ever claiming the number ofapplications to JIM at he wanted to enter JIM’sname on. At this point, it became clear to me that tobe able to solicit the actual voters for whom eachapplication was received in order to generate anabsentee ballot was an impossible task. I knew fromthe conversation that McDONOUGH and BROWNwere having because there were roughly 35applications that they were talking about. I do notremember if it was McDONOUGH or BROWN thatmentioned the number 35. I had done a lot of workobtaining absentee ballot applications prior to this soI knew it would be difficult to track people down withthe actual ballots like I had done. I was not sure whohad the applications at that point because I sawthem so I told them both to make sure that theydidn’t mess with the voters from District 1. Ispecifically mentioned MARC WELCH and told themboth that his excuse was that he was a diabetic andhad trouble working walking. I knew his applicationwas in the pile because I had seen it on Saturdaywhen I met with DAN BROWN and TOM ALDRICHat Corliss Park. I had also seen ED McDONOUGHfill in the blank excuses on the applications ofDICKINSON and TAYLOR back in August.

At that point, ED McDONOUGH told JOHNBROWN and I to leave his office because we werecandidates. JOHN and I left and made small talk aswe left. When ED McDONOUGH asked JOHN and Ito leave, I took that to mean that JIM WELCH’sname would be placed on the release to line of the 35

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absentee ballot applications that JOHN BROWN andED McDONOUGH were speaking about that dayand he didn’t want us there when it happened.

Later that night, I had a called MAC to make surethat the friendly’s who were solicited in District 1actually received their absentee ballots. I made thiscall because of what I had heard in McDONOUGH’soffice earlier and my knowledge of the absenteeballot process. MAC told me that 2 or 3 of them weregoing in. I took that to mean that 2 or 3 voters couldnot be located to fill out their absentee ballots butthat the ballots would be sent into the BOE anyway.I wasn’t happy about the votes going in but can’tremember what I said to MAC.

I spent the next day, Primary Day, making sureeveryone got to the poles and checking numbers atthe polls. Everything that day for me was oriented togetting the voters to the polls.

I believe that a day or two later, Wednesday9/16/09 or Thursday 09/17/09, the news mediastarted reporting on the fraudulent absentee ballotsand interviewing voters who had absentee ballotssubmitted in their names.

At some point after the media became involved, Icalled ED McDONOUGH and asked him what wasgoing on with the ballots. McDONOUGH said theyfucked up. When Ed said they they, I took that tomean MAC, DAN BROWN and JOHN BROWN. Ibelieve that MAC, DAN and JOHN were behind thefraudulent votes. I think ED regretted that ithappened and that he didn’t stop it. ED could havestopped the whole thing when he asked JOHNBROWN and I to leave his office that Monday prior

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to the primary. As the Democratic Commissioner ofthe BOE, that is his job.

In the following months, everyone involved wasbeing interviewed by the State Police. I had severalconversations with ED McDONOUGH during thistime period. During one of these conversations, EDMcDONOUGH told me that he told Inv. OGDENthat he had personally delivered absentee ballots toMAC’s office in Troy City Hall and left them on hisdesk. It would have had to be after I left ED’s officeon the afternoon of Monday 9/14/09 but prior to mycall to MAC later that night.

At some point after the primary but before theelection, I had a conversation with SAHAR COUCHof the state chapter of the WFP. She came up to meafter the meet the candidates’ night CYO Center. Itold her that I did not have anything to do with thefraudulent absentee ballots. I told her I kept myword and was going to give her back her party inLansingburgh.

I HAVE BEEN ADVISED BY INVESTIGATORFANCHER THAT GIVING A FALSE WRITTENSTATEMENT IS A CRIME AND THAT I CAN BEARRESTED FOR MAKING A FALSE WRITTENSTATEMENT. I HAVE READ THIS ENTIRESTATEMENT AND EVERYTHING I HAVE SAIDIN THIS STATEMENT IS THE TRUTH TO THEBEST OF MY KNOWLEDGE. (END OF STATEME

NOTICE(NYS Penal Law Sec. 210.45)

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IN A WRITTEN INSTRUMENT, ANY PERSONWHO KNOWINGLY MAKES A FALSESTATEMENT WHICH SUCH PERSON DOES NOTBELIEVE TO BE TRUE HAS COMMITTED ACRIME UNDER THE LAWS OF THE STATE OFNEW YORK PUNISHABLE AS A CLASS AMISDEMEANOR.

AFFIRMED UNDER PENALTY OF PERJURY

THIS 29th DAY OF March, 2010

SIGNATURE OF DEPONENT

/s/ Kevin McGrath

OR

SUBSCRIBED AND SWORN TO BEFORE ME

THIS ______ DAY OF ______________, 2010

SIGNATURE OF WITNESS

NAME OF PERSON TAKING STATEMENT

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STATE OF NEW YORKSUPREME COURT


THE PEOPLE OF THE STATE OF NEW YORK

-against-

EDWARD McDONOUGH and MICHAELLOPORTO,


Filed: 3/1/12_________

Decision & Order_________

Indictment #SP11-1002Index #235598

_________

APPEARANCES:

Trey Smith, Esq., Special District Attorney; MatthewC. Hug, Esq., Special District Attorney

Brian D. Premo, Esq., Attorney for EdwardMcDonough

Michael A. Felt, Esq., Attorney for Michael LoPorto

Pulver, J.

Defendants Edward McDonough (“McDonough”)and Michael LoPorto (“LoPorto”) (collectively,

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“defendants”) move in limine to dismiss theindictment or certain counts therein based on allegedprosecutorial misconduct during Grand Juryproceedings.1 In the alternative, defendants seek aplenary hearing. In addition, during the trial,McDonough sought to have introduced into evidenceexhibits marked McDonough’s BB, CC, DD; theCourt reserved ruling. The People oppose theseapplications. After first making an oral applicationfor dismissal during a conference outside of theJury’s presence, the Court directed writtensubmissions. Following review of the same, onFebruary 6, 2012, in open court but outside thepresence of the Jury, the Court entertained oralargument and now issues its decision and order.

Factual and Procedural Background

In January 2011, a Grand Jury indictedMcDonough on 38 counts of Forgery in the SecondDegree (Penal Law § 170.10 [2]) and 36 counts ofCriminal Possession of a Forged Instrument in theSecond Degree (Penal Law § 170.25). In the amendedindictment stemming from the same Grand Juryproceeding, LoPorto stands indicted on 29 counts ofCriminal Possession of Forged Instrument in theSecond Degree (Penal Law § 170.25). As part of theGrand Jury proceedings, the Special DistrictAttorney (“SDA”) presented certain affidavitsexecuted by witnesses pursuant to CPL 190.30 (3)2

1 At the oral argument, LoPorto sought, alternatively,disqualification of the SDA.

2 CPL 190.30 (3) allows an affidavit to be submitted to thegrand jury in lieu of testimony where forgery is involved andwhere such statement (affidavit) is given under oath.

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(“190.30 affidavit”) to the Grand Jury. During thiscriminal trial, two witnesses, Jermaine Joseph andJolene VanVranken, denied that they signed suchaffidavits while other witnesses acknowledgedexecuting the 190.30 affidavits.

As to Ms. VanVranken, McDonough sought tointroduce into evidence the following three exhibitsregarding Ms. VanVranken: (1) markedMcDonough’s BB, consists of her signature asprovided by her on the witness stand during crossexamination; (2) marked McDonough’s CC, consistsof her “Supporting Deposition” given to the StatePolice on December 2, 2009; and (3), markedMcDonough’s DD, is a copy of her 190.30 affidavit.McDonough sought introduction of these exhibits todemonstrate that the signature on Ms.VanVranken’s 190.30 affidavit varies from hersignature on her statement to the police, which sheacknowledged as hers, and her signature given at thetrial. The People objected on relevancy grounds. TheCourt reserved decision.

Earlier, as part of their omnibus motions,defendants moved to dismiss the indictment, interalia, on grounds of prosecutorial misconduct andinsufficient evidence, relying, in part, on CPL 210.35(5) and in further motions sought to have the SDAdisqualified, in part, on grounds alleging conduct onhis part. The Court denied those motions. In essence,defendants’ joint motion now is a renewal of thoseprior motions based, in part, on the new informationdiscussed above that has come to light during thetrial. The Court will entertain this motion to theextent discussed below.

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Dismissal Motion

Defendants contend that the indictment should bedismissed due to prosecutorial misconduct during theGrand Jury proceedings that has impaired theintegrity of those proceedings and prejudiceddefendants: Pursuant to CPL 210.20 (1) (c), a courtmay dismiss an indictment or any count thereof,inter alia, on the ground that the grand juryproceedings were defective within the meaning ofCPL 210.35.

CPL 210.35 (5) provides that a grand juryproceeding is defective when “otherwise fails toconform to the-requirements of article [190] to suchdegree that the integrity thereof is impaired andprejudice to the defendant may result” (CPL 210.35[5]). In interpreting this provision, the Court ofAppeals has held:

Dismissal of indictments under CPL 210.35 (5)should thus be limited to those instanceswhere prosecutorial wrongdoing, fraudulentconduct or errors potentially prejudice theultimate decision reached by the Grand Jury.The likelihood of prejudice turns on theparticular facts of each case, including theweight and nature of the admissible proofadduced to support the indictment and thedegree of inappropriate prosecutorial influenceor bias

(People v Huston, 88 NY2d 400, 409; see People vMoffitt, 20 AD3d 687, 688, lv denied 5 NY3d 854;People v D’Amico, 261 AD2d 633, lv denied 93 NY2d1016). Further, “the question whether a particularpresentment was so improper as to impair the

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integrity of the Grand Jury proceeding and to createthe potential for prejudice has always been treatedas a question of law” (People v Adessa, 89 NY2d 677,685).

Defendants base their argument for dismissal onthe SDA’s alleged: (1) submission of 190.30 affidavitsto the Grand Jury that were forged, (2) failure toproperly swear in the affiants during the execution ofthe 190.30 affidavits, and (3) lack of authority toadminister an oath to the 190.30 affiants.Defendants maintain that such conduct violates theirdue process rights. The SDA denies such allegations.

Alleged Forgeries

Defendants contend that the 190.30 affidavits ofthe following persons have been forged: (1) JermaineJoseph, (2) Jolene VanVranken; (3) DemetriusBanks; (4) Jessica Boomhower; (5) Lisa Chum; (6)Michael Rebel, and (7) Barton Ward. Defendantssubmit various exhibits in an attempt to show thatthe signatures on the 190.30 affidavits for theseindividuals differs from their signatures on, Interalia, their voter registration cards. Defendantssuggest that the SDA either forged the affidavits ornotarized them outside of the presence of thewitnesses.

First, the Court notes that, as to the 190.30affidavits of Jermaine Joseph, Demetrius Banks,Jessica Boomhower, and Lisa Chum, such are not atissue in this matter since they were never submittedto the Grand Jury as these voters testified in front ofthat panel. With regard to Ms. VanVranken, whileshe denied that she executed the 190.30 affidavitduring her cross examination, comparison of that

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document with her voter registration card, which sheaffirmatively testified that she had signed, revealsthat the signatures are very similar. Also, hersignature on page two her State Police statement,which she testified she signed, is similar to hersignature on the 190.30 affidavit. Further, review ofthe other witnesses’ disputed signatures on the190.30 affidavits in comparison with voterregistration cards does not reveal such discrepanciesbetween these documents at to warrant furtherinquiry.3

Furthermore, the SDA swore before the Court thathe did not “forge” or execute any affidavit in place ofany witness. In addition, the SDA at oral argumentand in his affirmation has painstakingly explainedthe procedure he implemented in having witnessesexecute 190.30 affidavits, For instance, the SDAexplained that he asked the affiants to review eachprepared affidavit, including the attacheddocuments, as the affidavit was going to be a sworndocument, and “by signing [the affiants] would beswearing that all of that was true to the best of theirknowledge.” He further noted that he thenindividually spoke with each affiant, witnessed theindividual sign the document, and affixed his notarystamp on the document in front of the affiant. Giventhis testimony and the exhibits presented by theparties, the Court rejects defendant’s argumentpremised on prosecutorial misconduct regardingalleged forgery of witness 190.30 affidavits to

3 During cross-examinations of voter witnesses, the Courtallowed defendants to explore circumstances surrounding theexecution of 190.30 affidavits.

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warrant the exceptional remedy of dismissal of theindictment or any specific counts therein or,alternatively, disqualification of the SDA (see Peoplev Davis, 83 AD3d 1210, 1211-1212, lv denied 17NY3d 794; People v Bean, 66 AD3d 1386, 1386, lvdenied 14 NY3d 769; People v D’Amico, 261 AD2d at634). Moreover, Grand Jury proceedings enjoy apresumption of regularity, which has not beenovercome here (see People v Nash, 69 AD3d 1113,1114-1115, lv denied 15 NY3d 754).

Oath

Defendants also contend that the SDA failed toswear in the witnesses, which amounts tomisconduct on his part affecting both the integrity ofthis proceeding and the sufficiency of evidenceunderpinning the indictment. As noted earlier, CPL190.30 (3) allows an affidavit to be submitted to thegrand jury in lieu of testimony where forgery isinvolved and where such statement (affidavit) isgiven under oath. “Oath” is defined by CPL 1.20 (38)to “include an affirmation and every other modeauthorized by law of attesting to the truth of thatwhich is stated” (see also Penal Law § 210.00 [1];General Construction Law § 36). Furthermore, “theform of an oath is flexible and is deemed sufficient solong as it is calculated to awaken the conscience andimpress the mind of the person taking it inaccordance with his or her or religious or ethicalbeliefs” (People v Wilson, 255 AD2d 612, 613, Ivdenied 93 NY2d 981; see Matter of Breanna M., 23Misc 3d 341, 343; CPLR 2309 [b]), Furthermore, anoath is “designed to serve two discrete functions: toalert the witness to the moral duty to testifytruthfully and to deter false testimony by

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establishing a legal basis for a perjury prosecution”(People v Parks, 41 NY2d 36, 45; see also Matter ofBreanna M., 23 Misc 3d at 343; People v Penaflorida,2011 NY Slip Op 21385 at ***3-5).

Here, after hearing argument on this issue andreviewing the parties’ submissions, the Court issatisfied that the witnesses executing the 190.30affidavits were properly sworn (accord People vHolmes, 93 NY2d 889, 891; People v Chasey, 5 AD3d815, 816, lv denied 2 NY3d 787; cf Matter of NeftaliD., 85 NY2d 631, 636). In particular, the SDA notedboth at oral argument and in his affirmation that heexplained the significance of the document that wasbeing signed, that by signing the document thewitnesses was attesting to the truth of the same, andthat there were legal consequences for not telling thetruth in the affidavit. Accordingly, the Court rejectsthis argument as a basis to dismiss the indictment.Further, the Court finds unavailing defendants’assertions that the SDA or his staff was coaching awitness or witnesses to testify that they had beenadministered an oath prior to executing the 1903.0affidavit, which the witness unequivocally testifiedthat she signed.

As to defendants’ argument that the SDA lacksauthority to administer an oath, the Court agreeswith the People that this branch of the motion isuntimely (see CPL 255.20) since defendants havebeen in possession of the 190.30 affidavits for at leasta year that reflected that the SDA had notarized themajority of them and never moved for dismissal onthis basis (see People v Peryea, 68 AD3d 1144, 1146,lv denied 14 NY3d 804; People v Crockett, 30 AD3d768, 769-770, lv denied 7 NY3d 866; People v Selby,

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53 AD2d 878, 878, affd 43 NY2d 791). In any event,the Court rejects this argument on the merits (seeExecutive Law § 135; see also Penal Law § 210.00[6]; People v Penaflorida, 2011 NY Slip Op 21385 at***3). Furthermore, nothing here suggests that theSDA has an interest in this litigation to prevent himfrom administering such an oath (see generallyMatter of Harte v Kaplan, 87 AD3d 813, 814;Brodsky v Board of Mgrs., 1 Misc 3d 591, 596-597).

Admission of Evidence

McDonough seeks admissions of exhibits markedMcDonough’s BB, CC, and DD. He contends thatsuch evidence should be admitted as it is relevant tothe issues in this case as discussed above. The Peopleobject to this evidence, arguing it is not relevant tothe trial issues — namely, whether McDonough andLoPorto are guilty of the charges in the amendedindictment The Court agrees with the People (seePeople v Aska, 91 NY2d 979, 981-982; People vScarola, 71 NY2d 769, 777]) especially in light of theCourt’s determination on defendants’ dismissalapplication. Further, even if such evidence could beconsidered somehow relevant, the probative value ofsuch evidence would be outweighed by its potentialto lead to jury confusion in a case that alreadyrequires a determination on over 70 counts and theweighing of testimony of over 50 witnesses (seePeople v. Scarola, 71 NY2d at 777). Accordingly, theCourt denies admission of McDonough’s exhibitsmarked BB, CC, and DD.

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Conclusion

In sum, the Court denies defendants’ applicationsin their entirety. The foregoing constitutes thedecision and order of this Court.

Dated: February March 1st, 2012

Troy, New York

/s/ George J. Pulver, Jr.HON. GEORGE J. PULVER, JR.Acting Supreme Court Justice

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GEN-4 (03\05)New York State Police

SUPPORTING DEPOSITION (CPL § 100.20)PAGE ____ OF ____


— VS.

____________________

____________________

DEFENDANT(S)

LOCATION OF INCIDENT:STATE OF NEW YORK LOCAL COURTCOUNTY OF RENSSELAERCITY OF TROY

LOCATION OF DEPOSITION:STATE OF NEW YORKCOUNTY OF RENSSELAERCITY OF TROY

On [DATE: 12/02/2009] at [TIME STARTED: 2:20PM] I, [FULL NAME: Jolene M. Van Vranken, / /75]state the following: I am speaking to Inv. John Owenof the New York State Police. I currently reside at 14Lockwoods Road, in the Town of Pittstown,Rensselaer County. I have lived here since this pastJune. I moved here from 510 Griswold Heights in theCity of Troy.

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Approximately a year & a half ago I was asked by afriend to register with the Working Families Party inthe City. I did register with them as a favor. Thatwas the first time I registered with any partypolitical party. I was asked to vote for a candidate.The only time I ever voted was in the Fall of 2008. Ihave never voted other than that. Inv. Ogden hasasked me if I was ever approached & asked tocomplete an application for an absentee ballotregarding the Troy City Council elections or if I evercompleted an absentee ballot for any election in Troy& specifically for the WFP Primary this pastSeptember. I would like to say that since I moved outof Troy in June I have not lived at the address of 510Griswold Heights. Since then, I have never asked for,or completed an absentee ballot application, and Ihave never completed an absentee ballot. If there isan absentee ballot application or ballot in my namein possession of the Board of Elections or the StatePolice regarding the WFP primary this pastSeptember they are both forged without my consent.I gave no person license or privilege to use my nameor to sign my name to any election document.

I have read the notice on this deposition. I dounderstand it & I swear that this is a truestatement. End.

/s/ Jolene M. Van Vranken

Statement ends @ 2:37 PM

NYSP Twp “C”

SP Brunswick

313

NOTICE(Penal Law § 210.45)

In a written instrument, any person who knowinglymakes a false statement, which such person does notbelieve to be true has committed a crime under thelaws of the state of New York punishable as a ClassA Misdemeanor.

Affirmed under penalty of perjury

This 2nd day of December, 2009

-OR-

* Subscribed and Sworn to before me this day of_______, ____

/s/ Jolene M. Van Vranken(SIGNATURE OF DEPONENT)

/s/ [ ] Van Vranken(WITNESS)

Inv. John J. Ogden

TIME ENDED: 2:37 pm

314

STATE OF NEW YORKSUPREME COURT



-against-

EDWARD MC DONOUGH and MICHAELLO PORTO,


Indictment #SP11-1002_________

TRIAL TESTIMONY OF JOLENE VANVRANKEN

County CourthouseCongress and Second StreetsTroy, New York 12180January 31, 2012.

Before:

HONORABLE GEORGE J. PULVER, JR.,Acting Supreme Court Justice.

Appearances:

For the People:TREY SMITH, ESQ., Special District Attorney,Rensselaer County, and MATTHEW C. HUG, ESQ.Special Assistant District Attorney,

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105 Jordan RoadTroy, New York.

For Defendant McDonough:BRIAN D. PREMO, ESQ.20 Corporate Woods BoulevardAlbany, New York.

For Defendant LoPorto:MICHAEL A. FEIT, ESQ.383 Clinton AvenueAlbany, New York.

EDWARD MC DONOUGH, Defendant, in person.MICHAEL LO PORTO, Defendant, in person.

JOLENE VAN VRANKEN, after first having beenduly sworn by the Clerk of the Court, was examinedand testified as follows:

THE CLERK: This sworn witness is Jolene, J-O-L-E-N-E, VanVranken, V-A-N-V-R-A-N-K-E-N.

THE COURT: All right, sir, your witness.

DIRECT EXAMINATION

BY MR. HUG:

Q. Good morning, Ms. VanVranken. Could youplease state your name for the jury?

A. Jolene VanVranken.

Q. Ms. VanVranken, where do you live?

A. I live in Pittstown, New York.

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Q. In September, 2009, did you live in the City ofTroy?

A. No.

Q. Do you know when you moved out of the Cityof Troy?

A. In the summer of 2009, June.

Q. Okay. Ma’am, are you registered to vote? Wereyou registered to vote in 2009?

A. I was registered, yes.

Q. Do you remember when you registered?

A. In 2008.

MR. HUG: Your Honor, I would like to admitPeople’s Exhibit 127 on the stipulation of the partiesas the certified voting registration form of Ms.VanVranken.

THE COURT: So admitted subject to marking.

Q. Ms. VanVranken, can you flip to the secondpage of that document? Is that the voter registrationcard for 2008?

A. Yes.

Q. Is that your handwriting?

A. Yes.

Q. Is that your signature at the bottom?

A. Yes.

Q. Did you mark which party you wanted to join?

A. Yes.

Q. Which party was that?

A. Working Families Party.

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Q. Could you briefly tell me how it was that youcame to be registered to vote?

A. Um, I was working at the Hoosick Street HessMart. I had been working there for several years,and Bob Mirch had asked me to -- he asked me if Iwas registered to vote; I said no. He asked me if Icould vote for one of his candidates, and I said yes.

Q. How did you know Mr. Mirch?

A. He was a regular into the store and also was afriend of the owners.

Q. Aside from this business relationship, did youhave any other relationship with Mr. Mirch?

A. No.

Q. Were you politically active?

A. No.

Q. After you signed that, did he take the voterregistration form from you?

A. Yes.

Q. In that election of 2008, did you vote?

A. Yes.

Q. Did you vote by absentee ballot?

A. No. I went to Carroll Hill School and voted.

Q. Did you go to the polls?

A. Yes.

Q. Went into the booth and pulled the lever?

A. Yes.

Q. And then beginning of summer of 2009, youmoved out of Griswold Heights?

A. Yes.

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MR. HUG: Your Honor, may I approach?

THE COURT: Yes, you may.

MR. HUG: At this time, the People would admitPeople’s Exhibit 128A, on stipulation of the parties, acolored copy of the absentee ballot applicationsubmitted in the name of Jolene VanVranken.

THE COURT: It may be so admitted subject tomarking.

Q. Ms. VanVranken, did you ever receive thisapplication?

A. No.

Q. Did anyone ever come to you in Pittstown andask you to sign an absentee ballot application so youcould vote in a Troy election?

A. No.

Q. Do you see the handwriting at the top of thatform?

A. Yes.

Q. Do you see your name?

A. I do.

Q. What address is it?

A. 510 Griswold Heights, Troy, New York, 12180.

Q. Was that your address in September of 2009?

A. No.

Q. Is that your proper birth date; ______, 1975?

A. Yes.

Q. Do you see that there’s some red initials thereat the top of the form?

A. Yes.

319

Q. Could you say what those initials are?

A. OTC with a P underneath it.

Q. Do you know what that means?

A. No.

Q. Do you see the name of Brant Caird as thedeliver to person?

A. Uh-huh.

Q. On the ballot?

A. Yes.

Q. Do you know Brant Caird?

A. No.

Q. Did you direct anybody to fill that in for you?

A. No.

Q. To deliver that ballot in Troy to Brant Caird?

A. No.

Q. Do you see the next section, where it says youare going to be absent from Rensselaer Countybecause of temporary illness because of kneesurgery?

A. Yes.

Q. Did you have knee surgery?

A. No.

Q. Did you ever have knee surgery?

A. No.

Q. Did you write knee surgery on there?

A. No.

Q. Did you direct anyone to do that for you?

A. No.

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Q. Do you see the signature that’s purported to beyours at the bottom of the document?

A. Yes.

Q. Is that your signature?

A. No.

Q. Does it look like your signature?

A. No, not even close.

Q. Did you direct anybody to sign this on yourbehalf?

A. No.

Q. And the date there, 9/12/09, did you writethat?

A. No.

Q. Did you direct anybody to write that for you?

A. No.

MR. HUG: Your Honor, may I approach thewitness?

THE COURT: Yes, you may.

MR. HUG: The People would like to admit People’sExhibit 129A on the stipulation of the parties. It is afour-page document, a colored photocopy of theabsentee ballot envelope and absentee ballotsubmitted in the name of Jolene VanVranken.

THE COURT: Such may be admitted subject tomarking.

Q. Ms. VanVranken, first page of that document,set of documents is the front of an envelope; is it not?

A. Yes.

Q. Have you ever seen that envelope?

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A. No.

Q. You didn’t receive that in the mail?

A. No.

Q. Do you see the computer printout at the top ofthat envelope?

A. Yes.

Q. Do you see your name?

A. Yes.

Q. What address do you see?

A. 510 Griswold Heights, Troy, New York, 12180.

Q. Was that your address in September of 2009?

A. No.

Q. Do you see any postage on that envelope?

A. No.

Q. Do you see a received stamp, a date and timestamp there from the Rensselaer County Board ofElections?

A. Yes.

Q. And is it September 15, 2009, at 3:07 p.m.?

A. Yes.

Q. Did you deliver that -- did you hand deliverthat to the Board of Elections?

A. No. I don’t even know where that is.

Q. You don’t know where the Board of Electionsis?

A. No.

Q. Could you go to the second page, please? Doyou see the back of the envelope?

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A. Yes.

Q. Do you see a date written down at the bottom?

A. Yes, September 14, 2009.

Q. Did you write that at the bottom?

A. No.

Q. Did you direct anybody to write it for you?

A. No.

Q. Do you see your signature on the other form?

A. That’s not my signature.

Q. Does it look like yours?

A. No.

O. Did you direct anybody to write it for you?

A. No.

Q. Can I have you skip over Page 3? Go to thelast page. Do you see a ballot, a paper ballot?

A. Uh-huh.

Q. And that’s for the primary election onSeptember 15, 2009?

A. That’s what it says.

Q. Do you see a box there at the far right? It says,“Working Families, 36th Election District, city,town.” It says Troy?

A. Yes.

Q. And you never received this at all?

A. No.

Q. And do you see that there’s a bar there, a listof names of candidates with little boxes that you canmark, you know, candidates of your choosing?

323

A. Yes.

Q. Did you mark this?

A. No.

Q. Did you direct anybody to mark this?

A. No.

Q. Did you intend at any time to vote in the Cityof Troy for Michael LoPorto, John Brown or ClemCampana?

A. I don’t know who they are.

MR. HUG: Thank you. I have no further questions.

CROSS-EXAMINATION

BY MR. PREMO:Q. Good afternoon.

A. Hello.

Q. Ms. VanVranken, my name is Brian Premo.We have never met before; have we?

A. No.

Q. How old are you?

A. I will be 37 in February.

Q. Back in 2007, was your handwriting the sameas it is today?

A. Yes.

Q. Back in 2009, was your handwriting the sameas it is today?

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Supreme Court of the United States · 2019-07-22 · No. 18-485 IN THE Supreme Court of the United...

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Transcript of Supreme Court of the United States · 2019-07-22 · No. 18-485 IN THE Supreme Court of the United...