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Former prosecutor in middle of UAlbany legal battle


As a prosecutor in Albany County, Chantelle Cleary successfully handled cases involving sex trafficking, animal cruelty and rape.

Now Cleary’s work is at the center of another sex crime case – this time involving a former University at Albany student who claims Cleary was biased against him, which led to his dismissal from the school.

The former student claims Cleary was biased while in her former role as the school’s Title IX coordinator investigating allegations of sexual assault.  That alleged bias, the former student and his lawyers contend, led to his expulsion for violating the school’s code of conduct.

And following a decision by the state’s second-highest court on Thursday, the ex-student has a chance to make his case for reinstatement.

“An impartial investigation performed by bias-free investigators is the substantive foundation of the entire administrative proceeding,” the Appellate Division of state Supreme Court’s Third Department stated in a 4-1 ruling.

Appellate Justice Molly Reynolds Fitzgerald authored the decision, which was supported by Presiding Justice Elizabeth Garry and Justices Sharon Aarons and John Colangelo. Justice Michael Lynch dissented.

The court kicked the case back to acting Supreme Court Justice Jonathan Nichols. It reversed Nichols’ decision to deny the ex-student access to evidence against him in the matter.

The ruling said the male student, who gave the only first-person account, maintains he was a passive participant in an oral sexual encounter in September 2017. But it said Clearly gave a “significantly different rendering of the event” in a notice of investigation to the male student. It portrayed him as the aggressive party and backed the allegation of Sexual Assault I in the school’s code of conduct.

“It is not unreasonable to question whether Cleary changed the wording (and as such the alleged facts) to correspond with the definition of sexual assault I as found in the student code,” Fitzgerald stated.

In scathing language, the justice wrote: “As to the possibility of individual bias, Cleary admittedly altered the facts as reported to her.”

The ruling said the UAlbany conduct board that expelled the male student relied heavily on a summary of statements from people who watched the female student before and after her encounter with the male student. Fitzgerald noted their accounts were not in sworn affidavits, but mere statements collected by Title IX investigators.

“In that regard, Cleary freely admitted that her team ‘didn’t include any information that was irrelevant to a finding for the referrals,’  a statement that begs the question – Who determined what was ‘relevant?’ Fitzgerald stated.

The dissenting Lynch argued: “The implication here is that Cleary redacted potentially exculpatory information from the witness statements.
The flaw in that thesis is that none of the witnesses actually observed the encounter between petitioner and the reporting individual. Rather, the majority of the witnesses consistently corroborated the reporting individual’s contention that she was intoxicated prior to the encounter.”

Lynch said the male student was afforded an impartial investigation. He said the issue of Cleary’s wording was fully explored.

“However ill-conceived Cleary’s rephrasing was with respect to that charge, I am satisfied that the board made its own findings of fact as to the nature of the encounter,” he stated.

The ruling described the sequence of events as follows:

On a Friday night in September 2017, the male and female students “allegedly engaged in nonconsensual sexual conduct.” The male student allegedly provided Xanax to the female student and two other students. (The male student said their encounter was consensual. The female student did not remember having sex. She had little memory of the night).

The next morning, the female student told the male student she could not remember the night before. Later that day, she text-messaged him: “Last night was amazing, we should do that again.” She told him: “Sorry to freak you out this morning, I just don’t remember anything that happened.”

She sent him another text suggesting they “link up.”

At dinner, the male student said his girlfriend was visiting. The male and both females were at a party in his dorm that night where the females argued. The female student remembered she was pushed outside the door of the party and fell down a stairwell. She recalled being dragged back to the room and sleeping in a common area of the male student’s dorm suite. The next morning, she saw the male student and his girlfriend in bed. She threw water on them and left. Friends in her dorm told her of a rumor that she “had sex in the bathroom” at a fraternity party two nights earlier. At their advice, she got a sex assault exam and gave a statement to UAlbany police. The incident was reported to Cleary.

Cleary and three other investigators sent a report to the college’s conduct board. After the hearing, the board expelled the male student. He lost his appeal, then sued the college. He filed a motion asking for discovery, alleging Cleary was biased against him. Nichols denied the request and transferred the matter to the Appellate Division.

Cleary, who worked in the special victims unit for District Attorney David Soares from 2010 to 2014, has since left UAlbany. She declined to comment on the pending litigation, according to a person at Grand River Solutions, a company where Clearly works as a senior IX consultant. A UAlbany spokesman said the college does not comment on pending litigation.

Andrew T. Miltenberg and Philip Byler, attorneys at the Manhattan-based firm of Nesenoff & Miltenberg, which represents the male student, called the ruling “an important recognition that an impartial investigation and hearing is critical in Title IX matters.”

They said they plan to depose Cleary.


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