Prosecutors admitted in court Tuesday to adding pencil markings to "make notes" on three payrolls that were evidence in an upcoming prevailing wage trial, a move that prompted defense attorneys to say they may ask for a mistrial.
Justice Fernando Camacho said before jury selection continued Tuesday in Central Islip that Assistant District Attorney Leslie Stevens used pencil markings on three certified payrolls to change the dates and/or the work order numbers.
Camacho said those markings were on the documents when they were shown to a grand jury and were entered into evidence in the 492-count indictment against Clara Datre and her children, Thomas Datre Jr. and Gia Gatien.
Prosecutors allege that the Datres defrauded the Town of Islip of $148,504 and illegally pocketed an additional $100,000 when they denied their workers state-mandated prevailing wages for work coinciding with a tree-trimming contract with the town.
Clara Datre, of Hauppauge; Thomas Datre Jr., of St. James; and Gatien, of Hauppauge, have all pleaded not guilty.
Edward Heilig, who is trying the case with Stevens, said in court that Stevens "made certain notations" in pencil on those three certified payrolls "in order to conform, in her mind, the three certified payrolls to match the information" on the work order that was attached to those payrolls that corresponded with information on the certification page.
Heilig said he believed the defendants submitted the erroneous paperwork to the town and that it was "impossible for that work order that was listed on that certified payroll to be the one" that matched the document submitted.
"Nothing was obscured, nothing was changed, nothing was removed, nothing was altered," Heilig said.
Stevens, at some point thereafter, "removed those pencil markings in order to keep the documents in their original position," Heilig said.
Kevin Kearon, attorney for Thomas Datre Jr., called the admission "stunning" and said he may make a motion for a mistrial in court Wednesday morning.
"They [prosecutors] received original documents from the Town of Islip, evaluated those documents in preparation for a presentation to go back to the grand jury, didn't like what they saw, saw some type of mistake, [and] intentionally made some alterations to substantive facts," Kearon said.
Andrew Campanelli, who represents Clara Datre and Daytree at Cortland Square, said the admission "throws all of our accountings off . . . and throws the defense out of whack."
Less than a week ago, Campanelli said he believed it was town employees who changed information on key financial documents while under pressure from their bosses.
Camacho will hear motions Wednesday morning, including from prosecutors who because of the admission have offered to drop six counts relating to falsifying records and offering a false instrument for filing. Prosecutors also said they would lower a seventh count relating to prevailing wage from a D felony to an E felony.
Stevens did not speak in court and she and Heilig declined to comment outside of court.
In an emailed statement, Robert Clifford, spokesman for Suffolk County District Attorney Thomas Spota, wrote: "During the preparation of this complex case a prosecutor made notations in pencil on exhibits in order to help keep track of them. After prosecutors disclosed this fact to the court, the judge determined that the actions were not taken in bad faith. In an exercise of extreme caution, the district attorney's office has agreed to dismiss the six counts involving the three effected exhibits."
Clifford added that prosecutors "will oppose any further motions by the defense on this issue including any application for a mistrial."
In response to the DA's statement, Kearon said, "Judge Camacho has made no determination on these issues. He has instructed us to make an argument in the morning and that's what we're going to do."