A Suffolk County Court judge on Tuesday granted the Suffolk district attorney's request to seal a motion in a major drug case that quoted from grand jury testimony, and threatened the defense attorney who wrote the motion with contempt, according to the lawyer.
The proceedings before Judge Timothy Mazzei in Suffolk County Criminal Court in Riverhead stemmed from defense attorney Peter Smith's filing of a motion to dismiss a case against Shinnecock Nation tribe member Justin Eleazer.
Eleazer is charged in a multicount indictment with operating a major drug ring in and around the Shinnecock reservation in Southampton. He has pleaded not guilty and is being held at the Suffolk County Correctional Facility.
Smith, through new state bail reform and discovery rules, gained access to grand jury minutes. In his motion to dismiss the case against Eleazer, Smith used grand jury testimony to show what he termed a detective's "personal biases" and the officer's "inaccurate and at times false" grand jury testimony.
Newsday reported on the motion on Monday.
The district attorney's office on Monday filed a request seeking to seal Smith's motion and calling for sanctions against him. The office also sought dismissal of the motion.
Mazzei, according to court public information officer Mary Porter, granted the order to seal Smith's motion and will rule on the district attorney's request for sanctions at a hearing on July 7.
In an interview after the proceedings Tuesday, Smith said Mazzei threatened him with contempt for "respectfully declining" to answer a question about whether he knew how Newsday obtained a copy of his motion. Smith said he did not provide the copy.
Smith also said Mazzei told him to bring his toothbrush on July 7, indicating he might jail Smith if he continued to decline to answer the question.
Mazzei, in a brief telephone conversation, declined to comment.
In what could prove a test of new bail reform and discovery rules that took effect in January, the district attorney is arguing that release of the grand jury testimony violated a stipulation order signed by Smith earlier this year.
The district attorney's office argued dissemination of the testimony, “has the potential to place the witnesses at further risk of retaliation.”
A judge had signed a protective order that barred lawyers in the case from copying, sharing or distributing content and the “nature of grand jury minutes … ,” according to the district attorney's filing.
According to grand jury testimony cited in Eleazer's motion, Southampton Village Police Det. Michael Horstman raised the specter of danger for non-tribe members who venture onto the Shinnecock reservation.
“Anybody who doesn’t belong there, who doesn’t live there or if they are not purchasing narcotics, they’re not welcome,” Horstman told grand jurors, according to the motion.
Shinnecock tribal members "will chase you off,” Horstman testified. “They will corner you. And there has [sic] been several people assaulted for those same reasons.”
The Shinnecock Nation hosts an annual powwow that brings tens of thousands of nontribal members to the reservation each year.
The district attorney’s request to seal Eleazer's motion to dismiss the case doesn’t refer to any specific material in Eleazer's court filing.
But the district attorney's request does refer to two incidents that occurred after charges were filed against Eleazer in October.
“The indictment alleged an extensive organized criminal enterprise with individuals that were also charged with possessing weapons,” states the district attorney's filing.
The district attorney's request notes “there was a murder that occurred by one of the co-defendants” during the drug investigation.
The request also refers to an arson on the Shinnecock reservation involving the “personal property of one of the co-defendants and included the word ‘Rat’ being written” on the property. That co-defendant, witnesses and “perceived cooperators” also were subjected to threats, states the order request.
The district attorney’s office in its request to seal Smith's motion refers to an inquiry from Newsday to the district attorney's office about Smith's motion.
“It is unclear how the reporter knew the exact date of Peter Smith filed [sic] his motion with the Clerk’s Office or how he obtained a copy,” wrote the district attorney's office wrote.
In an email, Smith said the district attorney’s office waited five days after initially receiving his motion on June 24 before requesting that it be sealed. Smith said he emailed the motion to Mazzei, the judge's law secretary, the clerk of the Criminal Court and Assistant District Attorney Ryan Hunter.
“I believe my motion may be one of the first examples of what the [state] legislature intended to afford a defendant with some fundamental fairness,” Smith wrote.
Rule changes that went into effect Jan. 1 give defense attorneys access to materials including grant jury testimony, witness statements and other evidence that can help their cases early in the discovery process.