An attorney for Sylvia Ash, the state Supreme Court judge accused of obstructing an investigation into the state-chartered credit union whose board she used to chair, said Monday that key evidence against her client had been obtained in violation of her Fifth Amendment protections against self-incrimination.
Carrie Cohen, a Morrison & Foerster partner who is representing Ash in the criminal obstruction case, argued in a court filing that Municipal Credit Union was effectively acting on behalf of federal prosecutors when it told the embattled judge in June 2018 to return the iPhoneX its chief executive had issued her just months before.
At the time, Kam Wong, former CEO of the 500,000-member financial institution, was under federal indictment for stealing nearly $10 million from MCU. Wong later pleaded guilty to the charges and was sentenced to 66 months in prison.
Prosecutors in the Southern District of New York last October charged Ash with trying to cover up Wong’s scheme, claiming that she had deleted relevant text messages and lied to investigators looking into Wong’s conduct.
Ash, who left the MCU board in August 2016, has pleaded not guilty to the charges in Manhattan federal court, and remains free on $500,000 bond.
On Monday, Cohen said that at the time of MCU’s demand for the phone, the credit union was already cooperating with the government’s investigation and did not notify Ash that the contents of the phone could be used against her.
“The facts further support that the government, which at the time was in the midst of an investigation regarding financial irregularities, fraud, and embezzlement at the MCU, used its coercive power, including any implied threat that less than total cooperation by the MCU could result in criminal prosecution of it, to cause the MCU to issue the request for electronics to Ms. Ash,” Cohen wrote. “This is sufficient to attribute MCU’s actions to the state.”
The filing asked U.S. District Judge Lewis A. Kaplan of the Southern District of New York to suppress evidence obtained from the cell phone, as well as subsequent search warrants as “fruit of the poisonous tree.” In the alternative, she said, the court should approve discovery and an evidentiary hearing to determine the extent of the government’s involvement in obtaining the device.
Ash, 62, has served as a New York state judge since 2006. She was elected to the Kings County Supreme Court in 2011 and became presiding judge of the court’s commercial division in January 2016. She has been suspended from her post, pending the resolution of her criminal case.
Prosecutors alleged that during her time on MCU’s board, Ash reaped “tens of thousands” of dollars in reimbursements and other benefits under Wong’s leadership, including airfare, hotels, entertainment and payment for her phone and cable bills, as well as other expenses.
According to the charging documents, she continued to receive Apple devices and other perks from Wong even after she resigned from the MCU board.
Meanwhile, Joseph Guagliardo, a former New York City Police Department officer and former member of MCU’s supervisory committee, pleaded guilty in January to stealing more than $400,000 while serving in a leadership role with the nonprofit bank.
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