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The Times
  • After Herkimer Co. DA election, notice of claim withdrawn

  • During this year’s race for Herkimer County District Attorney, Democratic candidate Mary Iocovozzi linked her opponent to a $50 million notice of claim to suggest he was responsible for potentially costly legal mistakes. The Republican candidate, Acting District Attorney Jeffrey Carpenter, however, argued a...
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  • During this year’s race for Herkimer County District Attorney, Democratic candidate Mary Iocovozzi linked her opponent to a $50 million notice of claim to suggest he was responsible for potentially costly legal mistakes.
    The Republican candidate, Acting District Attorney Jeffrey Carpenter, however, argued at the time the notice was nothing more than an underhanded political ploy concocted by somebody to sway the election in Iocovozzi’s favor.
    Then once the election was over, Carpenter speculated, the notice would be dropped.
    That’s exactly what happened last week, when the attorney for Herkimer County was notified Nov. 14 — a week after Carpenter was elected DA — the notice of claim was being withdrawn.
    The notice was filed Sept. 5 against Herkimer County and the village of Ilion on behalf of David Plunkett, who alleged he was falsely imprisoned and maliciously prosecuted for biting an Ilion police officer in 2006 while infected with HIV.
    Prosecutors, Plunkett argued, ignored previous court rulings stating that someone’s teeth cannot be a dangerous weapon. Plunkett’s most serious assault charge was dropped earlier this year after the state Court of Appeals further clarified the issue by stating the same logic should have been applied to someone’s saliva.
    Speaking on Plunkett’s behalf this week, New York City-based attorney Matthew Brinckerhoff said Plunkett has decided not to sue Herkimer County or the Ilion municipality under state law, but he could still choose to sue anyone involved individually.
    “I would love to get him some kind of justice and compensation if I can, so what I was preparing to do, and did do, was make sure he could protect every right he had,” Brinckerhoff said to explain why he created the notice, although he has not been hired as Plunkett’s attorney.
    “I think that there are more fruitful avenues to pursue than the county and municipality under the state law, and that ultimately was Mr. Plunkett’s decision to do so,” Brinckerhoff said. “I don’t know anything about politics up there, and — I don’t mean to sound callous — nor do I frankly care, and neither does Mr. Plunkett.”
    But as this notice surfaced during the DA’s campaign, Carpenter speculated Iocovozzi’s supporters were behind it, since it was notarized by Plunkett’s former attorney Audrey Baron Dunning, who also was an active member of the Herkimer County Democratic Committee that endorsed Iocovozzi for DA. Her firm also served the notice on the county and the Ilion municipality.
    The county’s attorney, Gregg Johnson, last week said he was given no explanation for why it was withdrawn. A hearing to examine Plunkett’s claim was adjourned twice before the election and was rescheduled for a Nov. 15 proceeding until Brinckerhoff alerted Johnson — the day before the hearing — that the state claim was being dropped.
    Page 2 of 2 - “Based on my review of the whole matter, he doesn’t have a viable claim against Herkimer County and therefore I think he made the right decision not to waste anybody’s time,” Johnson said.
    Carpenter, however, said this latest development only vindicates his earlier concerns, especially now that Dunning has since been recommended for Democratic commissioner of the Herkimer County Board of Elections.
    “I believed all along, given the players that were involved and the timing of the notice of claim, that this was purely politically motivated,” Carpenter said. “I did not, at any point in time, believe there was any merit to the notice of claim, and I think that it being withdrawn by the claimant proves my theories to be correct.”
    Iocovozzi did not respond to efforts seeking comment, but Dunning maintained she had nothing to do with creating Plunkett’s notice.
    “Other than extending the courtesy to Mr. Plunkett about notarizing it and making sure it was delivered, I really don’t have any involvement in it,” Dunning said. “I personally do not see any political motivation. The timing of the events were the timing of the events, but obviously Mr. Carpenter is entitled to his opinion.”
    This week, Brinckerhoff said he had no prior dealings with Dunning and only reached out to her as Plunkett’s former attorney in order to get her to notarize and deliver the notice locally within 24 hours before the filing deadline passed.

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