Appeals court reverses last open ‘Flush the Johns’ case

An Oceanside man accused of patronizing a prostitute has lost his bid to have the charges dismissed on grounds that police lacked probable cause to arrest him and improperly seized the $100 he allegedly placed on a hotel room dresser.

An appeals court ruled last week that a District Court judge in Hempstead had erred when she suppressed the $100 as evidence. The Appellate Term, which reviews misdemeanors, returned the case of Scott Frankel to the lower Hempstead court for further proceedings.

Frankel, 50, was among 104 men arrested in April and May of 2013 in a Nassau anti-prostitution sting dubbed “Flush the Johns.” His is the only remaining open case, the Nassau district attorney’s office confirmed Monday. He did not return telephone calls for comment.

Judge Sharon Gianelli, now a Supreme Court justice, had ruled that prosecutors had not elicited testimony from the undercover officer who got a telephone call from Frankel in which they arranged to meet in a hotel room on April 26, 2013.

Absent that testimony, Gianelli ruled, prosecutors had failed to establish that the $100 was in return for sex, and police did not have probable cause to arrest Frankel.

The appeals court disagreed, ruling that the testimony of another officer who overheard the call was sufficient to establish probable cause for an arrest.

Frankel had no reasonable expectation of privacy in a hotel room that he did not rent, so the seizure of the $100 was not improper, the appeals court added.

In June 2013, then-Nassau District Attorney Kathleen Rice announced the results of the sting and insisted there would be no plea bargains. All the defendants would have to plead guilty to patronizing a prostitute in the third degree, a misdemeanor that carries a penalty of up to 1 year in jail, she said.

Several defense attorneys said Rice’s position prompted their clients to mount protracted pretrial challenges in an attempt to avoid having a criminal record, and six of the seven cases that went to trial resulted in acquittals. More than 80 men eventually pleaded guilty to either the misdmeanor patronizing charge or disorderly conduct, a violation.

A year later, on June 3, 2014, Rice revealed that she had changed her policy. The men would be allowed to plead to a reduced charge that would leave them without a criminal record if they took an awareness class on prostitution.

A total of 67 men took the reduced plea, a spokesman said Monday.

The one man convicted at trial was later allowed to take the reduced plea.