Originally Posted - October 27, 2006

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QUEENSBURY---Ruling that the Warren County District Attorney's office had denied activist Von Lindahl's constitutional right to appear before a grand jury on his own behalf, the Appellate Division, Third Department of the state Supreme Court has overturned his January 2005 conviction of third degree criminal possession of a weapon, a felony; and the misdemeanor charges of second degree menacing and obstruction of governmental administration.

The arrests had come after the Town of Queensbury dog control officer entered onto Lindahl's property with a warrant and officers of the Warren County Sheriff's Department, trying to seize Lindahl's dogs which the town claimed were unlicensed. Lindahl, who is physically disabled, said the dogs were service animals and exempt from licensing under the Americans With Disabilities Act.

He also challenged the legality of the warrant and said the dog control officer was on his property illegally.

Once again, the judge overturned is Warren County Court Judge John S. Hall.

The indictment against Lindahl was dismissed without prejudice, meaning that the county can try Lindahl again on the charges. Warren County District Attorney Kate Hogan has indicated that she will once again present the matter to a grand jury on Nov. 3.

Lindhahl has been incarcerated in state prison since February 2005, most recently at Groveland Correctional Facility in Livingston County. It is expected that he should be released by the beginning of the week but taken into custody immediately by the Warren County Sheriff's Department.

He had been sentenced by Hall to serve 2 1/3 to 7 years.

Lindahl, who was represented on appeal by Albany attorney Terence Kindlon of Kindlon and Shanks, had moved to dismiss the initial indictment against him on the ground that the Warren County District Attorney's office had failed to properly serve notice of his right to testify before the grand jury as required by Criminal Procedure Law. At that time, he also expressly asked to be allowed to testify before the grand jury if the charges were re-presented and listed his mailing address on one of his supporting affidavits, again pursuant to Criminal Procedure Law.

Judge Hall granted the motion, dismissing the indictment and granted the district attorney's office leave to re-present the charges. Three days before re-presentation, the district attorney faxed a notice of the imminent grand jury proceedings to the counsel, Marc Zuckerman who had represented Lindahl on the earlier motion. Although Zuckerman immediately responded by fax that he no longer represented Lindahl and could not accept service on his behalf, no notice was given to the defendant at the address provided in his earlier affidavit.

The grand jury then returned a second indictment and Lindahl, acting pro se, timely moved to dismiss it on the ground that, once again, he had been denied his right to testify. Hall reserved decision and later denied the motion because Lindahl hadn't filed an affidavit of service of his motion on the People. Following a jury trial during January, 2005, Lindahl was convicted as charged.

The appeals court ruled that Judge Hall erred in not dismissing the second indictment agreeing with Lindahl that a defendant has the right to appear before a grand jury when "prior to the filing of any indictment….he serves upon the district attorney….a written notice making such request" Lindahl served such a notice before the second grand jury presentation and the district attorney's office, represented in the appeal by Emilee Davenport, doesn't deny that the notice was received. The district attorney in the person of investigator, former State Police investigator Michael Huskie, attempted to serve notice of the second presentation. However, the appeals court agreed with Lindahl that the notice given by the district attorney was ineffective because no attempt was made to serve him personally when it became known that he could not be served through counsel.

The court noted that on appeal, for the first time, the district attorney's office asserted at oral argument that the notice had been sufficient because it was served on Lindahl's attorney-of-record. However, the appeals court said the issue was unpreserved because the People had failed to raise it in opposing Lindahl's motion to dismiss and that in any event, the issue had been waived by their failure to brief it on appeal.

The DA's office of Kate Hogan contended that they had no obligation to inform Lindahl of the pending re-presentation because, at the time and unlike the time of the initial grand jury proceeding, he was not arraigned "in a local criminal court upon a currently undisposed of felony complaint". The appellate court disagreed, saying that in order to secure the right to testify at a grand jury proceeding, a person must either serve a written request to appear or be subject to a pending undisposed felony charge. Either event triggers the district attorney's obligation to give notice of the pending grand jury proceeding and afford an opportunity to testify.

The court held that because Lindahl timely requested the right to appear, the district attorney was obligated to give notice of the grand jury proceedings to enable him to exercise that right. Their failure to do so rendered the resulting indictment invalid and mandated its dismissal.

The court also agreed with Lindahl that his failure to file proof of service did not provide a sufficient basis for County Court and Judge Hall to deny his second motion to dismiss. The record reflects that the motion was timely filed with the district attorney's office and that the DA had conceded its timely receipt. The court held that particularly since Lindahl was proceeding pro se, Hall and the County Court should not have rejected his motion as an ex parte application and should have granted, a second time, dismissal of the indictment for insufficient service of the required notice.

The court ruled that in light of their determination that the indictment had to be dismissed that no review of Lindahl's additional arguments were necessary.

Lindahl, 37, of Ridge Road, has long challenged Queensbury town government and they have railed back, usually with the assistance of Sheriff Larry Cleveland and the Warren County Sheriff's Department, harassing Lindahl with the judicial process because he has dared to challenge their authority and assert his guaranteed Constitutional rights.

A vociferious advocate for property rights, Lindahl has frequently sparred with Queensbury zoning officer David Hatin over alleged zoning violations, being served with appearance tickets for Queensbury Town Court where Hatin's wife is one of the court clerks.

Hatin's son works for the Warren County Sheriff's Department which arrested Lindahl.

Not a conflict of interest, Queensbury officials say.

Then there's the problem that the town attorney is acting as a special district attorney to prosecute zoning matters against Lindahl without having taken and filed an oath of office. No oath, no office, the law says.

So what, town officials say.

And then there's the problem that the town justices, Robert McNally and Michael Muller haven't filed their oath and bond in the county clerk's office as required.

That's what started this last round in the constitutional rights saga of Lindhahl v. Queensbury.

Queensbury officials and their legal counsel, Cathi Radner of Miller, Mannix, Schachner and Haffner, have repeatedly thumbed their noses at Lindahl over his demand that they comply with the statutes of the state and in particular, the state and federal Constitutions in regard to the taking and filing of oaths of office and bonds of the public officers.

Lindahl has consistently challenged the Queensbury and Warren County Court in the persona of John Hall to address the issue of jurisdiction which thus far, they have refused to do. However, by law, once a jurisdictional challenge is raised, the matter cannot legally continue until the issue of jurisdiction has been resolved.

In the latest issue over the Americans with Disabilities Act and service animals, Lindahl says neither the Queensbury Town Court or Warren County Court and Hall had subject matter jurisdiction over a federal law.

Public Officers Law specifically provides that all public officers, elected and appointed, must take and file their oaths of office and file a bond within 30 days of the commencement of their terms and if they do not, they have vacated the office by operation of law.

Lindahl is supported in his position about Radner's lack of authority by rulings from the Department of State and formal opinions by the Attorney General's office but while Queensbury officials claim he is not in compliance with the town's zoning ordinance, he has demonstrated time and time again that the Queensbury zoning officer, animal control officer, court personnel, justices and town legal counsel do not have the legal authority----or that dirty word jurisdiction-----to even perform the duties of the office they claim.

Another case of double standards.

They have claimed that he is engaged in the unauthorized practice of law, in violation of the town's zoning ordinance and claimed that he resisted arrest when he lay down next to his vehicle when arrested by the sheriff's department for allegedly operating a motor vehicle without a drivers license.

And then came the issue of dogs.

Lindahl is disabled by a degenerative neurological disorder which causes life-threatening seizures and blackouts. He has undergone several surgical procedures and walks with a cane when not so impaired he must use a wheelchair. He is accompanied at all times by a service animal which has been trained to alert his companion to the onset of such seizures. Lindahl has more than one service animal. (See http://www.affluent.net/sara/ ). The town's animal control officer, Joseph Lombardi, says that the dogs must be licensed. Lindahl says service animals are exempted from licensing by the American with Disabilities Act (ADA), state Civil Rights Law and state Agriculture and Markets Law.

So does the state Attorney General's office.

In fact, the Civil Rights Bureau of the state Attorney General's office has issued a 51-page booklet entitled "Freedom on Four Legs: Service Animals, Individuals with Disabilities and the Law".
http://www.oag.state.ny.us/press/reports/service_animal_report.pdf

Under law, a service dog is defined as any dog that is trained to aid a person with a disability and is actively used for such a purpose or any dog owned by a recognized training center. A person with disability is defined as any person with a physical impairment which is permanent and severely limits such person's mobility or a person who is unable to ambulate without the aid of a wheelchair or other prosthetic device.

The Americans with Disabilities Act provides, as the attorney general's office states in their booklet, that an individual with a disability who is accompanied by a service animal cannot be required to demonstrate or otherwise prove that the animal is a service animal or ask the individual to prove his disability.

But Judge Hall did just that, blatantly discriminating against Lindahl and giving cause for the judge's immediate recusal as trial judge in the case due to his already demonstrated lack of impartiality and appearance of impropriety. During a court appearance in the case, Lindahl was stopped by Hall from allowing his service animal to accompany the disabled man, ordering that Lindahl had to produce a letter from his doctor as to his disability.

Warren County Court, Glens Falls City Court and Queensbury Town Court have further violated the ADA by refusing to allow Lindahl to use a tape recorder to record the proceedings. The ADA provides that the neurologically disabled are legally entitled to utilize a tape recorder to The ADA provides that the neurologically disabled are legally entitled to utilize a tape recorder to assist them because of their disability.

Queensbury officials including the court and animal control officer refuse to accept that despite Lindahl having provided them with copies of the AG's booklet.

Lindahl also says, and the law and documents he produces seems to support, that Lombardi has no legal authority and can't perform the duties of Queensbury animal control officer.

Lindahl says that Lombardi was appointed to the office of Queensbury animal control officer on Sept. 17, 2001 but did not file his oath of office until June 21, 2002, certainly more than 30 days after the commencement of the appointment which would have caused his removal from the office.

The Attorney General's office says a municipality cannot contract directly with an individual to be the animal control officer if he is not a resident of the town but can contract with another municipality or humane society to provide such services.

He claims that Lombardi and town clerk Darlene Dougher acted together to enter into a town records a "false oath of office" sworn to by Lombardi and acknowledged by Dougher in June, 2002, that contained an alleged false statement that Lombardi resided in the Town of Queensbury.

Lindahl says Lombardi had no legal standing to make application to the Queensbury town court for a search warrant of property occupied by Lindahl to determine if there were any unlicensed dogs on the property. He points to Criminal Procedure Law which provides that an officer of the municipality can request or fill out an application for a warrant and says that due to Lombardi's alleged violations of Public Officers Law he was not legally an officer of Queensbury when making the warrant application which would render the warrant void.

But then neither did town justice McNally have jurisdiction to issue the warrant, Lindahl says. Lindahl says McNally has a huge conflict of interest in the matter which required his recusal as McNally, while employed by the Glens Falls law firm of Fitzgerald, Morris, Baker and Firth, routinely represented Sheriff Larry Cleveland and the Warren County Sheriff's Department. Judges are required to disqualify themselves where the appearance of impropriety exists or where they have formerly represented one of the parties or arresting agencies in a case.

According to election records and other public records, Lombardi was a resident of Schroon Lake in the adjoining county of Essex, not a resident of the Town of Queensbury as required by Public Officers Law. It also appears that Lombardi did not timely file his oath of office as required. Statutory and case law as well as numerous opinions by the state Attorney General's office and Office of the State Comptroller clearly state that a public officer must be an elector of the municipality in which he serves. Elector has been defined to mean resident and if no oath the municipality in which he serves. Elector has been defined to mean resident and if no oath is filed within 30 days of assuming the position, he cannot perform the duties of that office.

Public Officers Law says a vacancy in office exists on failing to properly and timely file an oath and bond and when a public officer ceases to be an inhabitant of the state or if a local officer, ceases to be a resident of the municipality of which he was required to be a resident when chosen.

Lindahl has long challenged the oath of office issue and it appears that Queensbury officials became exasperated with Lindahl and decided to retaliate against him on Feb. 11,2004, charging onto his property, using the criminal justice system to harass him as well as violate his constitutional rights, actually discriminating against him for being disabled and exercising his right to use a service animal.

Lindahl had filed a Freedom of Information Law request with Queensbury town clerk Dougher and Warren County Clerk Pamela Vogel for a copy of the bond or undertaking required to be filed in the county clerk's office by town justices Robert McNally and Michael Muller.

Vogel responded by sending Lindahl a copy of three pages filed in her office by former Queensbury comptroller Henry Hess, a memorandum addressed to Muller by Hess regarding the issue of the bond. However, no copy of the bond was attached.

On Feb. 11, 2004, Lindahl went to the Queensbury town building to attempt to meet with Hess but was told that Hess was no longer in that position. He says that the town clerk claimed that his request had not been clear enough and that he had to fill out a form further detailing his request for the bond.

Lindahl reportedly responded to Dougher that he wasn't filling out any additional form, that his original request had been sufficient and that the county clerk had had no trouble distinguishing what he was requesting. He says he was then "accosted" by Pamela Martin who claimed to be the town attorney and that Dougher threatened to have him arrested for harassment.

Lindahl told her that she and Lombardi had acted improperly to file a false oath in the town records for Lombardi.

Two hours later, Lombardi entered onto Lindahl's legally posted property with a search warrant signed by McNally for Lombardi to search the Lindahl premises "for the purpose of determining compliance with Article 7 of the Agriculture and Markets Law regarding licensing and vaccinating dogs".

Retaliation?

Queensbury officials said no, claiming that Lombardi's warrant application, notarized by Martin, had been signed Feb. 6, 2004, five days previous.

But Lindahl says the application has been backdated. He says he and his companion, Joan Denton, had appeared in Queensbury town court before McNally on Monday, Feb. 9, 2004, in regard to another matter. He says that Lombardi and other Queensbury officers were present and that there was no mention of any warrant nor was any served upon him at that time.

Although being aware of the hostility existing between himself and Lombardi, Queensbury officials including McNally apparently decided to force the issue on Lindahl's own property. Despite having been told both in writing and verbally by Lindahl to stay away from his posted property, Lombardi and McNally teamed up to issue a search warrant of Lindahl's property for the supposed purpose of determining if Lindahl was in compliance with Article 7 of the state Agriculture and Markets Law which pertains to dogs.

Lindahl says that due to McNally's lack of jurisdiction and having vacated judicial office by operation of law for failing to comply with Public Officers Law, McNally had no authority to issue any warrant and Lombardi, in alleged violation of the residency requirement and failure to file his oath and bond, had no authority or jurisdiction to submit a warrant application and certainly not to enter upon Lindahl's posted property to serve a warrant----much less to search for dogs which are not required to be licensed.

Criminal Procedure Law requires that the warrant application must contain the name of the court and name and title of the applicant and a statement that there is reasonable cause to believe that property of a kind or character described in the law may be found in or upon a designated or described place.

Lindahl says the warrant application did not contain the name of any court, did not in any manner describe any property of a kind or character to be seized and gave Lombardi no authority to seize anything from the property. He says that not only was the warrant procured by fraud but that it was void due to improper form.

Lombardi and the Town of Queensbury have an additional impediment to their assertion that the warrant was legal---service animals are not required to be licensed.

It appears that not only did Lombardi engage in a Fourth Amendment violation of Lindahl's rights as well as a violation of ADA, but that he and the Town of Queensbury then illegally seized Lindahl's service animals. The warrant which was allegedly obtained by improper means would have been invalid and all charges against Lindahl would be required to be dismissed.

In a landmark New York Court of Appeals case in 1992, the court held that if property is properly posted, police or law enforcement personnel can only enter upon it with a lawful and valid warrant and to do otherwise constitutes a criminal as well as civil trespass. It also constitutes a violation of Fourth Amendment rights and violation of Article 1, Section 12 of the constitutes a violation of Fourth Amendment rights and violation of Article 1, Section 12 of the New York State Constitution.

In this case, it appears the warrant was not lawful nor valid.

When Lombardi arrived at the Lindahl-Denton residence on Feb. 11, 2004, he apparently immediately called the Warren County Sheriff's Department for assistance in serving his warrant.

Lindahl says he was working on his computer, when he looked out the window and saw a van in his yard. He said that on opening his door, he saw a man walking towards his house and the door to the van was opening.

Lindahl said he could not focus on who was approaching his house as it was approaching dusk and he grabbed a rifle in defense of his family and property.

According to police reports, sheriff's officer Michael Webster knocked on Lindahl's door in an attempt to execute the search warrant with his 9 mm handgun drawn. He claims that he was met at the door by Lindahl carrying a loaded rifle. Although he claims that Lindahl pointed the weapon at him, Lindahl vigorously denies that.

Webster says he explained to Lindahl that the animal control officer had a warrant to check whether his dogs were licensed.

Sheriff Larry Cleveland has been quoted as saying that a "shouting match" ensued and that Lindahl was "lucky because if he (Webster) shot him, it would have been a justified shooting".

And perhaps that was exactly what the Lombardi and the sheriff's department were hoping would happen as it appears that the town and sheriff's department was intent on forcing a confrontation with Lindahl.

Lindahl says that when Webster told him to put the rifle down, he said he would be glad to, stepped back into the house, laid the rifle on the counter and slowly knelt down. He said he put his face to the floor and placed his hands on his head without being ordered to do so. He said there was no bullet in the chamber of the rifle and at no time did he point the weapon at Webster.

"A rifle not ready to fire is an unloaded weapon", Lindahl says. "I have two witnesses that concur with me as well as the whole issue was caught on tape. The whole time the rifle was in my hand it was in the upright position and not once was it leveled at anyone.

"At all times during this trespass (by Lombardi) I was in a defensive position and I was within my rights to defend myself. At no time was I in any commission of a crime", Lindahl says. "At no time did I block the doorway in an attempt to prevent any one from entering through the doorway. On the contrary, I invited the officer into the house so I could show the officer what was wrong with the warrant and in fact help him do his duty as a public servant in putting an end to this harassment from this imposter animal control officer from the Town of Queensbury".

Lindahl, like other county residents who have been labeled activists, has learned that police officers and other government officials often tell a different version of events than what actually occurred thus Lindahl has learned to carry to tape recorder on his person. Due to his disability, he also has trouble remembering events sometimes and is allowed by the ADA to carry a tape recorder with him at all times including in the courtroom. The entire incident of Feb. 11 occurring on the property he occupies was tape recorded and disputes the version told by Cleveland and the sheriff's department and as reported in The Post-Star.

Lindahl was charged by the sheriff's department with felony third degree possession of a weapon, and misdemeanor counts of menacing, resisting arrest and obstruction of governmental administration.

According to officials, because of Lindahl's previous misdemeanor conviction for resisting arrest for passively lying in the roadway during the traffic stop, he cannot legally possess a weapon. He served 60 days in Warren County Jail in 2003 for that charge and there is a pending federal civil rights suit against Warren County for their withholding of his medications during his incarceration which resulted in his hospitalization.

However, it appears that Lombardi is the one who should have been arrested for criminal trespass and that the town of Queensbury has not only violated Lindahl's constitutional rights but also the American for Disabilities Act, the state's Civil Rights Law as well as the Agriculture and Markets Law.

Cleveland and the sheriff's department, and their mouthpiece, Post-Star reporter Don Lehman, portray the incident as an armed standoff.

Lindahl says he had a constitutional right to protect his property using non-deadly force and that Lombardi was trespassing on his property without jurisdiction or title to the office he claimed and without a legal warrant.

Lombardi ended up seizing all six of Lindahl's dogs, his service animals, impounding them and leaving Lindahl with no service dog.

Lindahl was subsequently indicted in March 2004 by a Warren County Grand Jury. That indictment was thrown out and the charges dismissed by Warren County Court judge John Hall after Lindahl challenged it pro se as being unconstitutional as he was not given the required notice of his right to appear before the Grand Jury.

Retired state police investigator Michael Huskie, now working as an investigator for the Warren County District Attorney's office, had not properly served notice on Lindahl.

Criminal Procedure Law requires that a notice of presentment be personally served on the defendant or his attorney. If the defendant wishes to testify before the Grand Jury, he or she has a specified number of days to so advise the district attorney's office.

Huskie left the notice with a visitor at the Lindahl residence. Lindahl was not at home at the time. No affidavit of service was filed by Huskie as required to give proof that the notice had been personally served on the defendant.

Lindahl was later reindicted in August. However, according to him, he was never formally arraigned, never entered a plea and was not represented by counsel at arraignment as required by law.

In October, 2004, his assigned counsel, Mary Moule, had sought to be relieved as his counsel, saying that she had a conflict of interest involving the oath of office issue due to her role as special prosecutor in the case of People v. June Maxam, North Country Gazette publisher.

Maxam had raised the oath of office issue and lack of jurisdiction involving the Queensbury town court and Michael Muller in her appeal of harassment convictions from December, 2000. Based on documentary evidence, Maxam had challenged the authority of Gary Hobbs to act as the special district attorney in that case as Hobbs did not file his oath of office until March, 2004 although performing the duties of the office since August, 1998.

Warren County Court Judge John Hall had granted Moule's request and relieved her from the case.

Hall then assigned attorney Marc Zuckerman who requested to be relieved after telling Lindahl that he "couldn't challenge the government", that it was his job to defend the indictment rather than Lindahl. It was later learned that Zuckerman had been a former associate and work partner of district attorney Kate Hogan in the Brooklyn district attorney's office. 10-27-06

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