January 09, 2013LANCASTER — As soon as both the prosecution and defense rested their cases on Monday afternoon, Dec. 31, 2012, District Court Judge Paul Desjardins ruled from the bench that the state had not met its burden of proof in establishing guilt and that Dalton Town Clerk Sandy York was not guilty of stealing $100 in town funds on Thursday, Aug. 9.
York, who has served as the elected town clerk for 31 years, shed tears of relief that she was found not guilty of the misdemeanor charge, and family and friends broke out into applause. The judge's declaration also lifted the prohibition that was imposed on York after her arrest that kept her from entering the town offices or being in their near proximity.
Since then, however, York has resigned her post (see Letter to the Editor)
Although a film taken by digital video recorder (DVR) surveillance camera did appear to show York putting cash into her black purse, Dalton Police Chief Mario Audit admitted under questioning by defense lawyer Len Harden of Lancaster that he had neither interviewed York before seeking an arrest warrant nor checked with Dalton deputy town clerk-tax collector Jesse Wentworth to see if any money was actually missing from the town's petty cash drawer on the next town office's next business day, Monday, Aug. 13. Establishing that money is missing is an important element in determining if the crime of theft, including an intent to steal, has been committed, Harden noted. Wentworth testified that the petty cash drawer was "perfect," filled with $200 worth of one-, five-, and 10-dollar bills.
"Why didn't you just ask her what was going on?" Harden asked Audit. "York's been town clerk for 31 years, and you never had the common decency to ask her 'what's going on?'"
Furthermore, Audit said he had not realized the importance of securing the surveillance tapes after York cashed out on Aug. 9 until Wentworth in her capacity as deputy town clerk took the office cash register out of the vault on Aug. 13. The chief testified that by the time he understood that York could have taken large bills to change for smaller ones before she went on vacation and then brought this cash back to the town vault so Wentworth could easily make change to townspeople paying fees, these recordings had automatically been overridden.
Audit, who testified that he had only attended the state's Police Academy for part-time law enforcement officers, also admitted a lack of familiarity with the specifics of municipal accounting procedures and what monies a town clerk would routinely handle — dog licenses, marriage licenses, and birth certificates — and to what accounts they would be deposited. Some motor vehicle registration fees are sent to the state, for example. He completed a semester-long accounting course during his junior year in high school year in 1981 and also works part-time collecting monies for a utility company, heightening his awareness of maintaining good security.
Chris St. Cyr, a former sergeant in the Lancaster Police Department who joined the Dalton police force as a part-time lieutenant in October after Chief Audit had had York arrested for the alleged misdemeanor, prosecuted the case. St. Cyr is also a part-time deputy sheriff-crime analyst in the Essex County Sheriff's Department.
Audit first reviewed the Aug. 9 surveillance tape the following day on Aug. 10. After he had ensured that the tape recorded during the cashing out period was preserved, he had shown it to select board chairman Vic St. Cyr, who, in turn, informed his fellow selectmen — Kevin Whittum Sr. and Julia Simonds — about the recording. Prosecutor St. Cyr is distantly related to the selectman St. Cyr.
St. Cyr showed the Aug. 9 tape — the heart of the case he presented — in court, projecting it onto the left-hand wall of the District court. He apparently had anticipated that Audit would be able to interpret what was seen with a running commentary, but Judge Desjardins upheld Harden's objection that no foundation of expertise had been laid.
Audit was able to answer specific questions posed by the prosecutor, however. In answer to St. Cyr's question, "What things did you observe that caused you some concerns?" Audit replied, "Her leaving cash on the desk unsecured for such a long time (17 minutes)." When asked by St. Cyr about York's body language, Audit replied that she had looked to the left and to the right before tucking a quantity of cash into her pocketbook. The prosecution said these "subtle clues" and her "furtive movements" helped establish probable cause.
Harden said that the soundless tape showed York going about her cashing out routines, moving a manila folder of paychecks, tying up her hair, talking on the telephone and going to the window to handle townspeople's requests. It does not, however, show her looking furtive, he said.
Under Harden's questioning, Audit said that he had sought York's arrest warrant from Jennifer Martin, a justice of the peace at NHDOT in Lancaster who works there as a clerk and dispatcher, rather than going to a judge at the courthouse. A justice of the peace need not be trained to understand the elements of theft, and Marten asked no questions before signing the arrest warrant, Harden pointed out. (LPD Chief Bill Colborn no longer permits officers to take this route when seeking a warrant; department policy calls them to go before a judge.)
Through questioning, Harden established that St. Cyr's second witness, forensic auditor Karen Marie Carew of Carew & Wells PLLC, had completed a report this fall for the select board but that no statement in it could be linked or tied to the Aug. 9 video recording of the cashing-out process. Harden said that in reviewing documents from the discovery process, he had found no statement from York that would add to anyone's understanding of that day.
Both Wentworth and former Dalton police chief John Tholl of Whitefield testified without reservation that York was an honest and trustworthy person. They both said that York had no driver's license, making her dependent on someone else changing large bills to small ones. Dalton has neither a bank nor store in which this could be done. In the past, both these character witnesses called by Harden had done this errand for York from time to time. Before his death, York's husband ordinarily drove her to the bank.
After the trial ended in an acquittal on New Year's Eve, Tholl stated that justice had been served.