Judge’s release violated state securing orders for defendants charged with a felony
COLONIE – Colonie police used its SWAT team to take a 62-year-old Latham man into custody to end a five-hour standoff on Swayze Drive. The early Mother’s Day, May 12, incident may not have happened at all if four days earlier Colonie Town Judge David Green had followed State law securing orders.
After a confusing and complicated preliminary hearing on Wednesday, May 15, Colonie Town Judge Andrew Sommers released Garry McFadden on his own recognizance. He is scheduled to appear again in court on May 29.
An alleged victim, who lives at the address of the incident, currently has four orders of protection against McFadden, two from Colonie Town Court (Judges Green and Sommers), one from Albany County Court (Judge Andra Ackerman) and a fourth from Rotterdam Town Court (Judge James Bradshaw). According to police and court records and confirmation from the Albany County District Attorney’s office, police have charged McFadden with violating an order of protection at least five times and he has at least two prior felony convictions.
At 11:54 p.m. on May 11, Colonie police responded to a different address on the same street for a report of a vehicle that hit and damaged a mailbox. Officers conducted an investigation that led to a house where McFadden was.
“A person called in and described the vehicle involved,” Colonie police Lt. Anthony Sidoti said. “The vehicle was located at a residence previously associated with Mr. McFadden.”
According to court documents, officers spoke to a woman at the house and asked her who drives the black Audi. She responded that McFadden drives it. According to the supporting deposition, she allowed officers to search the house, but not the basement. Not finding anything, they left.
After hearing sound coming from the basement a short time later, the woman said she had her family members check the basement and said that McFadden was on the floor and a window was open. She said she attempted to get the attention of the officers from the front door when McFadden pushed her out the door then shut and locked it, the deposition said.
Over the next four hours police attempted to have McFadden come out. The woman had orders of protection against McFadden. “We gave it time and called him (on his phone) to have him come out, but he refused,” Sidoti said.
McFadden then ceased to respond and at approximately 5 a.m., May 12, Colonie police used its SWAT team to enter the house and take McFadden into custody.
McFadden was charged with burglary and criminal contempt – first degree, both felonies, and harassment – second degree, a violation and ticketed for leaving the scene of a property damage accident.
At 6:39 a.m., the time of the arrest listed on the report, his condition was described as “impaired by alcohol”. Police said that because of the lapse in time and he was inside the house after the crash, it was not possible to determine if he was driving while intoxicated at the crash. In court papers, McFadden did say he was driving the vehicle.
McFadden was transported to St. Peters hospital to treat exposure to pepper balls used by police. He was returned to the Colonie police station and then arraigned in Colonie Town Court by Judge Green. McFadden was sent, or remanded, to the Albany County jail until Wednesday’s preliminary hearing.
According to State law CPL 530.10, when arraigning a defendant with any felony charge “a city court, a town court or a village court may not order recognizance or bail when (i) the defendant is charged with a class A felony, or (ii) the defendant has two previous felony convictions.”
That order, however, was not followed by Green, four days earlier, when he released McFadden after another felony arrest on May 8.
On that day, Colonie police were investigating a different hit and run accident and were interviewing another person (not McFadden) at the same residence as the May 12 incident on Swayze Drive, according to police. While officers were there, McFadden was in the residence and two of the orders of protection are “full-stay-away” and the protected party was present, police said.
One of the orders was issued by Green in July, after McFadden was charged with criminal contempt – first degree, a felony, and harassment -physical contact, on June 29, 2023 at the same residence. At that time, Green did remand McFadden pending a preliminary hearing, but on May 8, Green released McFadden on his own recognizance to appear again on June 17, 2024, according to Colonie Town Court records. McFadden, however, was back in court for arraignment on the charges from the Mother’s Day incident before that took place.
At the May 12 arraignment, Green also appointed a public defender for McFadden, but it was determined at the subsequent hearing McFadden did not qualify for one.
In Wednesday’s court hearing, McFadden said he earned $120,000 a year, which would disqualify him.
McFadden, however, said that he had not heard back from the lawyer he retained and no counsel appeared in court on his behalf.Because McFadden did not have an attorney and the Albany County Assistant District Attorney did not move forward with the hearing, the case will remain in Colonie Town Court for now.
According to the Albany County District Attorney’s office, felony charges are moved to Albany County Court after a hearing. That hearing must take place within 144 hours of an arraignment.
“The preliminary hearing was scheduled for Wednesday for the arrest that occurred Sunday was within 144 hours of his arrest,” Albany County District Attorney’s Office Spokesman Darrell Camp said. “No preliminary hearing was scheduled for the first arrest on the 8th and we were not notified of it.”
The charges, however, were not reduced and will be addressed at McFadden’s next court date of May 29, according to Colonie Court Clerk Mary Falace.
What about the judge
It is unclear who or what agency is responsible for investigating and adjudicating law violations made by judges and what due process a particular judge has.
Spotlight News also spoke to the State Office of Judicial Support, which issues guidance to Town and Village courts to clarify the securing orders in this case and were told that The OJS does not speak to the media and was directed to call the State Office of Court Administration. Spotlight then contacted SOC, but staff said Spotlight could only talk to the director of public information. Spotlight called and emailed multiple times over three days and, as of press time, the director of public information has not responded.
In 2023, a different director of public information of the SOC initially responded to Spotlight when asked about bail eligibility for three other stories involving local judges not setting bail, including one involving Judge Green. However, after that initial acknowledgement , the director of public information provided no answers to any questions and only said they were working on it. The last response on that request from SOC was in September. SOC also said that that director had retired.
Judges are not allowed to answer questions on specific cases, but may speak generally if they choose. A voice mail was left for Judge Green, but he has not responded.
