STATE OF NEW YORK COUNTY OF ALBANY

COUNTY COURT
THE PEOPLE OF THE STATE OF NEW YORK, AFFIRMATION IN
SUPPORT OF
-against- DEFENDANTS
MOTION
ROBERT ORTT, Indictment No.
AG-1-8228
Defendant.

STEPHEN R. COFFEY, ESQ., an attorney duly admitted to practice law before

the courts of the State of New York, affirms under penalty of perjury:

1. I am an attorney with the law firm of OConnell and Aronowitz, attorneys for

the Defendant in this matter, and submit this Affirmation in support of the Defendants

Motion to dismiss the Indictment.

2. This Affirmation is made upon personal knowledge and information and belief.

The grounds of my knowledge and the sources of my belief are my personal

observations, my conversations with the Defendant, a review of the case file maintained

by my office and my investigation into this matter.

3. The indictment alleges that Senator Ortt committed the crime of Offering a False

Instrument for Filing in the Frist Degree in that, on three separate occasions, he

specifically offered or presented a periodic campaign disclosure report for the Niagara

County Republican Committee that contained false information for filing with the

knowledge or belief that it would be become, in essence, a public record. The Indictment

is attached as Exhibit A.

4. As outlined below, the New York State Attorney Generals Office denied Senator Ortt his

right to provide the Grand Jury with relevant and competent evidence concerning the
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 case under consideration and in doing so, frustrated the purpose and the integrity of the

Grand Jury. CPL 190.50(5)(b) and (c). As a consequence, the Indictment must be

dismissed.

5. On February 17, 2017, the New York State Attorney Generals Office, represented by

Assistant Attorney General Christopher Baynes, notified Senator Ortt, pursuant to CPL

190.50(5)(a) that the underlying case was going to be presented to an Albany County

Grand Jury. Thereafter, Senator Ortt retained OConnell and Aronowitz to defend him.

Attached as Exhibit B is the said Notice.

6. On March 3, 2017 I notified Mr. Baynes that my firm had been retained to defend Senator

Ortt and that Senator Ortt wished to avail himself of the opportunity to testify before the

Grand Jury pursuant to CPL 190.50(5). My letter to Mr. Baynes is attached as Exhibit

C.

7. On Thursday, March 23, 2017, Senator Ortt testified before the Albany County Grand

Jury. I was present in the Grand Jury Room with Senator Ortt while he testified and I

personally observed all interactions, questions, instructions and statements made by Mr.

Baynes, members of the Grand Jury and Senator Ortt.

8. Prior to giving his testimony, Senator Ortt voluntarily waived immunity pursuant to CPL

190.45. Senator Ortt informed the Grand Jury that he would answer any questions they

had and stated that he had done nothing wrong.

9. The majority of the questions posed to Senator Ortt focused largely on payments to his

wife (who previously testified before the Grand Jury). As to the actuyal basis of the

Grand Jury investigation Senator Ortt, however was never shown any forms, documents
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 or filings he was eventually accused of offering with the knowledge and intent that they

contained false information. Specifically, Senator Ortt was never shown or asked

questions about either of the three periodic campaign disclosure reports for the Niagara

County Republican Committee that are referenced in the Indictment.

10. At the conclusion of his questioning, and startled by the fact that he was asked no

questions about the forms in question, and before being excused from the Grand Jury,

Senator Ortt reasonably requested to provide additional testimony.

11. He was not, however, afforded an opportunity to speak or even articulate to Mr. Baynes

or the Grand Jury what additional information he sought to offer. Instead, Mr. Baynes

refused to allow Senator Ortt to provide any additional information to the Grand Jury

without conducting any inquiry into the relevancy, materiality or competency of the

subject matter.

12. Senator Ortt knew that that gravamen of the case had to do with the filings of the reports

alluded to in the Indictment, but not having been asked directly about such disclosures

during the course of his testimony Senator Ortt wanted to review and address documents

in question and specifically note that he had no knowledge regarding them.

13. Had he been given that opportunity, Senator Ortt would have explained that he had never

seen these reports, had never signed or reviewed them and was not responsible for their

filing. Additionally Senator Ortt would have answered any questions put to him by the

Grand Jury and Mr. Baynes regarding this issue.

14. Inexplicably, Senator Ortt was summarily denied that opportunity and the Grand Jury was

denied relevant and competent evidence which constituted the crux of the States case.
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15. The Indictment was handed up the same day and Senator Ortt was arraigned the

following morning.

16. CPL 190.50 plainly establishes that a Grand Jury witness testifying in his or

her own behalf must be allowed to give all relevant and competent evidence concerning

the case. Here, the prosecution intentionally prevented Senator Ortt from exercising that

right and prevented the Grand Jury from considering relevant and competent evidence.

People v. Green, 80 A.D.2d 650, 651-652 (3d Dep't 1981) (dismissing Indictment where

prosecutor interrupted defendant and prevented defendant from completing her

testimony). In light of these facts, the Indictment must be dismissed.

WHEREFORE, for the reasons stated above, your Affirmant respectfully

requests that the Court grant the relief set forth herein; together with such other and

further relief which as to the Court may seem just and proper.

DATED: March 28, 2017

Albany, New York

OCONNELL AND ARONOWITZ

By:
________________________
Stephen R. Coffey, Esq.
Attorneys for Defendant
Office and P.O. Address
54 State Street
Albany, NY 12207-2501
Tel.: (518) 462-5601