STATE OF NEW YORK

{'
G$ COUNTY COURT CHAMBERS
RENSSELAER COUNTY COURTHOUSE
TROY, NEW YORK 12180
(518) 788-9524
soberchambers@nycourts. gov

JENNITER G. SOBER JULIE N. LAQUIDARA

]UDGE I,AW CI,ERK

Iuly 29,2019

(VIA EMAIL AND REGULAR MAIL)

Bridget Holohan Scally, Esq.

Assistant Attomey General
Public Integrity Bureau
The Capitol
Albany, New York 12224

(VIA EMAIL AND REGULAR MAIL) (VIA EMAIL AND REGULARMAIL)

Michael P. McDermott, Esq. Marc R. Pallozzi, Esq.

O'Connell and Aronowitz Ianniello Anderson, PC
Attomeys lbr Andrew J. Donovan Attorneys for James E. Lance, III
54 State Street 805 Route 146
Albany, New York 12207 Northu,ay Nine Plaza
Clifton Park. New York 12065

Re: People v. Donovan and Lance. III

lndictment No.: AG-l 9-101 7
lndex No.: 262340
Omnibus Motion

Dear Counselors

Enclosed please find a copy of the Court's "Decision and Order" in the above-captioned
matter

yours.

.Tennifer G. Sober
County Court Judge

JGS:jnl
Enclosure
cc: Rensselaer County Supreme and County Court Clerk's Office (doriginal D&O)
STATE OF NEW YORK
COLTNTY COURT COUNTY OF RENSSELAER

THE PEOPLE OF THE STATE OF NEW YORK,

-against- DECISION AND ORDER

ANDREW J. DONOVAn- and Indictment No. : AG-1 9- I 0 I 7

JAMES E. LANCE, III, Index No.: 262340

Del'endants.

APPEARANCES

HON. LETITIA JAMES

ATTORNEY GENERAL OF THE STATE OF NEW YORK
(Bridget Holohan Scally, Esq., of Counsel)
Public Integrity Bureau
The Capitol
Albany, New York 12224

O'CONNELL AND ARONOWITZ

(Michael P. McDermott, Esq., of Counsel)
Attomeys for ANDREW J. DONOVAN
54 State Street
Albany, New Y ork 12207

IANNIELLO ANDERSON. PC
(Marc R. Pallozzi, Esq., of Counsel)
Attomeys for JAMES E. LANCE' III
805 Route 146
Northway Nine Plaza
Clifton Park. New York 12065

SOBER. J.:

on February 21,2019. Defendant Donovan was charged individually by indictment with

Grand Larceny in the Second Degree as a Pubtic Corruption crime (count one), a class B felonl
(Penal Law $$,l55.40t11 and 496.06); Conupting the Government in the Second Degree (Coun1
Two), a class C felony (Penal Law $496.04); and Defrauding the Govemment (Count Three), a class

1
E l'elony (PenalLaw 6195.20[a] []). Defendant Lance was charged individually by same indictment
with Tampering with Public Records in the First Degree (Count Four)r, a class D felony (Penal Law
$175.25) and Criminal Facilitation in the Fourth Degree (Count Eight), a class A misdemeanor
(Penal Law S115.00). Def'endants were each charged by same indictment with Offering a False
lnstrument for Filing in the First Degree (Count Five), a class E lelony (Penal La*'9175.35[]);
Falsifring Business Records in the First Degree (Count Six), a class E felony (Penal Law g 175.10):
and Ofllcial Misconduct (Count Seven), a class A misdemeanor (Penal Law $195.00).

Def'endant Lance filed a "Notice of Motion'' with supporting affirmation and exhibits on
April 12, 2019, and Defendant Donovan filed an "Affirmation in Support ofDefendant's Omnibus
Motion" with accompanying exhibits on April 22.2019. Thereafter, the People filed two (2)
separate opposition papers together with accompanying exhibits and "Memorandum of Law in
Opposition to Defendant's Omnibus Motion" on May 6, 2019.

Defective Grand Jury Presentation

Preliminarily, with respect to the Grand Jury vote against Defendant Lance,r the Court notes
that atthe conclusion ofthe People's presentation on February 7, 2019, the Grand Jury had not voted
either to indict or dismiss Counts Three though Eight (but had voted to dismiss Counts One and
Two).3 After confirming with the Foreperson that the voting had reflected the Grand Jury's action
to date, the People immediately ended deliberations and advised that additional evidence would be
presented on a subsequent date.

Thereafter, on February 13,2019, and prior to the presentation ofadditional evidence, the
People read an instruction to the Grand Jury modeled after the New York "Criminal Jury
lnstructions" approved to be given to a deadlocked petit or trial jury (i.e. an "Allen" charge: see,
Allen v. United States, 161 L'.5. 192 118961). At the completion ofthe People's presentation o
additional evidence, the Foreperson advised the People that they had now voted to indict Delendan
Lance on Count Six, but could not reach an agreement either to indict or dismiss Counts Three
through Five and Counts Seven through Eight against Defendant Lance. The People again told the
Grand Jury that they must continue deliberating before the panel was dismissed for the day.

Deliberations resumed on February 19,2019 at which time the Grand Jury voted to indic
Counts Four, Five, Seven and Eight against Del'endant Lance. and to dismiss Count Three.

The Court notes that the People have consented to Defendant Lance's request to dismiss Count Four ofthe Indictmen
dated February 21, 20 J9.
l
The Grand Jury had already voted to indict Counts One through Three and Five through Seven against Defendan
Donovan.

' Suid Cornt, d irectly to the Indictment dated February 2l , 2019

"orr"spond
2
 CPL $190.60 provides, in relevant part, that "[a]fter hearing and examining evidence... a
grand jury may (1) [i]ndict a person for an offense... (4) [d]ismiss the charges before it..." or take
some other affirmative action. Without any alfirmative action taken by the grand jury, the
prosecution may ask a grand jury to "cease deliberations" in order to allow them to ''present
additional evidence" for their consideration without leave of the Court /See, People v. Aaron,s, 2
N.Y.3d 517 [2004)

Here. the Grand Jury initially did not vote to dismiss, indict or take any affirmative action
with respect to Counts Three though Eight against Delendant Lance nor did the Grand Jury request
additional guidance or indicate that they wanted to vote again. Despite this, the People then
intervened in the proceeding. insisting on presenting additional testimonial evidence. The People
also instructed the Crand Jury to go back and continue to deliberate not once, but twice using an
improper charge intended for a trial jury. Following this. the Grand Jury requested a read-back of
Investigator Spencer's testimony regarding statements made by Def'endant Lance, which would tend
to support an indictment against him.

The Court finds that although the People's instruction was not patently coercive, it was
nonetheless legally incorrect as a grandjury has no duty to vote to authorize that any action be taken
in any particular case. (See, I' ell 13 Misc.3d 809 [Bronx Sup. Ct., 201q, Peo le v
Sullivan 68 N.Y.2d 195 [1986J. see also. CPL !190.60). Further, the Court finds that Defendant
Lance was potentially prejudiced by the People's improper charge as it tainted the Grand Jury's
subsequent proceedings to the extent that the overall integrity olthe Grand Jury proceeding was
compromised 1See. Cam ell 13 Misc.3d at 815: see also, Peonle v. Montanez. 90 N.Y.2d 690
F9971) Accordingly, Defendant Lance's motion to dismiss the indictment for defective grandjury
proceeding is granted (See, {:PL !210.35[5]).

Factual and Legal lnsulllciency

Turning to the indictment itself, upon review, the Court finds that it is both factually and
legally insufficient to sustain an indictment against either Defendant.

In December of 2014, Defendant Donovan, former Engineer for the City of Troy, submitted
a
a proposal to purchase an unimproved lot located 226 Cemetery Road in the City of Troy. His
purchase proposal was approved by the Troy City Council, and thereafter, a "Quit Claim Deed"
thereinafter also referred to as "Deed") was conveyed to Defendant Lance on June 4, 2015, and
recorded in the Rensselaer Countv Clerk's Otfice on June 10. 2015.

The Deed contained a "Right of Reacquisition" clause that specified, in relevant parl. thaq
the "conveyance is made upon the express condition that the property be in conformance uith t!
building. housing and lire orevention codes of the City ofTroy and the State olNew York withinl
six (6) months after the recording of this deed in the Office of the Rensselaer Counlv Clerk-rl

On September 28, 2015, Defendant Lance, a Code Inspector for the City ofTroy, performed]

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an inspection ofthe property at Del'endant Donovan's request, and drafted a "reverter" releasea letter
the same day. Based upon same, the Mayor lbr the City of Troy executed a ''Waiver and Release"
ofthe "Right of Reacquisition" clause on March 2, 2016. Thereafter. Defendant Donovan listed the
property for sale seeking a substantial profit. and raising the ire olTroy City Council members who
requested an investigation be conducted by Attorney General which was then authorized by the New
York State Potice /See. Executive Law $63[3]1.

Each Defendant urges that there was no violation of the "Right of Reacquisition" clause
because the property was already compliant with the applicable building. housing and fire prevention
codes at the time ofthe conveyance (as the codes only apply to property containing a building or
structure. the "Right olReacquisition'' clause was inapplicable to the property in question), and even
zoning ordinances (although each Defendant argues compliance with zoning ordinances was not a
requirement ofthe "Right of Reacquisition" clause). The People argue that this strict interpretation
ofthe "Right of Reacquisition" clause ignores the intent ofthe parties as well as local law. Instead,
the People focus on the ''Terms of Sale" lor Surplus City Property outlined in the Troy City Code
which provides that with vacant land purchased for building purposes "a building shall be erected
ofsuch type olconstruction as to... comply with building, housing and fire prevention codes within
one (1) year after the date of closing.'' The People also argue that even ilthe property was not
purchased lbr building purposes (which they have contended throughout), the "Terms of Sale" for
Surplus City Property is still applicable and mandates that such vacant property "be cleaned and
maintained so as not to be a nuisance or detriment to its neighborhood within six (6) months after
the date closing." Finally, the People argue. presumably based on the "Terms of Sale", that the
nuisance codes lbr the City of Troy were applicable, and Defendant Donovan did not comply. It is
important to note that the People failed to even present to the members of the Grand Jury any
documentary evidence of the subject provisions of the Troy City Code.

The Cou( finds that no additional conditions are imposed by the terms of the "Right of]
Reacquisition" other than as set forth in the body ofthe Deed as no other conditions were recorded
in the Office olthe Rensselaer County Clerk. "[A] court will only look outside the four corners of
the deed to establish the intent ol the parties u,hen, unlike here, that instrument is found to be
ambiguous." (See, Pepev. Antlers qf Raauette Lake. lnc.87 A.D.3d785,787 [3"tDept.,20llJ).
Accordingly, as the aclual language ofthe "Right of Reacquisition" clause controls, there was no
violation olsame by either Defendant, and therefore, no corresponding criminal liability. Had the
Court concluded that Defendant Donovan was not compliant with the applicable building, housing
and lire prevention codes, which it does not. the "Right of Reacquisition" clause also requires
compliance with same within six (6) months after recording. The Quit Claim Deed was recorded
in the Office ofthe Rensselaer County Clerk on June 10,2015, and the prope(y was inspected less
than four (4) months later on September 28. 2015. Accordingly, Defendant Donovan's time to
comply had clearly not expired. The People's reliance on the "Terms of Sale" for Surplus City

The Court shall treat the "reverter" release letter as a "reacquisition" release letter applicable to the "Right of
Reacquisition" as set forth in the subject Deed.

4
Property (whether the purchase was for building purposes or not) is also untimely, and therefore,
cannot serve as a basis fbr a violation. Further, nuisance codes lbr the City of Troy that relate to
abandoned vehicles on undeveloped property are beyond the scope of the "Right of
Reacquisition"clause, and also prior require notice 1'rom the City ofTroy that the vehicle must be
removed.

Accordingly, the Court concludes that the evidence presented to the Grand Jury was legally
and factually insufficient, and each Defendant's motion to dismiss the indictment is granted as set
forth herein with prejudice (See, CPL,s210.20). Given the Court's ruling herein, each Defendant's
separate applications to dismiss the indictment on alternative grounds are moot.

This shall constitute the Decision and Order ofthe Clourt.

DATED: luly 26,2019

Troy, New York
/Z---
,4
NNIFER G. SOBER
UNTY COURT.IUDCE

Papers considered:

"Notice of Motion" of Defendant Lance dated April I l. 2019 together with accompanying
"Attorney's Affirmation" dated April 11,2019 and exhibits;

"People's Opposition to Defendant's Omnibus Motion" dated May 6,2019 together with
accompanying exhibits and "Memorandum of Law in Opposition to Defendant's Omnibus Motion"
dated May 6,20191'

"Affirmation in Support of Deftndant's Omnibus Motion" of Defendant Donovan dated April 22,
2019 together with accompanying exhibits: and

"People's Opposition to Defendant's Omnibus Motion" dated May 6, 2019 together with
accompanying exhibits and "Memorandum of Law in Opposition to Delbndant's Omnibus Motion"
dated May 6.2019.