STATE OF NEW YORK COUNTY OF ALBANY COUNTY COURT THE PEOPLE OF THE STATE OF NEW YORK, -against- GEORGE MAZIARZ, APPEARANCES For the People ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK. THE CAPITOL ALBANY, NEW YORK 12224 For the Defendant, George Maziarz JOSEPH M. LATONA, ESQ. 716 Brisbane Building 403 Main Street Buffalo, New York 14203 E, STEWART JONES, ESQ. JONES, HACKER, MURPHY 28 Second Street Troy, New York 12180 CORRECTED AND AMENDED DECISION AND ORDER Indictment No.; AG-1-8228 Defendant, CHRISTOPHER BAYNES AND DANIEL BAJGER, ASSISTANT. ATTORNEY GENERAL LYNCH, J. Defendant, by written motion, moved this Court to dismiss the Indictment on the grounds that the prosecutor engaged in selective enforcement, in violation of Defendant's right to equal protection of the law (New York Constitution art 1 § 11; US Const,14" Amdt), Oral argument was had on the motion this date. For the reasons more fully set forth below, the motion is denied. To effectively establish a selective enforcement claim, the standard is as follows: “to invoke the right successfully...both the ‘unequal hand’ and the ‘evil eye’ requirements must be proven—to wit, there must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based on an impermissible standard such as race, religion or some other arbitrary classification” (emphasis added), (see In the Matter of 303 West 42" Street Corporation v. Joseph B. Klein, Chairman of the Board of Standards and Appeals, 46 N.Y. 2d 686 [1979]) On the instant record, Defendant has failed to meet his heavy burden of proof to establish a selective enforcement claim. Notably, Defendant alleges that the prosecutor chose only to prosecute him and co- defendant Ortt, as “pure polities”, and purportedly chose not to prosecute Alisa Colatarei-Reiman, for embezzlement (see Latona Affidavit 1117-19). On its face, the claim fails. Clearly, the prosecutor's election to prosecute both defendant and co-defendant Ortt evidences no selective enforcement against defendant (see People v. Goodman, 31 N.Y. 2d 262, at 268 [1972], where the Court rejected a selective enforcement claim, finding, “even though the defendant asserts that certain other offenders have not been prosecuted, the record discloses that ‘on the day he was sentenced, three other persons were convicted under the same ordinance”). ‘Moreover, the instant charges do not include embezzlement, and there is no evidence that Alisa Colatarci-Reiman is similarly situated with the defendant. Last, the record evidences that a grand jury witness was prosecuted by the People as a result of the subject invest Other than a conclusory claim of “pure politics”, defendant has failed to establish thatthere was no rational basis for the prosecution of the named defendants herein. In fine, Defendant failed to failed to allege facts to establish a “a strong showing of selective enforcement, invidiously motivated”; as such, defendant is not entitled to a hearing on the motion (cf. In the Matter of 303 West 42" Street Corporation v. Joseph B. Klein, Chairman of the Board of Standards and Appeals, supra, at 693). In People v. Blount, 90 N.Y. 2d 998, 999 [1997], the Court rejected a selective enforcement claim where 13 of 494 cases were prosecuted, holding, “such a showing demonstrates only the conscious exercise of some selectivity in enforcement and does not, without more, suggest a constitutional violation”, Defendant's generalized claim, like the claim in Blount, fails to evidence a constitutional violation. It is the Decision and Order of the Court that the Defendant’s right to equal protection of the law has not been violated. ‘This Court holds and determines that defendant's motion for an Order dismissing the Indictment be and the same is hereby denied. ‘This memorandum constitutes both the decision and order of the Court. Dated: Albany, New York July 14, 2017 he. g Yo PETER A. LYNCH, J.C.C. Papers Considered: 1. Notice of Motion and Affirmation in support thereof by Joseph Latona, Esq. dated June 22, 2017; 2. Memo of Law of Christopher P. Baynes, Assistant Attorney General, dated July 7, 2017: and 3. Defendant’s Reply Memo of Law dated July 11, 2017.