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Nasir and Matt are joined by Josh Malatino of Sno Kone Joe to hear his side of the story behind the alleged altercations and arrest involving another ice cream truck vendor and the Gloversville police.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And we’re doing a recap episode I think today, right, Matt? Of an episode that we did, I think, it was two weeks ago or a week ago. I always get the timings messed up.

MATT: Yeah, recap or follow-up, I don’t know. It’s not similar to an episode we’ve done before but I’m looking forward to this one. It should be pretty good.

NASIR: We covered a dispute between two ice cream truck owners. I’m not sure exactly how it works but we covered it between Sno Kone Joe and Mr. Ding-A-Ling. Actually, Sno Kone Joe or the owner of Sno Kone Joe actually reached out to us, wanted to set some of the record straight because, obviously, you know, we just read what we see online, and who knows how truthful that is?
Matt, who do we have today? Why don’t you make a nice little introduction for Josh here.

MATT: Yeah, like you said, we have Josh. Is it Malatino?
JOSH: Yes, that’s correct.

MATT: Josh, like I said, the owner of Sno Kone Joe and we can only go as far as what we were able to read online when we did the episode before so we’re really glad to have you here to kind of get your side of the story.
Just to do a quick recap of what we talked about before, or at least how we had heard it or read it, there was a dispute between you and Mr. Ding-A-Ling and, from what we read, there was an arrest for stalking and harassment, et cetera. Eventually, the charges I believe were dropped against you.
I guess the first question is, you know, kind of give us your first-hand take on really what happened here.
JOSH: Well, back in 2013, my ex-girlfriend and myself had a permit in the city of Gloversville to vend ice cream. We had two trucks that were in the city that have roughly 15,000 people on the high end. Sno Kone Joe has been in the city for… this would be the 46th season of it. There was a previous owner. My family had bought the business out. My ex-girlfriend had bought a truck and we were allowed to use another truck.
Back in 2013, we were out selling ice cream. On different days, these alleged incidents happened. The first incident would have been with me, myself, on April 16, 2013. The cops were alleging that, as Hollister was going west on 8th Ave. in the city, I was going east and we completely just bypassed each other. Hollister testified that he was going about 20 miles an hour with his ice cream truck with his music on and I was going slow, with my music on, in the opposite direction, and I allegedly yelled, “This is my town!” which I did not yell. But, even say I did, what kind of crime is that? It’s not a crime. So, that was the only incident we had on that day. I was arrested for that sole incident – that was my harassment charge.

NASIR: You were arrested for that?
JOSH: I was arrested for that; that was my harassment charge.

MATT: Wow.

NASIR: And that was the sole allegation at that time, right?
JOSH: Excuse me?

NASIR: I said that was the sole allegation at that time on April 16th that you had yelled out that, “This is my town!”
JOSH: That was allegedly what I yelled. That was what I was arrested for – for harassment. So, people think that the stalking charge was for following. They had nothing to do with following. It was more or less stating that we were offering free ice cream from our business which in turn was jeopardizing another person’s business.
On April 28th I believe – between the 26th and 28th of 2013 – I was vending ice cream and Hollister had come past me. He drove past me, okay? When he took a right on to Spring Street, I had no idea where he was going to be. We were just following a route that’s been followed for, at that time, 44 years. So, he continued on that way. I stopped and I made five different stops to sell ice cream to regular customers – to the ambulance department workers – and we ended up coming into contact where I was selling ice cream about a block away and he sat up there with no customers at all and he sat there and waited for me to come up. He went to a stop sign. I stopped at the stop sign. I went through, pulled over to his customers and served the customers. And he said that I was offering free ice cream from my truck at that time whereas my witnesses that were on the street, people that I had no idea their names or didn’t know, came in and testified for me at my trial and said that I never yelled a thing out my window. So, that was my stalking charge. That’s what I was arrested for stalking for – for allegedly saying that I had free ice cream. My name was humiliated across the world – you know, not just the United States, it was picked up on in all these other countries and the media made it look like it was this big old ice cream war when there was nothing of anything like that that ever happened.

NASIR: So, what’s really going on here do you think? Do you guys have a history? I mean, before you answer that question, is the ice cream truck industry in general this competitive or is it just something in your town? What’s going on here?
JOSH: Well, I could understand where people think it’s competitive when you have more than one ice cream truck. But it’s the same thing as you have with, you know, we have ten pizzerias in a city of 15,000 people. We have five different hotdog vendors in the city of 15,000 people. I think this is more or less a personal thing with the chief of police in Gloversville. We had a meeting in 2012 and he had threatened that, you know, me offering free ice cream for my business would jeopardize somebody else’s business so I asked him, “So, say I owned a pizza truck and I decided to park my pizza truck – and I have a permit from the city – directly across the street from a pizzeria and I decide to give away free slices that day, what would you do?” He’s like, “I would arrest you for stalking because you’re jeopardizing their business.” I said, “So, because we were to offer free pizza from a pizza vending business and they had a pizzeria right across the street, I would be arrested for stalking because I’m jeopardizing their business?” It got so personal with the chief of police. In my opinion, he’s overstepped his badge and it’s just straight up corruption and I’m going through it again with him right now with a permit application for the city of Gloversville and he likes to dictate…

NASIR: Yeah, I just heard about that. Are you reapplying for an old permit or did you lose your permit and doing a new permit and now they’re denying your application?
JOSH: He hasn’t denied me my application but what he has done here is I filed two weeks ago for a permit in the city of Gloversville. On the 15th, he issued a memo to the city clerk. I can go through this here with you a little bit but the process of getting an application of peddler’s permit in the city of Gloversville, you need to go through a background check and the city clerk has to approve that you have your liability insurance, your registration, a DBA, a tax ID number. So, on the background check, it says here your name, date of birth, you know, a couple of other questions and then it says, “I, [please print name], am requesting a background check for…” and it gives you three different spots – vendor services in the city of Gloversville, employment or college admission, or others. So, I filled this all out, gave my $25 and I checked “vendor services in the city of Gloversville.” So, you come over to the application process of this. It asks for your name, you know, if you have a conviction record which I have no conviction record, the product of what you’re going to be selling, tax ID numbers, you know, the make and model of the ice cream truck. And then, on the second page, it asks for liability insurance and then it says city clerk, tax numbers, permits, and insurance. She would have to sign off that you handed all this in and then it says, “Police Chief: Satisfactory background check,” and he has to sign off on that. Well, I just got a letter in the mail today and it says, “From Chief VanDeusen in the city of Gloversville. I am returning the request for a background check submitted by Joshua Malatino on 4/3/2015 to your office without processing it. This is due to it not being associated with any city of Gloversville application for employment, vendor services, or peddler’s permit. It is not the policy of the Gloversville Police Department to complete random background checks on individuals without accompanying an application.” Well, I didn’t realize that your chief of police needs a copy of my liability insurance to do a background check when his sole job is to do a background check. It’s just him doing this to me because a judge to a trial dismissed my charges, pretty much saying in his response that I should have never been arrested in the first place, that any instance where I came into Hollister was, you know, accidental. I was not out going and looking for him and, even if I was offering free ice cream, it’s free speech covered by the United States Constitution.

NASIR: Yeah. It sounds like this sheriff as what you’re saying is trying to be a little bit of a stickler with some of the formalities that maybe he wasn’t before and all of a sudden, because you’re the one who’s applying, he’s going to apply it to the letter of the law – or at least to the extreme, maybe.
JOSH: That’s the way I’m taking it. I’m permitted in another city and the chief has to do a background check. He doesn’t need anything else. The city clerk’s office takes care of the application part and insurance part and he does his background check and it literally takes them a couple of days. They called me back and told me, “You passed your background check. You just need to bring in the rest of your stuff,” and I do it. You know, liabilities insurance for, you know, for six months is $450 and $150 of it non-refundable. Is it worth it for me to go out and purchase all of this and then him deny me a background check or deny me a permit for the city? And then, what do I do? I have to file another Article 78 hearing and take them to Supreme Court? I mean, these things add up. It’s a lot of money. I mean, I have a lot of lawyer bills that I’m still paying off so, you know, one is enough. When is he going to realize that he has one job and he needs to stop taking advantage of his badge? It’s going too far.

MATT: Yeah, and I know, Josh, you said that today – or the day we’re recording this – you know, you just got a letter and so stuff can change between now and then. But I did want to ask you one question about what we had read before. There were details in there about some sort of agreement and it wasn’t really clear whether it was a written agreement or more of a handshake about a non-compete and it possibly became ineffective or it possibly became invalidated once you took over the business. Was there some sort of agreement in place that you’re aware of in terms of Mr. Ding-A-Ling not being able to compete or be in the same geographic area as you?
JOSH: My family and long-time friends and family members of the original owner of the Sno Kone Joe bought the business so I want to say back in 1998 and, yeah, that was part of the agreement that Mr. Ding-A-Ling and the original Sno Kone Joe owner had, and it was carried over with the new owners of the business that he would not put a Mr. Ding-A-Ling truck in the city or Fulton County – not just the city of Gloversville but in Fulton County, New York – that was part of the agreement and it was to be carried over. In turn the Mr. Ding-A-Ling, Brian Collis, wanted them to purchase ice cream through him which they elected not to do because he was trying to charge them double of what they could get it for from other providers. So, about ten years, eleven years after they had purchased the company from the original owner, he started sending his Mr. Ding-A-Ling trucks to Fulton County. But, yes, that was an agreement that he would not send an ice cream truck to this area.

NASIR: Do you know if that was in writing? Was that an agreement in writing and how did that get formalized?
JOSH: I don’t know if that was in writing. I don’t know if that was just a verbal. I can’t really commen to that.

NASIR: And so, what’s going on now? I mean, I assume your relationship with – you said Hollister, Hollister is the current owner of Mr. Ding-A-Ling?
JOSH: No, he was never the owner. Mr. Ding-A-Ling is owned by Brian Collis and he owns about sixty trucks and he leases them out. Here’s the funny story about this. Back when Hollister applied for his peddler’s permit and did his background check and my trial on March 12th of this year, we asked the chief of police if he was aware of Hollister’s background and he admitted he was. Holllister’s background included 18 misdemeanor arrests, five felony arrests, and at the time of giving Hollister his permit, he was aware that Hollister had five misdemeanor convictions and one violent felony conviction, and he still gave him a permit as a successful background check to vend ice cream in the city of Gloversville. I think it’s important for people to also understand that Hollister never went to the Gloversville Police Department to make a complaint about us as in my ex-girlfriend was in her vehicle and just unexpectedly ended up behind them. Neither one was vending ice cream and there was a Gloversville police officer on the side of the road and he rolled down his window and said to Hollister, “I see Sno Kone Joe is behind you. If you feel you have a problem, go down and speak to the chief of police.” Nine days that went by, Hollister never called or went down to the police department. The said officer called Hollister back and said, “You never came down. The chief is here. Would you like to come down and talk to him?” At that time, he went down and this was all testified to in the Supreme Court hearing back in 2013.
You know, the media, I’ve learned just from these experiences of making this national news that the media only reports what it wants to report. It doesn’t actually report the whole story. They’re going to report what they think is going to attract attention. That’s the problem, you know?

NASIR: Yeah. I mean, these media writers had a hay day with the puns with, you know, “one party freezing out the competition” and things like that, and that’s what the story is because obviously Sno Kone Joe and Mr. Ding-A-Ling are humorous names and, just to put that across the aisle in a court room sounds kind of interesting, but why don’t you talk about that? Your experience in the media from a small business owner’s perspective, any advice that you can give to business owners that are suddenly thrust in the limelight either in a negative way or sometimes even in a positive way?
JOSH: Well, I think the first thing is for people that do have their name go on the media to block it out. When I was first arrested, I didn’t read anything. I didn’t feed into it. I stayed quiet and I thought the most important thing was to not try my case in the media – to also understand that I’m going to have my day in court. I was called by almost every show in America to give a statement and I just felt it wasn’t worth it. I didn’t want to be trying my case in the media.

NASIR: Do you regret that? I mean, if you were able to get your word out, the story might have been a little different out there, no?
JOSH: I don’t regret it. I don’t regret it at all. I think to this day it was still a great decision but the problem is people. You have people that are going to believe what they hear in the media and they’re always making it as you’re guilty, just they think that the cops no matter what, you’re going to be guilty if you are arrested, and I think the most important thing that I can let these people know is that just because you’re charged with a crime doesn’t mean you’re guilty of that crime. I fought for two years. I’ve had to go through two lawyers because my first trial became a mistrial. We had three different judges and, in the end, I stuck with it. They were trying to offer me plead to disorderly conduct which is a violation – it’s not a crime – and I told them, “No, I did nothing wrong.” I stood up for myself and it was worth it in the end. We won. But, you know, the media just reports what they want and, once I got the decision that the judge had granted us our trial order of dismissal and dismissed charges, I decided to call the news outlet local and did some interviews locally with newspapers and things like that and I knew that the AP would pick it up which they did and at that time is when I wanted to see what these outlets were reporting on me. You know, what kind of bothered me a little bit was they still used my mug shot in their pictures when there’s so many other pictures of me. That kind of bothered me. And people not actually knowing the whole story so they still kind of portrayed it out, you know, some of these stories kind of read that made me feel like they were still reporting that I did something wrong even though I really didn’t. You know, it’s been a tough two years, you know, going places and just hearing people talk, “Oh, look at him, there’s the stalker.” You know, it’s put a lot of stress not only on myself but my child who’s 13 – who was 11 at the time – and was being picked on from her friends. I’d have to go pick her up from school. It ended my relationship with my ex. The whole stress level from this, you know, I mean, it was on Jay Leno, Howard Stern, David Letterman’s Top Ten, a question on Who Wants to Be A Millionaire? We were in talks with Pilgrim Studios in Hollywood about a reality TV show and things like that, you know? It’s put a lot of stress on me and I’m just happy that it got the right outcome, you know?

MATT: Of course, you know, we obviously did an episode on this a few weeks ago and that’s proving right there that it was pretty heavily portrayed in the media and, you know, I was looking yesterday to try to find more recent updates, I mean, it was pretty much all slanted against you as you’re saying. It’s unfortunate and we’re glad we were able to have you on and kind of tell your side of it because, you know, 95 percent of what’s out there is not putting you in the best light, I guess you could say.
JOSH: That’s true, you know, that’s very true. You know, as I’ve come to learn, the media outlet only puts it out there where they know they’re going to get views for people to read the story. You know, the actual story was not even close to what it actually was. You know, the stalking charge, everybody thinks we were following these people around. That never once happened – ever! You know, like I said, my harassment, I was going east and he was going west. I never turned around to follow him. We just continued on the route, the designed route that’s been followed – at that point – for 44 years. I was arrested for harassment for doing that and then my stalking charge was a one-time thing because I allegedly offered free ice cream, you know? It’s crazy. It’s crazy to actually think that I was arrested for that and it made no sense.

NASIR: Well, let me go on a little rant here because I think this scenario that you’re going through is so similar to, I mean, the worst thing is that there were criminal charges, okay? That unfortunately doesn’t happen as often but does happen. It just goes to show you how easy it is just to make the allegation and it’s even easier to make it in the civil court rather than a criminal court because in criminal court you need the police to cooperate and this is the unfortunate part for you is that you had a share that seems to be too quick to arrest on some baseless charges. Keep in mind from a business owner’s perspective, it’s very easy to file a lawsuit and make any allegations. Once the allegations are there, it’s publicized and you’ve pretty much already lost. And, if you’ve entered into litigation, there’s legal cost and your reputation, et cetera. And so, it’d kind of hard to get out of that. But when we found out last week or so that the judge dismissed it, it wasn’t surprising because, you know, when you see the charges, it’s like, “Okay. Even if true, what’s the crime here?” We were kind of having a light-hearted take on it because just imagine you following him and some child’s about to buy some ice cream to Mr. Ding-A-Ling, you’d give out free ice cream right next-door, that’s humorous but what’s wrong with that even if you did that? What’s the big deal? I think it’s great.
JOSH: Right, and I think it comes down to that. Here’s the way we look at things and with the Sno Kone Joe business, not only are the children coming up to the truck but you have adults that grew up in this area that grew up on this truck so they come and buy it, you know? They grew up on the homemade Italian ice, the fresh snow cones, the homemade cotton candy daily, so you still have them coming. I mean, another ice cream truck can go down that street ten minutes before us and we can still go down that street and still get the regular customers and do a good business. We don’t need to go out of our way to – what the media calls – “sleaze out our competition.” We don’t need to offer free ice cream from an ice cream truck to detour somebody else’s business. It’s nothing like that. It’s just it got to the point where it got a little bit too personal with the chief of police and, you know, my ex-girlfriend who owned the business at the time and myself asking questions and he does not like to be questioned. He is more like a dictator who it’s his way or no way. It went a little bit too far with the police department and I understand that not all police are corrupt and not all police officers are bad like the media is portraying all these officers being bad in the media, you know what I mean? What’s going on now, it’s not that way. But, you know, you do tend to have instances where they may take advantage of their badge or may take things too far and I feel, in my case, that happened, and it really affected me personally because of it. I mean, when you think of somebody as a stalker, that’s a pretty bad thing to be classified as, you know? It’s not a good thing for somebody to think of you as and I’ve had to live that for the past two years of people thinking it that way, you know? Wherever I go, I have people looking at me and then starting to talk about me. It really takes an effect on you and, mentally, it’s really drained me over the past two years and it’s not right, especially when I was not following anybody. That’s the part that [inaudible]. You know, I’m happy that we had a very intelligent judge who sat through the trial, took notes, and he case lawed everything and, in his decision, he referenced a bunch of different case laws and outright dismissed the charges. So, you know, I’m thankful for that.

NASIR: All right. Well, Joshua, we’re going to let you go here. Is there anything that you want to seek help with or plug from the fellow business owners that listen to this podcast?
JOSH: You know, the only other thing that I would say is that I am speaking with my original attorney who became a business about when we’re going to forward. I don’t think you’ve really heard the end of everything. There are other things that are going to happen and I’m pretty sure that it’s going to hit national news or the news again.

NASIR: Okay. Well, we’ll pay attention to it.

MATT: Yeah, definitely.

NASIR: I have a feeling this sheriff in that town is going to be put in the spotlight, in my opinion, because, you know, when there’s one allegation like this, there may be others as well.
JOSH: All right, good. Thanks for having me.

NASIR: Well, thanks for joining us and thank you, the listeners, for joining us as well.

MATT: Yeah, keep it sound and keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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