Acting state Supreme Court Justice Catherine Bartlett surprised lawyers this morning by recusing herself from a case accusing former Ramapo police officer Andrew Dale and millionaire Monsey businessman Zalman Silber of sexual abuse and other charges.
They are accused of performing gynocological medical exams on a woman once married to Silber, who also faces separate charges in Manhattan involving other women.
Bartlett told prosecutors and defense lawyers that she had been speaking to a woman who began talking to about Silber’s divorce.
“Recusal is something within the judge’s discretion,” First Assistant District Attorney James Mellion said. “I don’t know if it’s up to anyone to object to a judge recusing herself.”
But defense lawyers David Goldstein and William Aronwald want Bartlett to remain on the case. Goldstein, who represents Dale, said Bartlett correctly informed the attorneys about the conversation with a woman who raised the issue of Silber’s divorce.
“She did her duty and made the details public,” Goldstein said. “We don’t see any reason why she should leave the case. She’s a smart judge and can put this aside and do her job.”
Bartlett previously delivered a hard blow to the prosecution’s case by tossing out 24 misdemeanor sex abuse counts against Dale. She also tossed official misconduct counts.
Bartlett’s rationale – which the prosecution opposed – was that the official misconduct counts didn’t apply to Dale because the alleged misconduct didn’t occurred within his official duties.
She wrote in that December decision that anyone could commit sexual abuse and the fact that Dale was a public official does not make it misconduct in office. She also wrote the testimony and other evidence provided by the prosecution failed to establish all the needed elements to prove official misconduct.
The Rockland District Attorney’s Office contends Dale practiced gynecology and proctology with Silber on the woman while on duty and in uniform three times in 2005 and 2006.
Under the law, the statute of limitations is five years under the official misconduct count. But when Bartlett dismissed the official misconduct counts, the statute of limitations fell to two years and the domino effect was the dismissal of the 24 misdemeanor sexual abuse counts.
What remains are eight felony charges – four counts each of unauthorized practice of a profession and fourth-degree aggravated sexual abuse. Those charges are being challenged by the defense, Dale’s lawyer, David Goldstein, has said.
The defense also is challenging the victim’s testimony on “martial privilege” grounds based on her retelling conversations with Silber. Bartlett had not yet ruled on that pretrial issue and several others.
Mellion said that now that Bartlett has recused herself, she likely can’t change her mind.
“As I pointed out to the judge, we have to be concerned if you recuse yourself and then don’t, if there is a conviction, what happens on appeal,” Mellion said.
The next court date is Feb. 26.