An attorney representing the owners of the Hampton Bays Diner in their long-delayed trial regarding alleged code violations decried the Southampton Town Board’s recent appointment of a special prosecutor to the case, charging that the person picked creates a conflict of interest that would allow the prosecution to “forum shop” for a more favorable court.
Early last week, the Town Board announced that it had hired Jeltje deJong, of Smithtown-based Devitt Spellman Barrett, to prosecute Frank and Maria Vlahadamis, the owners of the Montauk Highway diner, for allegedly violating the town code when they converted their restaurant to a nightclub on certain evenings.
The attorney for the Vlahadamises, Andrew Campanelli, said in a hearing on Friday that by selecting Ms. deJong as a special prosecutor the town was creating a conflict of interest with the Justice Court judges, all of whom were represented by Ms. deJong in a separate civil lawsuit filed against the court in January 2009 by Anthony J. Ceparano and is now closed. Mr. Ceparano, a current inmate of the Suffolk County Jail in Riverside, had been alleging that an erroneously issued warrant for his arrest in 2006 by one of the town justices resulted in his unlawful arrest. He lost the case and the subsequent appeal.
On Tuesday, Town Attorney Tiffany Scarlato pointed out that Ms. deJong also is representing the Justice Court in a still active lawsuit filed in 2007 by Donald MacPherson, who is also currently incarcerated for his role in a mortgage fraud scheme targeting the East End, accusing the town of discriminatory practices in the enforcement of its code. The crux of the lawsuit centered around the constitutionality of the town’s code regarding seasonal rentals. The trial, which took place in U.S. District Court, also went in favor of the town, but Mr. MacPherson could still appeal the ruling, so the case remains open.
Because of the court’s previous association with Ms. deJong, Mr. Campanelli argued, all the town’s judges would have to recuse themselves from the trial involving her clients—meaning the case would have to be moved to another jurisdiction, one with an inferior knowledge of the town code, he said.
“The town should not be able to forum shop because they don’t want their case to be heard by judges that are familiar with their zoning laws,” he said. “The fact that they did this five years in is unacceptable.”
Mr. Campanelli made the motion to block Ms. deJong from joining the prosecution in front of Judge Deborah Kooperstein, who had not previously presided over the case, during Friday’s hearing at Town Justice Court in Hampton Bays.
Ms. Kooperstein did not hand down a ruling on Friday, electing instead to seek counsel from the other judges about how to best handle the situation. She did, however, say that because a previous relationship between her and Ms. deJong does exist, it would be impossible for her actions to be interpreted as impartial if she were presiding over the case.
“It would be unfair to allow someone who has acted as my attorney to stand and prosecute in front of me. She was my lawyer and did an admirable job for us,” the judge said. “If I were to fail to recuse myself, I could be committing judicial misconduct.”
Ms. Scarlato argued that because it was not guaranteed that all the justices would recuse themselves from the case, it would not be fair to say the prosecution was engaged in forum shopping, or seeking out a more favorable court to present its case.
“The reason Jeltje deJong is on the case is for continuity, because she is representing the town in the federal trial that will pick up in October,” Ms. Scarlato said. “Mr. Campanelli is representing them in that trial as well. If he can represent in both cases, so can Jeltje.”
The first case in question was filed against the Justice Court in U.S. District Court in the Eastern District of New York on January 28, 2009, by Mr. Ceparano. He alleged that an erroneously issued warrant signed by one of the judges, which resulted in his unlawful arrest, caused him considerable emotional damage.
According to online records, the case was closed on May 17, 2010, with the court ruling in favor of the Justice Court. An appeal was filed on July 22, 2010, by Mr. Ceparano, who acted as his own attorney throughout the litigation, but that ruling went against him as well.
Ms. Kooperstein scheduled the parties to reconvene on Tuesday, July 23, at 9 a.m., but a ruling is expected to be reached and disseminated before then.
The charges against the owners of the Hampton Bays Diner were filed in 2008 for the supposedly unlawful conversion of the restaurant despite the town granting a permit for a bar in the back of the venue in 2005.
The Vlahadamises have filed a civil suit against the Southampton Town Police that seeks $55 million in damages and alleges that the department discriminated against them and targeted the restaurant’s “Hispanic Night” with what they described as “Gestapo-like tactics.” That case, during which Ms. deJong acted as special counsel to the town, ended in a hung jury and a second installment is set to go to trial in October.
Mr. Campanelli argued that Ms. deJong’s involvement in that matter also presents a conflict of interest.
“Jeltje deJong has a personal stake in the outcome of this [criminal] case, because it would bolster her cause in the civil case,” he said. “Jeltje and her firm cannot resolve these issues … she cannot handle this case, with all due respect.”