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Public defender argues prosecutors violated double jeopardy


CANTON — St. Lawrence County Judge Jerome J. Richards reserved his ruling Tuesday on a defense motion to dismiss a felony driving while intoxicated indictment against a Gouverneur man that was handed up after he already had accepted an assistant district attorney’s plea deal admitting to misdemeanor charges in connection with the same case.

And even as the St. Lawrence County District Attorney’s Office is opposing Public Defender Stephen D. Button’s motion, Assistant District Attorney Joshua HaberkornHalm said Tuesday that prosecutors were prepared to honor the plea offer that was contested in the first place.

“That would be acknowledging that our motion is invalid,” Mr. Button countered in rejecting the offer that would have allowed defendant Mark W. McIntosh to plead guilty to misdemeanor charges without settling the question of whether Mr. McIntosh’s rights were violated after an apparent clerical error derailed a plea deal in Fowler Town Court and propelled the case to a grand jury and County Court.

Mr. McIntosh, 42, of 233 Doane Road, was arrested Sept. 8 following a traffic stop on Route 58 in Fowler, after which his blood alcohol content was measured at 0.18 percent, state police said. Under state law, a BAC of 0.08 percent or more constitutes intoxication. Aggravated DWI is charged when the BAC is 0.18 percent or more.

Mr. McIntosh appeared in Town Court on Oct. 3 and pleaded guilty to a misdemeanor count of DWI, accepting a plea agreement offered by Assistant District Attorney Andrew Botts.

The DA’s office later asked Justice Paul M. Lamson to vacate the plea after officials learned that Mr. McIntosh had been facing a more serious felony DWI charge which had been overlooked. The case was then sent to a grand jury, which on Dec. 6 indicted Mr. McIntosh on one count of aggravated DWI and two counts of DWI in connection with the Sept. 8 arrest. He pleaded not guilty to those charges on Dec. 17.

Mr. Button said the indictment constitutes double jeopardy and violated Mr. McIntosh’s due process rights.

Mr. Button’s motion included an Oct. 10 email from Justice Lamson to an assistant district attorney and an assistant public defender in which the judge wrote, “when reviewing the file while ordering the (presentence investigation), I found a felony complaint that had been given to the court. Somehow I missed it in the file. Mr. McIntosh was originally arraigned on the felony, but I never caught it when we built the case file later.”

The judge’s email proposed two possible solutions: allow the plea to stand, “and ask for appropriate sentence at sentencing,” but that would require a criminal procedure motion from the DA to reduce the felony complaint to a misdemeanor, as prescribed under section 180.50 of state criminal procedure law. Failing that, “I will void the plea, seal any statements the defendant made at plea and restore the felony to the calendar,” Justice Lamson wrote.

In an Oct. 12 email, Mr. HaberkornHalm advised the judge to vacate the plea, “since it is illegal.”

Mr. HaberkornHalm maintained in his statement to County Court that the lack of a 180.50 filing by the DA’s office meant the plea was accepted illegally, requiring it to be vacated.

“Considering that this is the defendant’s fourth DWI, I will likely be seeking an indictment in the near future,” Mr. HaberkornHalm wrote in his email to Justice Lamson.

Mr. HaberkornHalm also maintained that because Mr. McIntosh was originally arraigned on a felony charge, he was aware of its existence on Oct. 3 when he allowed the misdemeanor plea to go forward “despite it being apparent that his own attorney, the assistant district attorney, and (Justice Lamson) were all operating under the mistaken belief that there was no felony offense pending at all.”

Mr. Button maintained that the prosecution’s request to vacate “was not made in motion form, and defense counsel had no opportunity to challenge or counter the relevant legal reasoning and arguments.”

Judge Richards said Tuesday that a ruling on Mr. Button’s motion could come “within the next week.”

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