The Check for Kelly Lester’s Fish Is in the Mail?

What would happen if someone came on your property, stole something, sold it to a nearby store for several hundred dollars, bragged about it and, when confronted, agreed he had stolen it? He’d be arrested, of course, and the next day arraigned and brought before a judge.

Well, the first part of this is essentially what happened to the family of Kelly Lester on Abraham’s Path in East Hampton in the summer of 2011. But it has taken a year and a half, a state assemblyman, an attorney and an arm of the federal government to get the larger matter settled. And not only have the Lesters not been repaid, nobody has gone to jail.

I think how this matter has taken up so many people’s time, has involved such effort and has not been about jailing the culprit, but has only been about getting the value of what the thief stole back to the owner. And even that took nearly a full year and a half.

It’s also a story about corruption, bureaucracy, insensitivity to regular people trying to earn a living, and about fishermen.

East Hampton has a long history of people laboring to bring fish and shellfish out of the sea. It’s not exactly a secret. The Bonackers, which is the name the local folk gave to themselves, have been clamming, surfcasting, setting lobster pots and catching fish in nets from boats since the first settlers landed here in 1639.

The descendants of these early settlers bear the prominent family names of their founders. Lester is one such name, and one of the descendants is Kelly Lester, who lives with her kids in a small house on Abraham’s Path between the railroad tracks and the Montauk Highway. Her brothers, her uncle, Kelly herself, they often bring in loads of fish, clams and scallops. The Lesters freeze some, eat some for dinner and put others out in an ice chest by the road with a sign on it saying how much it is a pound and just put the money in the nearby bucket to buy it.

On July 8, 2011, a man working for the Department of Environmental Services, Richard Maggio, came on the property, confiscated nearly 100 pounds of fluke and porgies because he didn’t see the proper tags and believed Kelly’s brother Paul Lester had more than the legal limit of fish as far as he could see, and then took these confiscated goods—some of which was the Lesters’ dinner—brought them to Stuart’s Fish Market around the corner and sold them for $202.05. When Paul found the man at the market and wanted the fish back, the DEC officer reportedly said, “It’s too late.” Paul was then cited with possessing untagged fish and also with possessing more than his daily limit of fish. Kelly was given a summons for allegedly selling shellfish to the public without a permit, a misdemeanor.

After pleading not guilty that August, Kelly and Paul Lester appeared in Town Court to answer the charges in October 2011. Present was Maggio, the DEC officer who had issued the summons and confiscated the fish. Also present were lawyers and a packed courtroom of friends of the Lesters.

Justice Lisa Rana heard both sides. She determined that the DEC agent had come onto the property without a warrant. She determined that he had not actually seen any clams or fish being sold. He did say that he had seen a “Shellfish For Sale” sign. The Lesters were found not guilty.

At this point, the focus of the case shifted to the matter of the $202.05. Shouldn’t it be returned to the Lesters? Of course it should. The amount was in lieu of the “evidence” that was taken.

Now it turned out that there was no law on the books of the DEC which says that if they confiscate evidence at a crime scene, and it turns out that the perpetrator of the so-called crime is proven innocent, the DEC has to return the evidence. So, no dice.

As a result of this rebuff, the Lesters’ attorney argued that what really happened here was that his clients were denied their rights to due process since the DEC sold the evidence prior to the trial. The Lesters also took the matter to our state Assemblyman Fred Thiele, and Thiele has looked into it, declaring that this rule needs to be changed so that evidence, or what has been gotten in lieu of evidence, cannot be seized without a warrant or probable cause. This process is now underway.

None of this, however, was getting the $202.05 back.

There are members of the Lester family who do have licenses to commercially sell shellfish, of course. And one of them is Kelly Lester’s uncle, James Lester. The clams were being sold by James, he verified, under the auspices of his commercial license. Indeed, he had them on the lawn of his niece. It was perfectly legal. And so, not only was Kelly Lester acquitted of having committed a crime by having these clams up for sale, there was no crime whatsoever that ever took place. Paul Lester was acquitted, too. Therefore, they saw no legal mechanism whereby the DEC could keep the confiscated seafood, or the proceeds from selling it.

This position was presented to the New York State Department of Environmental Services, and, on September 19, 2012, the Lesters’ attorney learned of the decision to return the money to the Lester family, a fact that was confirmed by DEC spokesperson Lisa King in an email to the media.

“We will be returning the seized assets to James Lester for $202.05,” she wrote. “This has not occurred yet, but DEC’s attorney has made arrangements with their attorney.”

And so the matter has been closed. Or has it? What about trespassing on private property? There has been a crime committed here. There was the theft. And what about the interest earned during the last year on the possession of the $202.05?

This whole matter has gone all the way up to the desk of Governor Andrew Cuomo. Considering not only this indignity but many others—an underfunded and apparently inaccurate measure of the fish stocks by the DEC, the overcharging of local fishermen for minor infractions, harassing them for paperwork and, in a major scandal involving another level of fishing regulation bureaucracy, the determination that the National Marine Fisheries Service had been overseeing commercial fishing in the northeast by confiscating fishing boats and motor vehicles with a recklessness beyond all bounds of decency—the Governor joined with other regional governors to declare that regulation measures have severely limited the catches being brought in by the industry and that the area be declared a “disaster area.” On September 18, 2012, the U. S. Department of Commerce issued a disaster declaration for the region, making it eligible to receive tens of millions of dollars.

Thus do the authorities harass our local fishermen, steal their fish, trespass their property and fight for a year and a half before agreeing to return $202.25. Perhaps the Lesters will get a present before the new year.

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