River protesters proceed with appeal, 12-01-1988

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Thursday, December 1, 1988.

River protesters proceed
with appeal

By TOM RUE

MONTICELLO -- No decision in an appeal of disorderly conduct convictions by four river activists will be rendered before next year by Sullivan County Court Judge Eugene M. Hanofee, according to assistant district attorney Elissa Yavne.

Donald Rupp, Henry Rupp and Herb Wolff of Barryville, and Jeffrey Ojeda Bellinger formerly of Equinunk, were arrested by state troopers at the October 22, 1987 meeting of the Conference of Upper Delaware Townships (COUP) in Narrowsburg.

In a manner which COUP members found disruptive -- shouting and refusing to leave the conference table after being so ordered by the chair -- Don Rupp protested the participation of a representative of the Upper Delaware Citizens Advisory Council (CAC) as a nonvoting member of COUP. When Rupp was arrested, he was joined at the table by his brother Henry, as well as Wolff and Bellinger, who were also charged.

Last February, COUP reorganized as the Upper Delaware Council.

In a 16-page appeal filed last April, defense attorney Mark L. Schulman of Monticello alleged at least 22 errors, during the eight hour non-jury trial in the Town of Tusten Justice Court on March 1.

The four anti National Park Service (NPS) protesters were sentenced to conditional discharges and fines. They rejected a pre-trial offer for adjournments in contemplation of dismissal, according to Yavne.

Following oral arguments in Monticello on November 2l, Yavne was given 90 days -- until February 21, 1989 -- to formally answer Schulman's allegations.

In June, Tusten Justice Robert E. Luben filed detailed responses, branding portions of Schulman's appeal "fabricated lies."

The appeal included a charge that Luben acted improperly by allowing himself to be alone in the courtroom, between the trial. and sentencing, "for at least 15 minutes" with COUP delegate George Frosch of Hancock and NPS superintendent John T. Hutzky.

"Since every part of this accusation were [sic] fabricated lies, I did not disqualify myself," Luben responded.

In addition, Schulman accused Luben of engaging in secret conversations with "someone from the district attorney's office" about the case.

Luben concluded his 7-page return with the statement: "The only ex-parte communications took place in the mind of the defense attorney, due either to an overly active imagination or hallucinations. We are well aware of our responsibilities in this regard and we live up to them."

Luben also commented: "The Court regrets that it did not cite the defense attorney for contempt of court for his behavior during a trial in which the demeanor. of the Assistant Distr/ct Attorney, the witnesses, and the defendants was exemplary."

Interviewed at his office on November 23, Schulman stated he did not actually know whether or not Luben engaged in discussions with Frosch or Hutzky. "It was a setting that, 'as a judge, I would have been uncomfortable with," opined Schulman, who is an elected justice in the Village of Monticello.

In a decision and order issued by Hanofee in June, it was determined that county court was not the forum for such charges against a town justice.

Responding to a question, Schulman indicated some jurists believe part-time justices who practice law should exclude themselves from criminal practice in the county where they serve. "It could lead to confusion of roles" with the prosecutor's office and others, Schulman explained. However, he stressed that -- while it was once prohibited -- the ban has been lifted in recent years.

Hanofee had also ruled that a transcript prepared from tape recordings of the trial could not be made available to Luben by the DA's office, to aid in preparing his initial response to Schulman's appeal. Shortly thereafter, Luben formulated his response from five pages of handwritten trial notes, of which he filed photocopies with the county clerk.

Another basis for appeal is that the original accusatory instrument, completed by police, allegedly did not contain sufficient information for Schulman to formulate an adequate defense. "Until the trial was over, I had no idea what my clients were charged with," he stated.

However, Luben responded that the factual part of the complaint met the requirements of Criminal Procedure Law.

In September, after reading Luben's responses, Hanofee issued a second decision and order, denying the appellants' request that their convictions be vacated and charges expunged.

Asked whether he had appeared in Luben's court since last spring, Schulman replied he had not, "And I don't think I would. If I did, I would certainly ask him to disqualify himself, after some of those rude comments be made about me."

Frosch named in countersuit

In a related matter, Schulman said a process server from his office has recently been "attempting to locate" Frosch to deliver a summons and complaint, alleging false arrest in the 1987 incident.

On behalf of COUP, Frosch signed the complaint accusing the four men of disrupting the meeting.

Schulman said he would release a copy of the civil suit after Frosch has been served.

Contacted Thanksgiving morning, Frosch said he had no knowledge of a lawsuit. "They'll have to win their appeal before they can make it false arrest," he replied.

"If you see the gentleman, you can tell him to get in line. Tell him if he'll give me a call, l'll be glad to come pick it up. I'll file a countersuit. I have two lawyers, I might just as well have three," Frosch laughed.

Since the cause of the lawsuit (the four arrests) occurred prior to UDC's incorporation in February 1988, it is not clear whether Frosch could be included under indemnification provisions of the present corporate by-laws. At the time of the disrupted meeting, COUP was an unincorporated association of municipal governments, with Frosch. representing the Town of Hancock.

If UDC were to cover Frosch, under its 1988 budget, up to $4000 per month could be available for legal fees and expenses. The UDC is entirely funded by the NPS.

Legal resources in the Town of Hancock are not known. Nor is it known how much Rupp and his codefendants are paying Schulman, or whether they would be able to recover legal fees if their convictions are overturned.