Tommy Conducts a Preliminary Hearing

When an arrest is made in New York, the criminal defendant is first brought before a magistrate for arraignment. In rural towns, the magistrate is usually one of the town justices in the town where the crime was committed.

The town of Hoosick is a rural town in the northeast corner of Rensselaer County, at its border with Vermont. Its economy is mostly agricultural; mainly family farms. Its one village, Hoosick Falls, is an old mill town. Hoosick is a scenic area, with some antique shops, and is notable as the home of the late artist, Grandma Moses. The Moses family still operates a farm with a roadside stand that sells excellent melons, corn, tomatoes, and other produce that is grown there.

For many years one of the town justices has been Thomas Restino, Jr. He is an affable fellow and is usually reelected without opposition, endorsed by all political parties. In the late1960s, and for some period of time in that era, his main occupation was operating an Olixir brand gasoline station, just south of Hoosick Falls on Route 22. Many of the criminal defendants and some traffic violators who were arrested in the area were initially brought before Judge Restino, who was usually available during the daytime at his Olixir station. The court was frequently held right at the Olixir station, sometimes interrupted when Tommy would temporarily halt the proceedings to pump gasoline for a customer.

Some time in the late 1960s, or perhaps in 1970, a rash of barn fires occurred in the town of Hoosick. Ultimately, the New York State Police arrested several high school-aged young men from the community and charged them with arson. They were arraigned by Judge Restino on multiple felony charges. The law required that each young man have separate counsel, and I was one of several attorneys employed by parents or assigned by the court to represent the boys. A preliminary hearing was demanded by all of the defense counsel.

A preliminary hearing is a fact-finding hearing. It is held after a person is charged with a felony but not yet indicted by a grand jury. The purpose is to determine whether there are, in fact, grounds to have the matter presented to the grand jury for indictment. Defense counsel usually wants a preliminary hearing because it gives them the opportunity to cross-examine the prosecutor’s witnesses and find out the strength of the evidence against their client.

Judge Restino scheduled the preliminary hearing for an early weekday evening. Because there was so much public interest in the case, both by the victims of the arson and other farmers, as well as the families of the boys, the preliminary hearing was held in the high school gymnasium to accommodate the crowd. In addition to Gus Cholakis, the Rensselaer County District Attorney, some of his staff members, and New York State Police investigators, there were all of the defense attorneys. It was an unusually large and somewhat boisterous crowd that Tommy had to preside over. A record of formal court proceedings is required. Usually, a court employs a professional court reporter who (in that era) typed a verbatim record of everything said into a stenotype machine, and later translated the paper record into a typewritten transcript. There were no professional court reporters in Hoosick, and rather than bring one in from Troy, Tommy instead employed two young local women who knew secretarial shorthand. He instructed one of them to record the attorneys’ questions, and the other one to record the witnesses’ answers. Although the ladies tried their best, the inadequacies of the system were apparent when an attorney would ask for some testimony to be read back. It was quite amusing listening to them try to coordinate the questions and answers, and I think that sometimes attorneys requested that testimony be read back simply for their amusement.

Each defense attorney had a separate right to cross-examine each prosecution witness and the proceedings dragged on. Tommy struggled with objections to testimony made by the several defense attorneys, as he was a layman with no legal training. At one point when he sustained a defense objection to some evidence, the victims in the room started loudly voicing their displeasure at his ruling. Tommy explained to them that he personally didn’t always agree with the rulings that were made by him as the judge, and he spoke of himself as the judge in the third person: "I don't agree with him, myself, but he is the judge and that's how he had to rule."

The preliminary hearing could not be completed in just one evening, and it dragged into a second night. After each session was adjourned, the prosecutor, his staff, and some of the police investigators and some of the defense counsel stopped at Brother John’s seedy tavern on Route 7 in Pittstown for a few drinks and a discussion of the proceedings, which were an amusing change from usual court appearances.

Ultimately, Judge Restino determined that the district attorney had produced sufficient evidence0, and the boys were subsequently indicted by the Rensselaer County Grand Jury. Because of their ages and previously unblemished histories, plea bargains were reached and the boys pleaded guilty to lesser charges. They were placed on probation by the County Court.