STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION FOURTH DEPARTMENT ___________________________________________ SEPHORA K.

DAVIS, Petitioner For a Judgment Under Article 78 of the Civil Practice Law and Rules in the Nature Of Prohibition v. HON. JOAN S. KOHOUT and THOMAS E. MORAN, ESQ. Respondents. __________________________________________ PEOPLE OF THE STATE OF NEW YORK, v. SEPHORA K. DAVIS, Defendant. ___________________________________________ JOHN M. REGAN, JR., ESQ., pursuant to Rule 2106 of the CPLR, respectfully affirms to the Court as follows: 1. I am an attorney duly licensed and admitted to practice law before the courts of this state and I represent the Petitioner-Defendant in the above entitled matter. I submit this affirmation in reply to the Answering Affirmation of Respondent Moran, which was untimely served upon the undersigned by mail on or about January 8th, 2010, and received on January 9th too late for a timely reply under the Courts rules. I respectfully Livingston County Indictment 2004-276 Docket No. OP-06-01392 AFFIRMATION

request that should the Court consider Mr. Morans untimely response, as it has in the past, that it also consider this reply, which due to the untimely service of Mr. Morans affirmation cannot itself be timely. ERRATUM 2. The references in headings of the memorandum of law dated December 17th, 2009 to a Notice of Motion dated December 9th are indeed an error as Mr. Moran notes in his Answering Affirmation. The Notice of Motion dated December 17th is the intended reference. MR. MORANS PUZZLING ARGUMENTS 3. The Notice of Motion dated December 17th, 2009 plainly requests relief from this Courts order of December 22, 2006. Mr. Morans apparent objection on page 2 of his affirmation that a CPLR 5015(a)(3) motion is limited to the orders of the court in which it is filed. is odd and inapposite. 4. Mr. Moran also alleges on page 5 of his affirmation that there is no indication that the present application is being made on behalf of the defendant or even with the defendants knowledge. But the undersigned is the attorney of record for the Petitioner-Defendant both with respect to the within special proceeding and the criminal action and appeal. I presumably act, and otherwise affirmatively state that I do act, with the Petitioner-Defendants knowledge, authorization and consent. As attorney of record, it is not incumbent upon me to demonstrate that unless and until there is some reason to question it; but Mr. Moran offers no such reason. Under the circumstances, this argument is simply strange.

5. Moreover, there is no lack of a factual affidavit from the defendant as Mr. Moran also alleges. The Petitioner-Defendant submitted an affidavit dated May 17, 2006 with the original Petition in this proceeding which has never been contradicted by any competent evidence and which contains such evidence as is relevant and within her personal knowledge. She has no personal knowledge of the facts constituting the criminal conspiracy to falsely implicate her; rather, these facts are demonstrated by other documentary proof, such as Exhibit H to the Notice of Motion dated April 22, 2009. MR. MORANS DISINGENUOUS ARGUMENTS A. Delay/Laches 6. The delay of which Mr. Moran complains (e.g., p. 2, point 1 of his Answering Affirmation dated January 8th, 2010) was caused entirely by his own misconduct. He was put on notice of the disturbing impropriety of Officer Dana Carsons involvement in the criminal investigation regarding the Petitioner (even if he was not aware of that impropriety independently due to his own culpable participation) by my letter to him of December 15, 2004 (see Exhibit B to Petitioners Notice of Motion dated November 17th, 2006). Nevertheless, it was nearly two years before Mr. Moran provided the discovery demonstrating Carsons far deeper and ultimately criminal involvement in that investigation (e.g., Exhibit H to Petitioners Notice of Motion dated April 22, 2009), and that discovery was never provided directly to me but rather to Mr. Thompson, who subsequently provided it to me. Then, the critical witnesses were tampered with, intimidated and one was arrested (Exhibit I to Petitioners Notice of Motion dated April 22, 2009). This created confusion and delay in Petitioners own investigation and raised an issue of contamination and taint in this Courts proceedings

which has been enormously difficult to address. It is nevertheless submitted that taking these circumstances into account, the Petitioner has addressed these and all the other issues presented by this litigation diligently, honestly and promptly. B. Litigation costs to taxpayers 7. Mr. Morans stated solicitude for taxpayers (p. 6, point 4 of his Answering Affirmation) is, quite frankly, risible. For just one example, Mr. Moran employs his own spouse in his own public office at a high, taxpayer-funded salary. 8. Beyond that, it should be disturbing to the Court that Mr. Moran frequently states or implies that the extremely serious matters involved in this litigation are somehow trivial and unworthy of serious attention and effort. Even his truncated and habitually late filings with this Court seem to reinforce the impression of a misplaced flippancy in a public official invested with enormous power and discretion over others. Then again, this seems to be a pretense a deliberately cultivated impression. Mr. Moran could not be unaware of the serious implications of an adverse determination in this proceeding for him and the culpable personnel of Livingston County law enforcement. C. Finality 9. The basis for Mr. Morans finality argument (p. 4, point 2 of his Answering Affirmation) is once again his own misconduct: the prosecution of, and conviction pursuant to, an indictment knowingly based upon perjury. People v. Pelchat, 62 NY2d 97 (1987) While Mr. Moran has engaged in heated rhetoric and hyperbole in affirmations, neither he nor his attorneys have ever raised a legitimate dispute such as through an affidavit from Dana Carson - that this is exactly what Mr. Moran did to the Petitioner.

10. Mr. Moran should therefore be estopped from even arguing finality. But even if he is not, the usual rules of finality such as res judicata do not apply in situations like this, as noted in my October 12th, 2009 letter to the Clerk of this Court. Mr. Moran received a copy of that letter. Under the circumstances, his use of the term sacrosanct in connection with a somewhat disjointed list of legal concepts (p. 4 of his Answering Afffirmation) is more than a little odd. MR. MORANS UNSOUND ARGUMENTS 11. As has been the case throughout these proceedings, Mr. Moran does not and cannot dispute the documentary evidence underlying the Petition and the subsequent substantive motions; he simply characterizes the inferences from that evidence variously and rhetorically as outrageous, unsubstantiated, libelous, frivolous, baseless, speculation, unfounded or tortured. 12. Yet it is the Petitioners position, and specifically my position as a presumably rational and reasonably intelligent person and attorney, that these rhetorical characterizations are themselves completely untenable. The Notice of Motion dated April 22, 2009 has thirteen documentary exhibits all by itself. To call arguments made from such undisputable documentary proof unsubstantiated or baseless is a misuse of language and evinces an inability or a refusal - to comprehend basic reasoning or to process information. 13. Indeed, my analysis of the significance of the Ashley Baker statement (Memorandum of Law dated December 17, 2009, pp. 16 et seq.) concludes that not only does that statement and the supporting evidence prove by natural inference that the Petitioner was the victim of conspiracy by at least one police officer to frame her, but

that no other rational inference is even possible. By necessary implication I am concluding that Mr. Morans obstinacy in the face of this evidence is, at best, irrational. Irrationality is also indicated by his repeated use of overheated but content impoverished rhetoric. 14. In fact, the very arguments Mr. Moran makes in his Answering Affirmation support the conclusion that, while he is capable of rational, albeit strained, argument (see below), he is also quite capable of patently and somewhat disturbingly irrational argument. This is apparent in point 2, page 3 where he refers to veiled attempts by me. The word veiled has a sinister connotation that has no rational basis in this context at all. There is nothing hidden or underhanded in publicly filed motion papers served on all opponents, particularly motion papers that incorporate by reference all previous publicly filed papers in the proceeding. 15. Mr. Moran then goes on to assert twice in one paragraph, as if it were very significant, when in fact it is irrelevant that these attempts and the perceptions prompting them belong to Mr. Regan, and Mr. Regan alone (emphasis added) as if this somehow discredits them all by itself. There is no rational basis for this argument. The truth of propositions is not determined by how many adherents the propositions have, or by who the adherents are, but by an analysis of the evidence involved. 16. Occasional arguments without a rational basis do not necessarily indicate, without more, a chronically irrational person, of course. But Mr. Moran also makes other arguments that can only be described as puzzling (see above).

17. In sum, the paucity of content and reasoning in Mr. Morans own opposition papers confirms that there is no rational interpretation of the evidence other than that offered by the Petitioner. MR. MORANS BARELY COLORABLE ARGUMENT 18. Mr. Moran sets forth on pages 4 and 5 of his Answering Affirmation a colorable alternative explanation for imposing a plea deadline in the underlying criminal case, but it remains implausible that more than six weeks was required to reasonably accomplish the goal he cites1. 19. Here again, however, there is a troubling lack of specific facts and an eccentric, swift and inappropriate resort to hyperbole. Mr. Moran refers to witnesses that had scattered to various locations across the globe without identifying any such witnesses or where on the globe they had supposedly scattered to. Mr. Moran states that the locating, transporting and preparing of these potential witnesses necessitated the deadline provided. But it is obviously untrue that any of these factors necessitated a deadline: the only consequence of not imposing a deadline is that a trial would have to be prepared for and then might not happen because a settlement occurs. I need not inform the Court that this is an extremely common occurrence in litigation of all kinds. 20. The immediate and obvious purpose of imposing a deadline in the situation described is to pressure the defendant to take the offered plea. Mr. Moran offers one possible explanation for applying this pressure practical considerations and logistics

I personally recall that Mr. Moran had placed a deadline on a plea offer in the same case earlier in the year when I still represented the Petitioner in Livingston County Court, but it was far shorter than six weeks before the trial which had been scheduled, then subsequently postponed twice in May and July of 2006

but when the entire circumstances are taken into account this explanation is very unpersuasive. 21. Mr. Morans plea deadline was three days after this Court had issued an Order denying both parties motions for a summary disposition in this proceeding, an Order indicating that, at the very least, serious issues existed with respect to the criminal prosecution of the Petitioner. Any prosecutor even remotely mindful his obligations as an officer of this Court and of good faith and fair dealing towards defendants would not have proceeded with the prosecution at all at that point, until this Court had ruled on the merits. Pressuring the Petitioner into a plea under those circumstances was professionally odious in and of itself. 22. This puts the motion to dismiss this proceeding on mootness grounds in perspective, and in particular the procedurally anomalous way the motion was brought. (See my affirmation of December 17, 2009, paragraphs 16-20.) The entire sequence of events reeks of Mr. Morans consciousness of wrongdoing and an effort to falsely convince this Court otherwise. 23. In addition, as previously noted Petitioners investigation was very active in October and November of 2006 and had recently succeeded in uncovering and learning the conclusive significance of Todd Gaddys and Ashley Bakers statements. Given that and all of the foregoing, it is submitted that Mr. Morans decision to impose the deadline at about the same time was not a coincidence.

MR. MORANS COUNSEL 24. In my affirmation dated December 17, 2009 I discussed in paragraphs 24 through 27 the fact that Mr. Morans counsel of record has not opposed any of Petitioners requested relief since April of 2009. 25. Mr. Morans counsel did not respond to that affirmation either. 26. When I served Mr. Morans counsel with the motion papers dated April 22, 2009 I enclosed a letter marked personal and confidential expressing my deep concern over Mr. Morans conduct in this matter, the ethical difficulties the situation posed for counsel, and urging counsel to consent to the relief requested, his clients wishes notwithstanding. I had previously had a phone conversation with a more senior member of counsels law firm to the same effect. 27. I never received a response to that letter. If counsel had disagreed with the contents of the letter he was clearly obligated to respond. Nor has counsel opposed any relief Petitioner has requested in the time since. 28. It is a fair inference from these facts that the lack of opposition is deliberate, and this is arguably the only course of action counsel can take, given that he has obligations not to facilitate criminal conduct or to perpetrate or perpetuate a fraud upon this Court, on the one hand; but on the other, he has an obligation not to affirmatively act in such a way as to expose his client to civil or criminal liability. 29. Because this letter was a personal, confidential and collegial communication I have not attached a copy. I do not wish to unnecessarily make counsels position any more difficult than it already is. In addition, consistent with my own obligations to my

own client, I wish to respect Mr. Morans attorney-client privilege to the extent he has not waived it or put it in play by characterizing my assertions as baseless speculation.

CONCLUSION 30. Based upon the foregoing, it is respectfully submitted that the Court must grant the relief requested in Petitioners Notice of Motion dated December 17, 2009. Dated: January 11, 2010 ________________________________ JOHN M. REGAN, JR.