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October 31, 2009
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See Previews for Essex County elections coming up.
Coupon Queen reminds us to keep our eye on the prize.
Demonstrators rally for environmental change.
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Judge refuses dismissal in fatal hunting accident
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Candidates debate issues Candidates: Who is the Essex County sheriff? By Fred Herbst fred@denpubs.com
By Chris Morris denpubs@denpubs.com ELIZABETHTOWN — An Essex County judge has refused an attempt to dismiss an indictment against a man who fatally shot a fellow hunter last fall. Judge Richard Meyer told 44-yearold Michael Smith of Lake Placid that it’s up to a jury to decide whether he took a “unjustifiable risk in opening fire into thick brush at an uncertain target when he didn’t know where his friends were located.” In November 2008, Smith was hunting with Leo Hickey, Kevin Straight and his brother Mark Smith in the town of Keene. An investigation found that during a deer drive, Smith shot at what he thought was a deer and Smith struck 35 year-old Hickey in the head, killing him. Hickey was a native of Keene and had only recently moved to Elizabethtown at the time of the accident. He was the son of Keene Town Justice Constance L. Hickey and retired state Trooper Tom Hickey. In a ruling issued Oct. 13, Meyer upheld the charge of criminally negligent homicide. Smith and his attorney, Essex County Public Defender Livingston Hatch, tried to argue that there was insufficient evidence to support the charges against him. In his decision, Meyer cited past case law, stating that as a hunter it was Smith’s charge to properly identify the surrounding environment and his target before firing. According to the Adirondack Daily Enterprise and court documents, Smith thought he had targeted a deer. “I thought I saw the brown part of the back of its head, I thought the deer had turned away and started moving away from me,” Smith’s statement reads. “I believed this was my only chance to shoot this deer and I believed I was aiming at the back of the head and fired one round.” After five minutes, Smith approached what he thought was a deer, finding Hickey instead. A hearing is scheduled for Nov. 6 in Elizabethtown regarding the admissibility of unspecified evidence. That hearing will respond to an attempt by Smith to suppress statements given to the police. At the time of the accident, Smith was also wanted in New Hampshire on felony drug charges. Essex County Assistant District Attorney Michael Langey is handling the case for the prosecution.
ELIZABETHTOWN — Who is the Essex County sheriff? That question was posed several times as Michael “Ike” Tyler and Robert Kirby debated at Elizabethtown-Lewis Central School Oct. 22. Tyler and Kirby are independent candidates for sheriff in the Nov. 3 election. Incumbent Republican Henry Hommes declined to take part in the face off. The debate was sponsored by Denton Publications. Candidates were questioned by a panel of local journalists. “I’ve knocked on over 2,000 doors and have been asked over-and-over ‘Who is the sheriff?’” Tyler said. “I can guarantee one thing, if I’m elected you’ll know who the sheriff is. I believe the sheriff should be out there talking to his constituents.” Kirby said he has been asked the same question. “It’s true, many people don’t know who their sheriff is,” he said. “We need a sheriff who will open a dialogue, develop communication with each community in the county. We don’t have that now.” Much of the debate focused on the Essex County jail. Both candidates agreed the 120cell jail is too large for the county and shouldn’t have been built. “It’s there, though,” Tyler said. “Now it’s a matter of running the jail safely and efficiently.” Tyler, who is a retired corrections officer with 25 years experience, said he has the training and background to run the facility. Kirby noted the sheriff department’s jail budget has risen from $3.3 million in 2006 to $4.6 million this year. The county now has a three-year contract with the federal government to house federal inmates at $98 a day, Kirby explained. He said he would re-negotiate that deal to $120-$132 a
Robert Kirby
Michael ‘Ike” Tyler
day. Tyler expressed doubts the federal government would agree to such a deal, noting the county is dependent on the income generated by the federal prisoners. “If we lose federal inmates the county is in big trouble,” he said. Kirby, a retired Tampa, Fla., police officer now living in Wilmington, said if the rate for federal inmates can’t be increased the jail should de-certify 60 cells, which would allow staff reductions and save tax dollars. Tyler countered he is opposed to any staff cuts. “We have a lot of hard-working, good, dedicated people there,” he said. “Maybe with better direction things would run more smoothly.” Kirby said saving money at the jail would al-
low for creation of a sheriff department road patrol. A road patrol would respond to emergencies, patrol secondary roads ignored by state police, provide security in local courts, check on registered sex offenders and answer resident complaints, he said. “There are certain things the state police can’t provide, so where do we turn?” Kirby asked. “Using police officers to work in a jail is not cost effective. We need them on the road.” Tyler disagreed with the need for a road patrol. “If a town has an (law enforcement) issue we’ll take care of it,” Tyler said. “To just send a road patrol out there doesn’t make much sense. Common sense is the word.”
See SHERIFF, page 6
Fee candidacy appears to be legit By Jon Alexander denpubs@denpubs.com TUPPER LAKE — The candidacy of Tupper Lake Village Police Chief Tom Fee for Tupper Lake supervisor may be in conflict with established federal law. But timing and a few technicalities may be on Fee’s side. According to the Hatch Act, an individual employed by any municipality that receives or benefits from federal grants or funds is restricted from political activity. According to reports, the U.S. Office of Special Counsel – the agency tasked with interpreting the Hatch Act – recently contacted Fee and indicated that an investigation into his candidacy was ongoing. OSC spokesman Darshan Sheth said the agency’s findings regarding specific investigations are not released to the public. “I get questions from the media about the legitimacy of a particular candidate all the time,” Sheth said. But he did refer to a list of the agency’s case reports that have had the names of the indi-
viduals and the places of occurrence removed. The Tupper Lake Village Police Department is one of several local, state and federal agencies that comprise the Franklin County Border Narcotics Task Force. The U.S, Office of Homeland Security reports that in 2008 the task force received $1.2 million in federal Operation Stonegarden Funding. The task force received a similar amount in 2009. According to a 2008 OSC finding of a similar case authored by Hatch Act Unit Attorney Erica Hamrick, members of a federally funded task force are ineligible to hold public office. “Even though your salary and overtime is being paid with a state grant, as a Detective with the heavily federally funded Task Force, we believe you necessarily have duties in connection with federally funded activities and are covered by the provisions of the Hatch Act,” the finding states. “As an employee covered by the Act, you are prohibited from being a candidate for election to partisan political office.” In this particular case the unnamed detective was planning a run for County Sheriff.
Fee is currently running on the Republican line against incumbent Democratic Supervisor Roger Amell. According to Franklin County District Attorney Derek Champagne, Tupper Lake Village Police have received Operation Stonegarden monies in past years, but none has been received by the department in 2009. “My understanding of the Hatch law is that you have to follow the money,” Champagne said. “If they were currently involved in an investigation and my department was paying the overtime with federal money, that would be a huge red flag, but they aren’t right now. So far this year, several Franklin County police agencies have received new bulletproof vests through federal grants, but Tupper Lake isn’t scheduled to get theirs until January – well after the November election. “I think he (Fee) is saved by the timing,” Champagne said. “It may be a minor technicality, but I think that’s what it comes down to.” In an April 2009 opinion OSC Attorney Carolyn Martorana detailed a situation where a
See FEE, page 12