By Michael Morton
Judge Gerald Hayes ruled that prosecutors from the state attorney general's office had introduced inadmissible evidence as they sought a felony charge and a misdemeanor charge against the men, Norman Barabash, 58, of 249-12 Belmont Ave. in Bellerose and Douglas Allen, 59, of Poughkeepsie. Attorney General Eliot Spitzer had said the pair hired tour guides in Thailand and the Philippines to take customers on their Big Apple Oriental Tours to bars in those countries. Once there, the guides would negotiate fees with bar managers, known locally as mama-sans, to hire prostitutes at the establishments for specific sexual acts, Spitzer said. Reached at his home this week, Barabash referred all questions to his lawyer, Daniel Hochheiser.”I'm pleased with Judge Hayes' contention,” Hochheiser said. “There's no cause to believe my client committed any crime here or abroad.”Barabash and Allen had faced up to seven years in prison if convicted, and a spokesman for the attorney general's office said the state would appeal the dismissal. The indictment covered alleged activity between Dec. 9, 2002 and June 11, 2003, with evidence gathered by an investigator from a former client.In his decision, Hayes found that the customer had not been on a tour with the company since 2000 and ruled that his taped interview constituted hearsay and was therefore inadmissible as evidence. Because the grand jury had already heard the tape, Hayes ruled its members had been unduly influenced and dismissed the case.Anticipating that his decision would be appealed, the judge examined the other evidence as well. He wrote that lawyers for the defendants argued that their clients “had no direct connection to any prostitution activity in the Philippines,” and he agreed that there was not sufficient evidence to prove otherwise. Barabash and Allen each faced a felony charge and a misdemeanor charge for allegedly promoting prostitution.Hayes wrote that the law defines felony prostitution promotion as someone “engaged in an active role of managing, supervising, controlling or operating a house of prostitution.” He found no evidence that the defendants had any contact or connection with alleged prostitutes in Thailand or the Philippines. To be guilty of the misdemeanor charge, a defendant must have procured patrons for prostitutes or helped prostitutes and directly profited from the sex acts. Hayes found no evidence to support that charge either.The attorney general has not yet filed his appeal, but when he does so the appellate division will decide whether the case can proceed. Spitzer previously also filed a civil suit, and a temporary restraining order remains in place prohibiting Barabash and Allen from running or operating their business until all legal proceedings are settled. The civil suit could still be pursued once the criminal one is concluded.Big Apple came to Spitzer's attention after he was contacted by Equality Now, a Manhattan-based human rights group trying to stop sex tourism and the trafficking of women. The organization has said the prosecution of Big Apple was the first against a suspected sex tourism company in the United States, a result of the Bush administration focusing on the issue. Equality Now gathered evidence against Big Apple beginning in 1996, but Queens District Attorney Richard Brown dropped the case for lack of evidence. The group then contacted Spitzer in 2002 and he began an investigation, filing the civil suit in 2003 and the criminal suit in March 2004.”We think there's more than enough evidence to bring this case to trial,” said Ken Franzblau, an attorney for Equality Now.Reach reporter Michael Morton by e-mail at news@timesledger.com or by calling 718-229-0300, Ext. 154.
