ugliest set of facts that i've ever seen my client truly get a raw deal from these defendants and the idea that i can't get to a jury and these facts to me is just astounding mr kelley and his ex wife to finish year italian so that the case was terminated at that point there was no more case then files in order to be filed a notice of appeal and what happened was we we tend to assume there's an appeal pending the matter is not over because otherwise compromise settlement what happened was peter briefly the defendant was voted out of office mark talk killed a new supervisor really had sympathy for mr telling in fact you can see from his voicemail message that was there was an e mail forget which saying you know this  even we're going to extricate from this nightmare it wasn't a compromise settlement they dropped everything they withdrew the appeal it's not the property was brought in compliance and brought in compliance by your client even though it wasn't the owner right so to that extent the city or the town did get something if they had wanted this property brought in compliance and ultimately your client even though he wasn't the owner did that and they dropped it they dropped the appeal well your hon have i know it's a shortened version but it does deal with the fact that this this did not necessarily just mean that everything was dropped in your client who's whose whole basis for winning was he didn't own the property off the property finally after all these months mr matheson finally comes up to the property and with one hundred seventy four dollars worth of whatever they had to do he issues the building permits in the certificates of occupancy the appeal was still going on because peter bracy was still the supervisor it was only one of the supervisor came and said ernie we're going to end this nightmare for you we're going to drop everything we're going to give back the money that we took out of your accounts and they went through the appeal there is no longer an appeal here it's not a compromise settlement i  this is really a case of first impression the case that the district court cited is quoted from a saying of the charges with if the charge is withdrawn then it's not a terminations on america in the in the defendant's favor the charge wasn't withdrawn here the appeal was withdrawn i can't couldn't find a single case in this circuit or anywhere other than this connecticut case that i cited which is pretty closely on point saying this was really a compromise settlement the questions not before me but i think under these circumstances it may be really a question of fact as to whether capitulated because this poor man by frankly had quite enough of this point he had to go into social services he went into a deep depression he went to medication who got counseling because of what these people did why because his ex wife who's father was a former town supervisor who was the immediate predecessor to peter bracy peter bracy who had a grudge against my client for two reasons because mr kelly and father when he was a sure for diller county wouldn't recommend mr bruce lee for a early for one of those things and then junk was and was a nonparty so that it was well known that peter bracy had a grudge i think she called it a vendetta against mr kelly and in fact when they had this meeting after mr bruce was out of office he said i'm not done with the email yet having a final certificate of occupancy that all happened well before the estrangement when this telling was still living on the property she was the owner of the property and this prosecution against her was a sham  have a certificate of occupancy for the house and by the way there are some outbuildings out there that might have built without well building permits that's what started the whole ball rolling and first mr matheson tells mr tell him don't worry i'll come up and we'll work it out and turns up peter bracy told him to do that and then he had told mr telling originally we're going to charge sheri for the violations as the owner of the house because the town attorney told us to do that and then brace this is no charge the two of them and it was a sham against  that she's shortly before the trial she leaves a voicemail message for medicine the building spector giving him information needed helpful for the prosecution and then she goes to the trial even though she's represented by attorney of the worse she has no attorney mr telling sees her winking at the court clerk who is a friend of hers no she disputes that but that's a question of fact he sees her with her head next to the prosecutor giggling across the court room and see if she admits this but she says it was for he admits giggling she says that they had gone into a room and she came out she was saying to them all i feel like i'm in court so often these days because she's been freed you know we are something like that so and then at the end know we also have other things here i asked her father who was one of most of us of witnesses have ever seen during his deposition did you ever speak to mr bracy about the prosecution and his response was something like well if i did it was this quick is a breath of air you know i think what happened here is clear they did a sham prosecution against her she's helping out the prosecution she's giggling with the prosecutor she's winking at the court clerk next thing you know she's found not guilty because she doesn't live on the property anymore  mrs kelly and i mean it's exactly the same as and she was treated exactly the same the only claim of the differential here is this conspiracy theory which the plaintiff has propounded there giggling well she said that she laughed she'd been hauled into court for i believe it was d w i a short time before and she said to it's the town attorney from from albany casting leoni is his name and she said i spent too much time here hahaha but the idea that they were off making merry in a corner or something simply isn't supported even if it was let's say she giggled in court is that they can't support a jury finding that there was some grand conspiracy here that judge guma was going to hear the case but not find you know against her and would find in favor of him and interestingly only isn't even was submitted was against her as well as against mr tally and in fact the all the briefs submitted by kat the town attorney asked for both of them to be held liable of found guilty and both of them to be fined equally so on i mean this rescue of the  hit it on the head here there's no way there's a settlement this case unless these outstanding violations had been resolved it's what the town wanted all the time and since the whole point of the prosecution so the town achieves that and now it's looking at sixty thousand die dollars  is standing which will never recover because mr kelly and it just doesn't have the assets to pay that kind of thing and a heck of a lot more as it looks at two appeals going forward so there's no way that this was simply i mean on these facts no jury could find that this is simply a unilateral discontinuance with no concessions or no action whatsoever to result in that settlement by mr kelley and the whole point of this was to get him to go and get the building permits in the ceo's and after much trial and tribulation  paid the fees at the inspections done in guys building permits that's why this case settled and i would like to add on that point in that he didn't own the property how was he able to do that if he didn't own the property while he submitted applications for building permits which he signed based upon his exclusive use an occupancy as almost a tenant if you well under the order entered in the divorce proceeding the town was willing to accept that in the circumstances of this case i think perhaps they would have been within their rights and saying no you're not the owner but again they wanted to resolve the matter and so they did accept it and they went forward the inspections and it was my hope and say it was a simple as that it was an awfully rough inspection if you the record mr tele and made it on the rather unpleasant but i'd like to return to my point regarding the one hundred eighty three most prosecution claim it doesn't rest soley on the issue of favorable terminations i know that was the lower court's rationale for dismissing it but i i can imagine a case where you would have a more clear undisputable circumstance a probable cause than here i mean it's conceded mr italian built to work at least cole built these buildings he law what is it number one of two thousand and seven which the town enacted it's conceded he did all that i mean there was clearly probable cause you the only reason for the dismissal in the reversal on appeal was the court wrong on this they say that under the town code you have to be an owner it's not enough new york occupier a tenant or anything else that is a purely procedural dismissal purely procedural dismissal is not a favorable terminations so i mean that's that's that's the i think if if in fact there was no other statute it might be favorable but the town and clearly judge people thought he was also being charged under local law to be one of two thousand and seven there's a discrepancy in the mouth of the few that can be charged you see you'd have to win nat on appeal  argue less that to make that argument to us otherwise if if the county court's decision were affirmed on appeal you could never make the argument to us that all well there's a difference catching and different mean this is for new york courts to decide it and you do not have a favorable decision on that just yet that that's true that's true you are but my point isn't that the county court was wrong although i do feel that to be the case my point is that it's a procedural dismissal when can return to the equal protection for just very briefly very briefly your honor all the other comparative errors that were listed were people who when told a needed building permit went out and got a building permit they never denied that they needed a building permit they were in a situation where conflicting claims as to who's responsible for it i mean very clearly as far as those comparatives go certainly i think the town was entitled to say we're going to bring this issue to court and let the judge decide who's responsible that provides a rational basis for distinguishing him from those comparatives even if and i don't think you could even if they could be found to be comparably situated to him and lastly i think that it shouldn't be overlooked in this case that defendants bracy and matheson have a qualified immunity defense i think the facts support that at a minimum they could reasonably believe that they were not violate constitutional right in the case of madison and prosecuting it in  far as bracy goes instituting this prosecution because again he was in violation of the town code and the local law in regard to these building permits i think any town official in these circumstances would say he's not going to come in for a building  conspiracy try not to beat a dead horse just focus on a couple points first of all if the court does find that a constitutional violation does survive this appeal would be my position that the conspiracy claim prosecution that involved herself the former town supervisor then current town supervisor the code enforcement officer the special prosecutor the judge and the court clerk i assume it's you your honors that no rational jury could find as such and that my client's role in agreeing that the charges would be a sham against her is the only conspiracy allegation against her even assuming all the facts t has presented is true that there was a good will in the court or that there was a wink in the court or that my client did go with bad intentions to the court foresman officers office which i submit to you that she did not there's no evidence of any court actually pleading with the court to also find my client guilty as well which i think is evidence against this whole conspiracy my client can't be a willful participant if her interest in the talent i and were both charged because this dispute volved marital property and they were both charged equally with court of force and violations they then were both tried after they were both given appearance tickets bernie was convicted based upon the fact that he had exclusive use and control of the property even then as we've already discussed the special prosecutor still insisted that she be found now if there are colluding with each other with the special prosecutor who is a part of a law firm in albany is arguing in court and submitting those papers doesn't make any sense this paper's asked for a pass on his lack of evidence in terms of showing a meeting of the minds or any agreement whatsoever and that conspirators meet in dark places and they don't meet in the light i submit to your eyes if you're going to launch very serious allegations against a judge a special prosecutor town officials and bring my clients personal and very emotional divorce into the united states second circuit court of appeals you have to have more and you have to have evidence of an agreement evidence of me of a minds and not these just these tangential relationships or these theories of why people may have motives against the pl but cherry selling was very much a part of the sham prosecution the jury could very well find that the prosecutor is going through it through a show to ask the same find be imposed against her and i think that the point raised that the town didn't property into compliance well i mean he had to do something he'd been trying to get into compliance off during the fall the late summer and fall of two thousand and eleven and he's been calling matheson saying please come up here inspect if you can't take facts in isolation if this is a case because mrs deleon winked at the court clerk and that was all i had i wouldn't be here when you read these facts from start to finish this is a really really horrendous story and i'm going to tell the story to can't believe it and must my client's life was ruined and i can't get to a jury and that as i said at the beginning i will be truly astounding thank you thank you thank you loser decision