Justice Sylvia Ash. Courtesy photo
By Tom McParland, Law.com
A federal judge on Tuesday denied a bid by Sylvia Ash, the indicted Brooklyn Supreme Court justice, to suppress evidence she produced to the state-chartered credit union whose board she used to chair. The ruling, from U.S. District Judge Lewis A. Kaplan of the Southern District of New York, rejected arguments by Ash and her Morrison & Foerster attorney that federal prosecutors had obtained the data from her Municipal Credit Union-issued iPhone in violation of her Fifth Amendment protections against selfincrimination. In a 19-page opinion, Kaplan found that Ash had failed to support her claims that the government was behind MCU’s request that she return the phone amid an internal probe of wrongdoing by its former chief executive, and said her argument that she was compelled to do so was “insufficient to warrant a hearing, much less to suppress the phone.”
The ruling also allowed prosecutors to use Ash’s emails, as well as statements she made to investigators and a grand jury, as evidence in the case. Carrie Cohen, who is representing Ash in the criminal obstruction case, had argued that MCU was already cooperating with the federal government when it made the request in June 2018, and had failed to inform her client that the contents of the phone could be used against her.
At the time, Kam Wong, the former CEO of the 500,000-member financial institution, was under federal indictment for stealing nearly $10 million from MCU. He later pleaded guilty to the charges and was sentenced to five and a half years in prison. The Manhattan U.S. Attorney’s Office charged Ash last October with trying to help cover up Wong’s scheme, alleging that she had wiped the phone of relevant text messages and then lied to investigators looking into Wong’s conduct.
Ash, who left the MCU board in August 2016, has pleaded not guilty, and remains free on $500,000 bond. Prosecutors have stated that they “did not ask or direct” MCU to return the phone, which contained emails, texts and other communications between Ash and Wong. Kaplan said that although the government’s response “arguably falls short of an unambiguous assertion” regarding its alleged involvement, it was “quite reasonable” that the credit union had its own interest in obtaining MCU-issued devices, and Ash had willingly complied. “Ash’s argument fails regardless of whether the government somehow instigated … MCU’s request,” he said.
Cohen, Ash’s attorney, said she was “disappointed in the ruling and continues to believe the government obtained evidence in violation of Judge Ash’s rights.” “We now will press forward to trial to set the record straight and restore Judge Ash’s good name and reputation,” she said. The Manhattan U.S. Attorney’s Office did not provide comment on Tuesday.
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.