The forgery and forged instrument indictment that cost Olean City Court security officer Phillip L. Barrett his job last year was dismissed Wednesday in Little Valley by Cattaraugus County Judge Ronald D. Ploetz because an assistant district attorney and not the special prosecutor who had taken over the case had presented the case to a grand jury “without authority to do so” under state law.
The judge gave Raymond Bulson, the Portville lawyer named special prosecutor on the case last year because Barrett had previously worked closely with the Cattaraugus County district attorney’s office, the option of seeking permission to present the case to another grand jury.
Edward C. Cosgrove, Barrett’s lawyer, said he will vigorously fight any effort to reopen the case against the still unemployed Barrett.
Bulson could not be reached to comment Wednesday.
Cosgrove said Barrett, 39, of Hinsdale, has not worked since he was fired from his Olean City Court job on Sept. 27, 2012, when he was initially charged with forging the name of a Little Valley veterinarian on four rabies vaccine certificates issued to local dog owners.
Cosgrove insisted that Barrett, whom he described as a well-known former employee and activist for the Cattaraugus County SPCA in addition to his court work, had permission to place the name of Dr. Timothy O’Leary of Little Valley’s Almost Home Animal Sanctuary on those certificates.
O’Leary advised the Cattaraugus County Sheriff’s office early in 2012 that he had given Barrett permission to place his name on dozens of rabies certificates.
In the judge’s three-page ruling dismissing the Barrett indictment, Ploetz noted the special prosecutor was present when the grand jury began hearing evidence in the Barrett case last Dec. 6. Bulson, the special prosecutor, noted that Barrett had asked to testify before the grand jury but Bulson told the grand jurors he had refused the suspect’s request because it was not in writing.”
There was evidence grand jurors had questions about Barrett testifying, but by the time they got to vote on the charges later that day “for some unknown reason and apparently unbeknownst to the special prosecutor, an assistant district attorney (of Cattaraugus County) instructed and advised the grand jury,” according to the judge’s decision.
The judge noted that Cattaraugus County District Attorney Lori Pettit Rieman had moved to disqualify herself and her office from the case and had been granted that permission, resulting in the appointment of the special prosecutor under terms of New York State’s County Law.
Under that state law “the appointment of a special prosecutor to replace the district attorney in a particular matter terminates the latter’s authority with respect to any further proceedings in the case,” meaning the assistant district attorney “who appeared before the grand jury here was without authority to do so.”
Because that prosecutor was legally an “unauthorized prosecutor, prejudice is likely to result and the indictment must be dismissed,” according to the judge’s order.