The Suffolk district attorney's office and an ex-detective's defense team want his conviction tossed for leaking to Newsday, after an investigation found that the county's disgraced former top prosecutor and his chief aide pursued the case for "unconstitutionally vindictive reasons."
In a motion filed in state Supreme Court Tuesday, Garden City-based defense attorneys Donna Aldea and Bruce Barket argued the conviction of former Det. John Oliva should be vacated because he pleaded guilty "through duress" and as a result of "direct threats" to harm the career of his brother-in-law by Christopher McPartland, a top prosecutor in the office of former District Attorney Thomas Spota.
Spota and McPartland, now convicted felons, had obtained a court-sanctioned wiretap on Oliva’s phone through "misrepresentations and fraud upon the court," and used personal information from listening to his conversations over four months to "coerce" his guilty plea, according to the motion. The charge of official misconduct should have never been filed, the lawyers argued, because Oliva had no intent to "obtain a benefit or deprive another person of a benefit" — a requirement of the statute — but only provided the information to Newsday to publicly expose police department corruption.
Acting state Supreme Court Justice Fernando Camacho, the same judge who granted the wiretap and presided over Oliva's prosecution, is scheduled to hear arguments on the motion in a Riverhead courtroom Thursday afternoon.
In a 30-page affirmation in support of the motion, Suffolk prosecutor Howard S. Master, who heads the office's Conviction Integrity Bureau, said an investigation by the bureau has "substantiated" Oliva's claims. Oliva was interviewed as part of the probe.
"The testimony and judicial findings in the Spota case, which have been corroborated by the CIB's own investigation, establish that Oliva was investigated and prosecuted for unconstitionally vindictive reasons," Master wrote. "In particular, Oliva was targeted for investigation and prosecution at the outset in order to punish him for becoming an enemy of Spota, McPartland and [ex-Suffolk police chief James] Burke and because he represented a threat to their corrupt hold on power."
Master added: "Oliva was unlawfully and impermissibly targeted for an unprecedented wiretap investigation and prosecution by the most senior law enforcement officials in Suffolk County for vindictive reasons and that those individuals would not have targeted him for criminal sanction but for their desire to harm and retaliate against him."
Oliva, a 20-year police department veteran, pleaded guilty on Sept. 9, 2014 to a misdemeanor charge of official misconduct and was sentenced to a conditional discharge for providing information to Newsday reporter Tania Lopez about a string of gunpoint robberies. Oliva, who was also forced to retire, maintains he did not leak the information.
The prosecution of Oliva and the wiretapping of his phone were both the subject of extensive testimony at the 2019 trial of Spota and former public corruption prosecutor McPartland, who were both sentenced to five years in federal prison on charges including obstruction of justice and witness tampering for orchestrating the cover-up of a prisoner beating by Burke.
Witnesses testified during the trial that Oliva, who worked on a federal gang task force before Burke removed him, was perceived as an enemy of Spota, McPartland and Burke and the trio sought to retaliate against him.
One witness testified that Oliva’s arrest and prosecution had instilled fear into other officers that crossing the three men would lead to a similar fate. And a new phrase was coined among cops — to be "Oliva'd."
Spota and McPartland’s attorneys had argued at trial that Oliva's conduct had endangered his fellow officers, which had been the basis for McPartland's initial wiretap affidavit. But Master wrote that the affidavit contained a "materially false statement."
"McPartland's employment of false information to obtain a wiretap that lacked legal support and his misuse of the prosecution as a threat to others who might consider cooperating with a federal civil rights investigation, support the conclusion that this prosecution was infected by unconstitutional motives," Master wrote.
U.S. District Court Judge Joan Azrack, who presided over the trial of Spota and McPartland, said "retaliatory motives" had played a role in the prosecution of Oliva as she sentenced the men to five-year prison terms in August. Burke also served most of a 46-month prison term for his role in covering up the prisoner beating.