By JIMMY LAWTON

CANTON – A Canton Court Judge has ruled to suppress evidence in a stalking case after he determined a subpoena was improperly used by the St. Lawrence County District Attorney’s Office to obtain evidence.

The ruling came just days before Gov. Andrew M. Cuomo’s visit to Potsdam where he acknowledged the Third Judicial Department Appellate Division was investigating complaints made against District Attorney Mary Rain over the past several months.

While in Potsdam, Cuomo said he would not get involved in the investigation, which will be left up to the courts.

On July 27 Judge James Monroe of Canton agreed to suppress evidence in a third-degree stalking case against Rusty D. Gotham. Gotham was charged in April following complaints made against him in October of 2015.

In his ruling issued July 27, Monroe says the district attorney’s office issued subpoenas to internet providers for evidence relating to the case, but the attorneys failed to present those records to a grand jury.

The records gathered from the subpoenas instead went to directly to the district attorney’s office and were rlater turned over to St. Lawrence County sheriff’s investigators. The investigators then used those records to get a warrant that allowed them to seize his computer and phone.

Although Rain did not directly handle the case, she did sign the subpoena.

Gotham’s attorney submitted a motion to have that evidence suppressed because a grand jury was never convened. In a motion to the judge, Chief Public Defender Steven Ballan argued that since the subpoena was used to gather evidence that was never presented to a grand jury, subsequent evidence obtained via use of the improperly gathered information should be suppressed.

“Subsequently the defense attorney moved to suppress the materials provided by the IP as fruits of an illegal investigation,” Monroe said in this ruling.

Monroe said the district attorney’s office answered Ballan’s motion, but said the response did not address the issues sufficiently.

“The answer was devoid of any assertion that the subpoenas had been contemplated to be returnable before a sitting grand Jury', the ruling says. “Even though a sitting judge of superior jurisdiction signed the search warrant based upon the return of the subpoena, this court sits in a difficult aspect vis-à-vis the suppression issue.”

Citing the cases Hirshfeld V. City of New York and People V. Natal, the judge ruled to suppress the improperly obtained evidence.

“The lack of any justification other than on information gathering tool, for the grand jury subpoena, in the people's answer, gives credence to the defendant’s position that the subpoena was not contemplated to be used for a sitting grand jury,” the ruling said.

Rain did not immediately respond to requests for comment. It is uncertain at this time if Rain intends to appeal the Canton judge’s ruling.