Albany County Court Judge Stephen Herrick exceeded his authority when he ruled a special prosecutor was required for the case against five people accused of operating an illegal online steroid distribution ring, the state’s highest court ruled Tuesday.
Justices with the state Court of Appeals upheld an Appellate Division ruling which found Herrick erred when he disqualified Albany County District Attorney P. David Soares from prosecuting the case against Signature Pharmacy of Florida. In reaching the 6-0 ruling, the justices determined Soares didn’t appear to have a prejudice against the five named in a 33-count criminal indictment, even though the defendants in the case were at one time pursuing a $75 million civil lawsuit against him in federal court for defamation and false arrest.
“In sum, while we refrain from concluding that a civil lawsuit commenced by a criminal defendant against a duly elected district attorney in the midst of a pending prosecution will never warrant the disqualification of such district attorney, we see no basis for petitioner’s disqualification here,” Senior Associate Judge Carmen Beauchamp Ciparick stated in the 10-page ruling.
The decision allows Soares to move forward with the case filed against Robert “Stan” Loomis and Naomi Loomis, who operated the pharmacy, and Michael Loomis, a pharmacist. Also charged were Kirk Calvert and Anthony Palladino, business managers for the company.
Cecilia Logue, a spokeswoman for the Albany County District Attorney’s Office, said Soares is eager to prosecute the case.
“We respect the appellate process and are pleased with the decision of the court,” she said in a statement. “We look forward to proceeding with this criminal prosecution.”
James Knox, the attorney who argued in favor of a special prosecutor for the five defendants, could not be reached Tuesday.
Soares brought a case against the pharmacy in 2007, alleging it was selling anabolic steroids to professional athletes and entertainers. The indictment initially led to a number of convictions but has since become bogged down due to legal wrangling in various courts.
The case has also highlighted a contentious relationship between Soares’ office and Herrick. Herrick twice dismissed the charges, noting Soares’ conflict of interest due to the federal civil lawsuit in Florida. He also ordered a special prosecutor for the criminal case in 2010 after the Appellate Division in Albany allowed Soares to again present the case to a grand jury.
Soares fired back at Herrick, claiming in a news release the judge was providing a “get-out-of-jail free card to every criminal defendant in New York state” by barring him from prosecuting the case. In May, the Appellate Division in Rochester censured Soares, claiming his comments were “reckless and misleading.”
In September, Herrick threw out the felony convictions of Greg Trotta and Brian Schafler — two among 17 people who pleaded guilty in the case — more than five years after both admitted to single counts of criminal diversion of a prescription medicine. Herrick ruled their sentencing in the case had been postponed for too long.
But prosecutors vowed to appeal, arguing the delays were beyond their control. They said both men couldn’t be sentenced until they took the stand against the others still facing trial in the case.
The federal civil lawsuit has since been dismissed and justices with the U.S. Supreme Court declined to take it up. The New York Court of Appeals noted the resolution of this case in its ruling as added evidence to support the Appellate Division’s decision to allow Soares to prosecute the case.
The justices also found only slight differences between the indictments Soares secured in the case, thus indicating no significant bias. Specifically, they found the indictment he sought initially in the case didn’t differ substantively from the one he sought after the federal case was filed against him.
“Here, the defendants do not point to any prejudice suffered in connection with the fifth indictment returned by the Albany County grand jury. Indeed, this indictment contains virtually identical charges to the fourth indictment, which was obtained well before the defendants filed the civil lawsuit,” the ruling states.