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At
a
Term of
County Court
held in and
for the
County
of Oswego a t Oswego New York
on the ~ day of March 2016
PRESENT:
HON.
DANIEL
R. KING
Acting County
Court
Jus t i ce
STATE OF NEW
YORK
COUNTY
COURT
OSWEGO
COUNTY
THE
PEOPLE
OF THE STATE OF NEW YORK
agains t
GARY
THIBODEAU
Defendant.
===========================================
CPL §440.10
Decision
KING,
J .
:
DECISION
AND ORDER
ORDER
Defendant
moved
th i s
Court
on
July
25
2014
to
vacate
his judgement of convict ion
entered
agains t him on
August
7
1995.
Defendant
argues
tha t his convict ion should be vacated
based on
the fac t tha t newly
discovered evidence
which could
not
have been discovered
dur ing t r i a l
would have
resu l t ed in a
favorable verdic t
for
defendant
CPL §440 . lO[ l ] [g ] ) ,
and tha t
because
the People fa i l ed
to provide Brady
mater ia l , the People
obta ined
defendan t s
convic t ion
through fraud and
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m isrepre
sen ta t ion
CPL §44
0.10 [1] [b]
and [h]) .
D
efendant
sp ec i f ica
l ly
a l l eges
th a
t
the
Peop
le s
fa i lu
re to
d i s c lose m a
ter ia l Brad
y
evidence,
inc
luding th
e f u
l l
scope
of infor
mat ion
concer
ning A l len
s
s ta tus
as
a
co
n f id en t i a l
info
rm ant and
the
fac t
th
a t he
r inform
ation w
as publ ic ly exposed
,
v io
la ted Brady
to such
an
exten
t tha t
d
efendant sho
uld be gran
ted
a new
t r i a l .
F
urther ,
the in t roduc t i
o n of
newly
d iscov
ered eviden
ce,
t ha t
being
sta tem ents
about
M s. A llen s
kidnapping
made
by
th ree
men
, James
Steen
,
R
oger Breckenr
idge and
Michael Boh
rer,
would
r e s
u l t in a b e
nef i c ia l
outcome
and, th
e re fo re ,
defend
ant should
be grante
d
a
ne w t r i
a l . Defenda
nt a lso
contends tha t
s ta te
ments
m
ade
by Stee
n ,
Bre
ckenridge
and Boh
rer c o n s t i
tu t es e
vidence of
th i rd -p a r t
y
c u lpa
b il i ty
w
hich
w a
rrants a new
t r i a l .
Procedu
ral
Hist
ory
Defendant
was
convic ted a f t e r
a jury
t r
i a l
in
·Oswego
C
ounty
of f i r s t
-d e g r e e kidnapping
in
1995. Therea
f te r ,
de
fendant
appe
aled h is
conv ic
t ion,
a
s well as two o
rders th a
t ,
fo llowin
g
a
hear ing ,
deni
ed
h is
motion t
o vacate t
ha t judg
ment pursu
ant to
CP
L 440 .10
1) b),
c), ( f ) ,
g) and
h). T
he A p
pella te D iv
ision,
Four
th Departm
ent, a
ff i rmed d efendan t
s
co
nvict ion
see Pe
ople v.
Thi
bodeau, 2
67 AD2d
952 [1999]
), leave t
o app
eal was de
nied 95
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NY2d 805
[2000]
and
denia l of habeas corpus was aff i rmed by
Thibodeau v. Portuondo, 486 F3d
61
[ ~ Cir . 2007].
As a resu l t
of
defendant s ins tan t motion, a
hearing
was held
dur ing the
months
of January, February,
March
and
Apri l
2015.
At the end of tes t imony in Apri l 2015,
both
pa r t i e s
requested an
adjournment pr ior
to the
c lose
of
the
hearing for
the
purpose of considering addi t ional discoverab le mater ia l and
potent ia l
witnesses.
n
November
2,
2015, t h i s
Court
i s sued
a
dec is ion
which
denied
add i t iona l
witnesses t e s t i fy i ng
and
evidence being presented
a t the hearing.
Both pa r t i e s
provided
t he i r
f ina l memorandums
of law to
t h i s Court for
cons idera t ion
before
the
Court i ssued
i t s
dec is ion
on the ul t imate
issues presented
a t the hearing.
Confident ia l
Informant: Brady
The Court wil l address the al leged Brady v io la t ion with
respect
to
the conf iden t i a l
informant
argument in
th ree
par t s .
Defendant
argues tha t he was not aware tha t
Ms
Allen was·
a
conf iden t i a l informant, and such evidence was Brady mater ia l
which the People
fa i l ed
to turn over.
Second, defendant
al leges
t ha t even i f Ms
Allen was not
used as a confident ia l
informant ,
the
People withheld
the f ac t
tha t
her
pedigree informat ion
with
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code name and f ingerp r in t s was dropped in
the
D W
parking
l o t
in
1992
and
those fac t s
were
Brady
mater ia l .
Last ly, defendant
argues
tha t the
People
committed a
Brady v io la t ion by not
d isc los ing
the
nar ra t ive repor ts
by the
of f i c e r s involved in
re t r i ev ing Ms
Allen ' s informat ion from D W or the index
card
which
displayed her pedigree informat ion.
Based
upon the
hearing. record, both defendant ' s
a t torney,
now
Judge Fahey, and defendant ' s brothe r ' s at torney,
now
Judge
Walsh,
knew
of
Heidi
Allen ' s
contac t
with
law
enforcement about
i l l e g a l drug ac t iv i t i e s
pr ior
to t r i a l .
I t should also be noted t ha t
the
cons tant
references
by
defendant
tha t
Ms
Allen was
a
confident ia l
informant
i s
misleading and inaccura te .
Deputy Michael Anderson s repor t
s ta rk ly cont radic ts defendant ' s a l l ega t ion and c l a r i f i e s Ms
Allen ' s s ta tus with law enforcement:
Mafter the meeting was
over,
pa t ro l
expressed no i n t e re s t in using Al len as
an informant
as
she had no t rue informat ion tha t could
be
useful
to us.
Allen
was
never
formal ly s igned up
as
a
confident ia l
informant
and
the
case was never worked but l e f t
inac t ive .
(Exhibi t 10) .
Moreover,
Ms
Allen ' s informat ion
to
law enforcement in
1991
per ta ined to
f r iends
of hers
from high
school
who
were using
drugs ,
and
none
of her informat ion impl ica ted defendant ,
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de fendan t s b ro the r , or Steen, Breckenr idge or Bohrer .
Furthermore, when Ms. Allen disappeared in Apri l o f
1994, Deputy
Chris topher
VanPatten who, along wi th Sgt . Roy
Lor t i e , had in te rv iewed Ms. Allen
in
1991 about the p o s s i b i l i t y
of be ing an informant ,
had no r eco l l e c t i o n
of
her being
used as
an informant u n t i l Sgt .
Lort ie
reminded
him
t ha t they met with
her
in 1991.
Judge
Fahey knew of Ms.
A l len s
a l leged CI s t a t u s
and
had
discussed it
with
Walsh
in
December
of
1994
HT p.
127
l i nes
7-13)
. Fahey
s t a t e d t h a t
the unde rshe r i f f
and
the
l i eu t en an t
of
the Oswego County S h e r i f f s Department ~ o n t e n d e d t h a t t he re was
no f i l e with
respec t
to
Heidi Allen being
an
informant
and
t ha t
whatever in fo rmat ion she
provided
was
not involving the
Thibodeausn HT
p. 127
l i n e s
18-20).
During
cross
examination,
Fahey
was
ques t ioned
about
other discoverab le documentation and hi s witness list
Q. Now
p r io r
to coming here
and
p r i o r to giving
your
a f f ida v i t s ,
had
you taken
any
s teps to
look
through
the
f i l e
t h a t you had
in
t h i s case
- -
A.
No.
Q.
- - s ince
the
t r i a l ?
A. I d o n t have
the
f i l e so
the
answer i s no.
Q.
So you ve never gone through
on your
own to
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determine whether
any
of these
we
re discuss ing here today
are
f i l e , i s t ha t
accurate?
A Yes, t h a t s accura te .
documents
t ha t
ac tu a l l y
in the
Q We re so le ly here - - y o u r e so le ly here
based
on
your
own memory,
i s t h a t
accurate?
A Yes. HT
p. 921 l ines 5-18)
Also,
Judge Fahey
t e s t i f i e d
in good f a i t h
t h a t he could
not r e c a l l c e r t a i n documents he rece ived , for example
the
Lor t i e
repor t , even though he
had
i n fac t
rece ived
the document p r i o r to
t r i a l and had prev ious ly marked it as defense
Exhibi t M in
an t i c ip a t i o n
of
using
it a t t r i a l :
Q. Now i you could
t u rn to the
bottom
of
page
nine and page t en on
Exhibi t
5 which you
have
in
f ron t of
you, i s t ha t
the Roy Lort ie repor t?
A. Yes.
Q
So
you
marked
a t
t r i a l
an
exh ib i t
t ha t
has
t en
pages t ha t on
the
bottom
of
page seven
discusses
the
- -
discusses what t ime Deputy Cur t i s showed up
on the scene , and
then a t
the
bottom
of page e igh t
discusses the height and weight of Heidi
Allen ,
and
on page
nine
and t en h ~ the Roy Lor t i e
r epor t . I s n t it qui t e poss ib l e t h a t Exhibi t M i s
the same exh ib i t t ha t you hold i n f ron t of you?
A I t
i s .
HT p. 924 l i nes 9-20)
Judge Walsh t e s t i f i e d
t ha t the re
was a voluminous
amount
o f
i n v es t i g a t i v e repor t s which he and Fahey main ta ined
in
t h e i r separa te
boxes
of
f i l e s .
With
respec t
to each c o u n s e l s
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organiza t ion of tha t
mater ia l ,
Walsh t e s t i f i e d
tha t
Fahey
had
brought him to h is a t t i c
before the
t r i a l and
Walsh saw the
condi t ion in
which
Fahey
kept
his f i l e s :
Q. Okay, and what
was the
condi t ion of his f i l e
when you saw t t ha t
day?
A
Well, t was
I
would say t was loosely
organized but t was t was so big
tha t
he
had
t
spread
out a l l over
his
a t t i c . I
mean
t was a
very la rge
room t ha t
t was in , and t was jus t -
there were
papers
everywhere. HT p.
1602
l ines
19-24)
Thus,
based
upon
Fahey
s
understandable
i nab i l i t y
to
recol lec t ce r ta in documents which
he
had in
his
possession twenty
years
ago, t
cannot be he ld
tha t the People committed a
Brady
v io la t ion based
upon the
fac t tha t Fahey
did
not
r eca l l having
received those documents pr ior
to
t e s t i fy i ng a t the hearing and
in sp i te of his admit tedly vague
memory
of
the
case.
Arguendo, even
i f t h i s
Court bel ieves tha t defendant
was not
w r ~
of Ms Al len s
in te rac t ion
with law enforcement
in
1991
or
tha t
her information had
been
dropped in
the
D W parking
l o t in
1992,
defendant
was
provided
th i s
mater ia l by
the
S h e r i f f s Department
and
the Dis t r ic t Attorney s Office .
The three repor ts defendant claimed
he
never received
were th ree nar ra t ives provided by deput ies
who
were involved in
the recovery of
Ms
Al len s information from the D W parking l o t . ·
7
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Those three repor ts were the
s tatement
of Deputy Michael
Montgomery,
(Exhibi t
8), the s tatement of
Deputy
VanPatten
(Exhibi t 9 and the
s tatement
of
Deputy Michael Anderson
(Exhibi t
10
Former ADA Dodd t e s t i f i e d on di rec t
examination
tha t ,
as a
r e su l t
of Fahey s argument in,
cour t
on December 8, 1994, and
the comments he made to the Post tandard a t tha t t ime, Dodd met
with Fahey
on December 14,
1994 and
turned
over, in
par t , the
th ree depu t ies
narra t ives
as well
as
severa l
b o x e ~
of
discovery:
From my
di rec t reco l l ec t ion f i r s t , tha t on
December
fourteen, 1994, Attorney Fahey,
Judge
Fahey subsequently ,
came to
the
Di s t r i c t
Attorney s
Office .
I met with
him
in person a t the
Di s t r i c t
Attorney s
Office .
At tha t meeting was
Invest iga tor
Terrence Whipple who ~ s tasked and
ass igned to oversee the e n t i r e ty of the S h e r i f f s
Department invest iga t ion
repor t . On
tha t
date
for
severa l
hours,
Attorney
Fahey was allowed to
inspect
a l l
of the
Oswego
County
S h e r i f f s
Department invest iga t ion repor t which was
contained in a room within the D is t r i c t Attorney s
Office , t was
made
up of documents, photographs,
audio tapes . On
tha t
pa r t i c u l a r day,
he was
provided a
copy of the
Oswego County
She r i f f s
Department invest iga t ion
repor t , a
complete exact
reproduct ion
and
copy o ~
a l l
of the mater ia l tha t
was in the Oswego County S h e r i f f s Department
invest iga t ion repor t
on December
fourteen,
1994.
The
exhib i t tha t you
handed me, s i r , Exhibi t
12,
was the
f i l e memorandum
tha t
I
prepared descr ib ing
the procedure . HT p.
1659
l i nes 8-25)
On
cross
examination, Dodd
s pe c i f i c a l l y
addressed
the
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t h ree
n a r r a t i v e s
as be ing
tu rned
over on December 14, 1994:
[Fahey] was provided . Ms. Bianco, again , on
December four teen th , 1994, the s ta tement of Deputy
Mike Montgomery, your
Exhibi t
8, he was
provided .
Your
Exhib i t
No.
9,
the
s ta tement
of
Deputy
VanPat ten,
he was
provided . I
d o n t
know i
t h e r e s
assoc ia ted
exh ib i t
number.
The s ta tement
of Michael
Anderson, I
be l ieve
it was
rece ived
December nine , 1994. (HT p. 1813 l i nes 5-10)
Not only did Dodd t e s t i f y to sp e c i f i c a l l y
turn ing
over
the t h ree
i n v es t i g a t i v e
repor t s , the People
in t roduced
Exhib i t
to
suppor t the
fac t
t h a t these
t h ree
repor t s were,
in
f ac t ,
turned over
in
December 1994. Exhibi t i s a photocopy
o f
VanPat ten s repor t , date stamped December 9, 1994, t h a t bears
Dodd
s
handwri t ten notes : MY
COPY HA
BRADY
CC
TOT
BOTH D
ATTN . Dodd t e s t i f i e d
what hi s
handwri t ten
notes re f l ec ted :
Q.
Showing
you again
Exhibi t
admi t ted , you were asked
some
some
of
them
are
going
to
be
a
. you wrote
some
th ings on the
exac t ly
did you
wri te?
A. In my hand, my copy, H-A.
which i s now
quest ions now
and
b i t
r e pe t i t i ve
but
top
of t ha t .
What
Q. Let
me
j u s t
s top
you
the re . H-A
s tands
for
what?
A.
Heidi
Allen .
Q.
Okay,
con t inue .
What e l s e
did
you
wri te?
A.
Brady,
C-C, carbon
copy,
T-0-T, turned over to
both
defense
a t to rneys .
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Q. Now you wrote
T-0-T,
t h a t
obvious ly
anagram,
not
an anagram,
i n i t i a l s
I
guess .
had
not
tu rned t over ,
would
t he re have
d i f f e r e n t n o t a t i o n on t h e re
based
on what
with documents?
i s an
I f you
been a
you
do
A. Well,
t
was
tu rned
over .
I - - perhaps yes ,
but
I
- -
t h i s
was again
a work
product
so t h a t I knew
what t i s t h a t happened with
t h ese documents .
Q. Okay, and
b es id es
t ha t , t h e r e s othe r w r i t i n g
on t h e re?
A. Yes. n page one of rece ived QQQ in my hand
t h e r e s a high l igh ted in green ink and /or b lue ink
and /or pink
ink
ce r t a in
por t ions
o f
Deputy
VanPat ten s
r ep o r t
which was
rece ived 12/9,
1994,
page two, the same t h i n g as
to Deputy
Michael
Anderson in e i t h e r pink, blue or green.
I
put t
on these work cop ies ,
and
as
to
the t h i r d
por t ion
of the e x h i b i t , rece ived in e i t h e r
blue
o r green
ink
from Michael Montgomery.
Q. And those were th ings t h a t
you
- - you had noted
t h a t were
important
to you o t h e r
than
tu rn ing t h i s
over .
A. Yes.
Q.
Okay? And when you when you wrote Brady,
why
did you wri te t h a t on there?
A.
Because p o t e n t i a l l y
the con ten t o f t h e t h ree
documents con ta ined in format ion o r evidence
p ro p e r ty t ha t may t end to be excu lpa to ry , Brady.
Q. Was t h e re o t h e r
the
course
o f
t h i s case t ha t
mat e r i a l t h a t
you had
noted in
o f rev iewing the documents in
you
perce ived to be
p o ten t i a l
Brady
were
tu rned
over?
n
nature
t ha t
A. Yes.
Q. Now t h a t s - - you sa id t h a t was r ece iv ed
by
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your
off i ce on December ninth , the day a f t e r
tha t ,
the discuss ion in cour t . Do you have
any
idea or
any reco l l ec t ion whether or
not
tha t
would have
been in boxes tha t were turned over
to
Judge Fahey
on December fourteenth?
A In fac t , those documents were turned
over
personal ly by myself to Attorney Fahey on December
fourteenth, 1994. They were
contained within the
Oswego County
S h e r i f f s Department invest iga t ion
report . HT pp.
1668-1670)
Dodd
also
t e s t i f i e d tha t before
defendant s t r i a l began
on
May
22, 1995, he sent
a
l e t t e r dated
May
17, 1995 to
both
at torneys
and
copied
the
t r i a l
cour t
on t h i s
correspondence
(Exhibi t
l lA).
This
May
17, 1995
l e t t e r
re ferenced the mater ia l
which
Dodd
had r ecen t ly received which was
Inv.
Nicholas
K l e i s t s
May 16,
1995 nar ra t ive ,
Ms
Al len s . index
card
and
Inv.
Van Pat ten s notes tha t were re t r ieved
from
the
D W
in 1992
(Exhibi t l lA) .
This
Court
has .no
reason to
quest ion
tha t t h i s
informat ion was
not
provided to both counsel and the t r i a l cour t
in l igh t of the fac t tha t Dodd s tes t imony underscores the
May
23, 1995
date
stamp
a t tached
to
the May 17,
1995
l e t t e r
and which
was also located in the t r i a l
cour t s
or ig ina l f i l e (See Exhibi t
l lA) .
Per
defendant s
request
to
have
t h i s
Court review
the
t r i a l
cour t s or ig ina l
f i l e ,
th i s Court
reviewed
the or ig ina l May
17,
1995 l e t t e r which was date stamp received by Jef ferson County
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Court on May 23,
1995.
Despite the
fac t
Bianco t e s t i f i e d t ha t she had not seen
the three i nves t iga t ive repor ts un t i l
2014,
the Court c redi t s
Dodd
s thorough tes t imony
tha t
he did, in fac t , provide
these
three repor ts to
Fahey
in
December
1994. Moreover, t would not
make
sense t ha t the People
would not
turn
over
these
r epor t s
sh o r t l y a f t e r they
received
them
in l igh t of the fac t the
th ree
of f i c e r s were i n s t ruc ted
by
Lt. Dean Goodsel l to dra f t
these
nar ra t ives almost three years a f t e r the information
was dropped.
I t does not make
sense
t ha t Lt. Goodsel l
would
i n s t ruc t these
of f ice r s
to make wri t t en
s tatements i f the s tatements
u l t imate ly
were not to be
turned
over.
The fac t tha t the
May 16,
1995
document,
which was
Inv.
K l e i s t s report , was
stamped received by
the
D is t r i c t Attorney s
of f ice
on
tha t same
date ,
and
the
fac t
t ha t
S h e r i f f s
Off ice da te
stamps
tha t
same repor t a week l a t e r
on
May 23, 1995,
corrobora tes Inv.
Whipple s
tes t imony HT pp.
1503-1504)
Whipple t e s t i f i e d
tha t
Inv. Herbert Yerdon and Kle is t were tasked
with t ry ing
to
f ind the documentat ion on
Ms
Allen
and
once they
found i t ,
they were d i rec ted
to
br ing
t immediately · to the
D is t r i c t Attorney s Office so tha t t
could be
tu rned over.
Further , despi te the fac t Bianco t e s t i f i e d tha t she had
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not
seen
the
May 1995 l e t t e r and the
a t t ached index
ca rd and
handwri t ten no tes
u n t i l 2014,
it i s c l ea r , upon a review of the
trial
c o u r t s
f i l e , t ha t the t r i a l
co u r t
rece ived t h i s same
l e t t e r sen t to defense counsel
on
May 23,
1995. I t
i s co n t r a ry
t o log ic to
argue
t h a t the
t r i a l cour t rece ived
t h i s
l e t t e r on
May 23,
1995 but
t ha t ne i the r
trial
counse l
r ece iv ed it wi thout
the a t t ached documenta t ion.
t i s
important
to note
t h a t dur ing Dodd
s
t e s t imony ,
he
r e fe ren ced
the
Peo p le s
ongoing duty to tu rn
over
discoverab le
mate r i a l s .
During cross examinat ion,
he
was ques t ioned about
tu rn ing over Ms. A l l e n s in fo rmat ion card aga in under a separa te
l e t t e r
on June
5, 1995.
A fte r
a
rev iew
o f the trial
c o u r t s
f i l e , desp i t e ques t ions from defense counse l t h a t the
June 5,
1995
l e t t e r was
not dra f t ed
on l e t t e r h ead
(Exhibi t SS)
in t imat ing
t h a t
sa id
l e t t e r and
re ferenced
mate r i a l s
were
never
sen t ,
the trial
c o u r t s f i l e conta ined
t h a t
June
th
l e t t e r on
l e t t e r h ead .
Again,
t h i s
l e t t e r underscores Dodd
s
t e s t imony
. t ha t
Exhib i t
SS
was on
a d ra f t yel low
piece o f paper and not on
l e t t e r h ead
because he wanted to save money
HT
p.
1690 l i n e s
14-
16) .
The
fac t
t ha t the
l e t t e r (Exhibi t SS) i s not p r in t ed on
l e t t e r h ead shows
t h a t
Dodd was t r u t h fu l because
hi s working
copy
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was
in
fac t ,
on a pla in piece of paper.
I t should
be
noted t ha t
the
t r i a l
cour t ' s
f i l e has
l e t t e r s from
Dodd
on both
l e t t e rhead
and
pla in
yellow
pieces of
paper, which lends to his tes t imony
t ha t ,
s ince so much
correspondence was
being
sent in
th i s
case, he was t ry ing to save
money
in not exhaust ing l e t te rhead .
Ult imately ,
t h i s Court
cannot begin to
specula te
as to
why
appe l la te counsel
Bianco
only
found a copy of the
Kle is t
repor t in Richard Thibodeau 's f i l e
and
did
not
f ind the May
17,
1995 l e t t e r or Kle i s t ' s repor t in defendant ' s f i l e .
However
Bianco t e s t i f i e d tha t
she
did
not
rece ive
defendant ' s f i l e
un t i l
sometime
a f t e r
the not ice of
appeal
was
f i l ed but
tha t she
cou ldn ' t be ce r t a in
on
tha t , given
the
fac t t ha t she and
Fahey
were kind of shar ing the boxes because he
was
st ll involved in
the
case
a t tha t
point
HT pp.
69-70
l i nes
24-25,
1-3) .
I t
i s
en t i r e l y
poss ib le
tha t
with
the
sharing of f i l e s and uncer ta in ty
of da tes tha t the May
17,
1995 l e t t e r and the r epor t
were
misplaced.
Final ly , even
i f th i s Court
were to
take the
pos i t ion
tha t ne i the r
counsel
received the
Montgomery Report
dated
December
8,
1994 and date
stamped by
the Oswego County Sher i f f on
December 9, 1994 (Exhibi t 8),
and
the
VanPatten Report
(Exhibi t
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9
or the An
derson Rep
ort Exh
ibit 10)
, both o
f which w
ere d te
s
tamped y t
he O
swego Cou
nty Sh e r if f on
Decembe
r 9,
1994, the
fac t th a t Ms
. A lle n
s
i
nformat ion
was droppe
d i
n
pa
rking
l o t over
tw
o years p
r ior
to her
disappeara
nce i s
too remote
and too
specu la
t ive to
have
been
a
llowed a t
t r i a l .
D
efendant
p ara l l e l s
his
a
rgument
an
d
the
People s
co
nduct
to the
fac ts
presen ted i
n
People
v. W r
ight, 86
NY2d 591
1995)
.
In Wright,
sup
ra , the
Co
urt
of
A
ppeals
overturn
ed a
d ef
endant s
convic
t ion a f
t e r hold
ing t ha t
the pro
secut ion
withheld B
rady m
ater ia l concern
ing an
assau l t
vic t im s
s t a tu
s as
a
p o l ice info
rmant .
In Wright,
a f t e r the
male
vic t im
met the
female
defendant
in
a
bar , they
went
to defendan
t s apa
rtment.
Despi te
conf l i
c t ing
s to
r i e s ab
out
the reasons
for g
oing
to
de
fendant s
apartment, defendant
s truck
the v ic t im
with
a
knife
t ha t
re su l ted
in a lace ra
t ed penis .
Defe
ndant
cla
imed
she
in ju red the v ic
t im
in se l f
defense
be
cause
he
t r i ed to rape
her . Du
ring p a
r t of the
P eo
ple s cas
e, the Peopl
e
asser ted th a t
the ma
le
v ic
t im fa i l e
d
to
seek medic
al
t rea tme
nt
because
he
bel iev ed
the
pol ice would
not
help
him once
they b
ecame
aware of
his crim
in l h is
to ry .
H
owever, the Peop
le did
n
ot
d isc lose
t
h a t the
male v ic
t im was
an
act ive
conf iden
t ial inform
ant and
tha t ,
to
t
he c
ontrary , the
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vict im
worked close
ly w ith
the
pol ice .
The Court r
easoned t ha t
i f th
e ju
ry had le
arned tha t
the
vic t im
had a w
orking
re la t ions
h ip w
ith the
pol ic
e , h is
e f
for t s
to
circumv
ent
po l ice
discovery
mig
ht
have
appeare
d
even
m
ore suspici
ous
and
overturn
ed defe
ndant ' s
convict io
n
W
right,
supra
a t
598).
H
owever,
the fac t
s in defen
dant 's
case are
more
ap p
licab le t
o
those
pres
en ted in People
v. Ga
mble, 72 A
D3d 544
[P ' De
pt. 2010], a
ffd . 8 NY d
386
[2012].
In Gam
ble, the
A pp
ellate
D ivision
hel
d
tha t
the
t r i a l cour t :
proper ly
exerc i se
d i t s d is
c re t ion
in prec l
ud ing
backgrou
nd info
rm ation
about
one of th
e
vict im
s,
offered
by
defendant
to
show
tha t unkn
own
persons
may have
had
a m
otive
to k i l l
him. For
the
purpose
of es ta b li
sh ing , am o n
g other
th ings
,
th a
t
defendant
had a moti
ve t
o k i l l the vict
ims , th
e
People
h
ad
i
n t roduced
evidence
of a
lengthy
ongo
ing dispu t
e
between defe
ndant an
d
t
he
v
ict ims,
who l ive
d in
the
ap
artment
abov
e his . Defendan
t
s
ought
to
es tabl is
h tha t
o
ne
of
the
v ic ti
m s was a
drug
d ea ler ,
had
offered
to
become
a con f iden tial
inform
ant, and
had been
beaten by u
n ident i f ie
d
perso
ns approxim a
tely a
year and a ha l f
before th
e
homicid
e. The
t r i a l court
properly conclu
ded t ha t
th
is evidence
was unduly
spec
ula t ive ,
and
~ h t
i t s
pre jud ic i
a l e f fe c
t
outw
eighed
i t s proba
t ive
value
see People
v.
Primo, 96 N
Y2d 351
[2001])
.
Defen
dant
acknowled
ges th a t t h i s
evidenc
e did no
t
po
int
to the
c
u lp abi l i ty
of
any
par t ic
u la r th
i rd-
par ty ,
but
ar
gues th a
t t
was re lev
ant to rebu t
th
a t por
t ion of the
Peop le
's case th a
t
l in
ked
defendant
to
the
crime
by
w ay
of
m otive.
Although
the
Peop le 's
evid
ence
of motive c
lose ly co
nnected
defendant ,
in
pa r t i c u la r
, to the crime,
t
did not
op
en
the do
or
to genera l
ized , spec
ula t ive evid
ence
of
poss ib le
motives
by
un iden t
i f iab le p
ersons .
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More
over,
apar t
from defendan
t 's tes
t imony,
the re
was no evide
nce sug
gesting th a
t someone
other than
defen
dant was
th
e
k
i l le r (Gamble
, sup
ra
a t
545).
Defend
ant s
arg
ument t ha t ,
i f
defendant
had known
of
Ms
Al len
' s conf iden t i
a l informant
s
ta tus
or
th a
t h
er inform a
tion
had been dr
opped
in the
D
W
l o t over two
years p r ior
to her
d
isappearan
ce
th
a t
s
uch in
form ation
could ha
ve b
een used
a t
t r
i a l , i s
without m
erit .
I t i s ce r t
a in ly
poss i
b le
t
ha t Judge
Fa
hey was well
awa
re of the con
tents in
M
ontgomery
s, V anPa
tten s
an
d
And
erson s
r epor t
s
an
d conscio
usly chos
e not
to use them
because
the
r epor
ts would
have
b o
ls te red the
testim
ony of
M
cDonald
and Ba
ldasaro tha t
defe
ndant ' s kidnapping
of Ms
Allen
was dru
g-re la ted .
Jus t
as Bianco
t e s t i f i e
d
a t
th
e hear ing t ha t
she kne
w
Ms A
llen ' s s ta tu
s as a po te n
t ia l in
form ant
was impor
tant , y
e t
Bianco chose
to d isregard
i t
and
not
ra ise
t
as
an
argument
on
appeal , t
h i s Court canno
t
draw the
conclu
sion
t
ha t Fahe
y did
not
ra i s
e th is
conf iden t
ial in forman
t argument a t
t r i
a l
b
ecause
the
Peopl
e never
provid
ed the dro
pped informat io
n
to him.
F i
rs t ,
Fahey t e s t i f i e
d
t ha t
he
was aware
Ms A
llen was
not
an
informant
,
so
any theo
ry
th a
t someo
ne o the
r
t
han d
efendant
kidnapped
her
becau
se she
was a
ra t
, wouid h
ave been
too
s
pecula t iv
e to
a
rgue
without any
corrobo
r t ing ev
idence.
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Second
,
in l i gh
t of
the
f ac t th a t M
s A ll
en ' s
inform
ation card had
been,
to
use
defen
dant 's words,
pub
l ic ized
more
t
han
two
years
pr io r
to
he
r
disappeara
nce, t i s ha
rd
to
imagine how
defendan
t co
uld
h
ave argued
and
admit in to
evid
ence
th a
t som
e unknown
drug
dealer had p
lanned for two
ye
ars to abduc
t
and k i l l Ms
Alle
n
i
n broad day
light w
ith
w it
nesses ar
ound.
Kri st ine D
uell t
e s t i f i e d tha t
a
f t e r she
found the
inf
ormat ion
in the
park
ing lo t , sh
e contacted
l
aw enforceme
nt.
Duell c
laims the
o
nly person she
spoke t abo
ut th is
inc ide
n t
was
her
mother an
d
t ha t
t
hey
d
ecided. the
y would
not mak
e t known
to
anyone e l
se HT p.
1878
l i nes 2
3-24). D ue
ll 's
moth
er, Ro
berta
W
ills,
t e s t i f i e d th
a t she did spe
ak
to her d
aughter b
ut
th a t
W
ills
never
s
poke
to anyone about
what her daug
hter found.
Thus,
based
upon the
eviden
ce
a t th
e hearing,
th
ere i s no
evidence
t
ha t
e i t he r
Duell
or
W ills
disclo sed
what
information
had
been
found
in
1
992
to o the r
s in the
community
.
Contrary
t F
ahey' s
tes t imony
tha t
had
he
kno
wn Ms
Al len 's
conf iden
t ial info
rmation had be
en l e f t
in the
parking
l o t
of t
he D W more
than two
year
s
p r
io r
to
h
er
disappea
rance, he
would ha
ve argued t ha t
the
re were o th
ers wit
h
a mo
tive
to harm
her,
in keeping
wi
th
the
holding in
G
amble,
s
upra , t h i s Court
holds
th a t th
is evi
dence would
be unduly
specu
la t ive , and th
a t
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i t s
pre judic ia l e f fec t would ve outweighed
i t s
proba t ive value.
This Court f inds
tha t , as Ms
Allen
was
not
a
conf iden t i a l
informant
for the Oswego County S h e r i f f s Office ,
there
was
no Brady mater ia l
to
turn over. However,
even i f the
fac t
tha t Ms
Allen had
provided
l imi ted informa.tion to law
enforcement about
drug
ac t i v i t y in 1991, and the People t r ea ted
tha t
aspect
as
Brady mater ia l ,
tha t informat ion,
both
the
r epor t s
from Deputies
Van
Pat ten,
Montgomery
and
Anderson
and the card
found a t
the
D W together
with
Inv.
K l e i s t s
repor t , were
turned
over to defendant
on December 14,
respect ive ly .
1994
and
in May
1995,
Final ly , even
i f the Court bel ieved tha t defendant
never
received
any
informat ion about Ms
Al len s conf iden t ia l
informant s ta tus or the invest iga t ive
repor ts ,
the informat ion
about
her card being
dropped
in
the
D W
parking
l o t
in
January
of
1992 i s too remote, too specula t ive and
pre judic ia l
for
a
t r i a l
cour t to allow in to evidence.
Uocraf t s Statement: Brady
Defendant makes a t angent ia l Brady argument
tha t
the
People fa i l ed
to d isc lose
Darlene Upc raf t s
s igh t ing
of a white
rus ty van parked
in f ront of the D W the morning
Allen
was
abducted.
I t
i s c lea r from the informat ion Upcraft provided to
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Inves t iga to r Dale Yager
on
Apri l 7,
1994,
tha t
when Upcraft
drove
to
church a t 6:35
AM
on Easte r morning, she did not ind ica te tha t
she saw
a
white rus ty van in
the
D W parking
l o t
(Exhibi t 19)
Then, when Upcraft
drove
by
the
s to re
on
her
way home
from church
around 7:31
AM Upcraf t
d i dn t remember
seeing anything to repor t
(Exhibi t 19 and
HT p.
189 l i nes 23-25).
At
tha t t ime, arguably, Ms
Allen
was st ll in the
s to re
as her l a s t t r ansac t ion was
a t
approximately 7:42 AM.
Thus,
defendant s argument
t ha t
the People fa i l ed
to
the
d isc lose
the
s igh t ing of
another
van d i f f e r e n t than defendant s on
the
morning of Ms Al len s disappearance i s
moot
because a t
the
t ime
Upcraf t t e s t i f i e d
tha t
she saw
the
white rus ty van
on
her way to
church,
Ms Allen
would
have been
ins ide
the s tore for a t l ea s t
another hour.
Further ,
as defense counsel
was
provided
with
Off icer
Yager s
r epor t (Exhibi t 19), defense could
have
independently
followed
up
with
Upcraft about
what
she repor ted
to law
enforcement
Conclusion: Brady
Defendant received the documentat ion he requested a f t e r
the
People disc losed Ms
A l len s
contact
with law enforcement as
a potent ia l confident ia l
informant before t r i a l and he
had a
20
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re
asonab le
oppor tuni
ty to
use i
t as
par t of
h is defense (com
pare
Peoole
v.
San
chez,
21 NY3d
216, 225
[20
13]). Despite
defenda
nt s
arguments
pertainin
g
to
cer ta
in
documenta
tion and
no
t having
receive
d it bef
ore t r
i a l ,
th i
s Court
f in
ds
t
ha t the Peo
ple d
id
no
t
comm
it a
Brady v io
la t ion .
Arguendo
,
ev
en i f def
endant
had moved
to vac
ate his
jud
gment
of con
vict ion under th
e argumen
t th a t
these
repor ts
and
in
dex cards co
nst i tu ted n
ewly discove
red e
vidence,
defendan
t
i s
not e n t i t le
d to
r e l
i e f on t h i s
sp e
c i f ic chal l
enge . The h
earing
record de
monstra tes
th
a t t h is
mater ia
l was d isco
verable and,
more
importan
tly, tha t
defendan
t did
have i
t in
his posse
ss ion
a t
the
t ime of
t r i a
l . There
fore, the
evidenc
e
doe
s n
ot
sa t
i s fy the
requirem e
nt t ha t it
was 'd
i scovered s i
nce the
entry of a judgm
ent
b
ased upon a ve
rd ic t of g u
i l ty a f t e r
t r i a l C
PL 440.
10 [l] [g];
see
a lso
People v.
Singleton,
1 AD3d
1020, 1021,
lv .
denied
1
N
Y3d 580
) (People
v.
Backus, 129 AD
3d 1
621, 1625 [4
th Dept.
2015]
[ in t
e rna l c i t a t i
o n s
omi t ted
.
As such
, b
ased upon the
evid
ence presen te
d
a t
the
hearin
g ,
th
is Court
f ind
s
t
ha t the
Sta t
e did
not obta in
defendan
t s conv ic t
ion th
rough frau
d
a
nd m isrep
resenta t ion
s nor
d i
d
i
t f
a i l to d
isc lose c r i t i c a l
Brady
mate
rial whic
h
wou
ld
w arrant th is Co
urt
to vacate def
endan t s judg
ment
of conv
ict ion
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pursuant
to
PL
§§4
40.10(1)
(b) and
(h) . Accordin
gly, defe
ndant s
motion i s
DENIED
N WLY
DIS OVER
ED
EVIDE
N E
D
efendant pre
sented
evidence
whic
h
h
e
arg
ued
suppo
rted
h i s i n i
t i a l
asse r t ion
t ha t
Steen,
B
reckenridg
e and
Bohrer
kidn
apped Ms
Allen.
Howe
ver, throu
ghout the hearing
, there
has
been no
eviden
ce l ink in
g
the
t
h ree of them t
ogethe r pr io r
t
o
Ms
A llen
s disappea
rance
or on th
e
mor
ning
the reo f .
T
hen, defend
ant s t
heory turn
ed to Steen kid
napping
Ms
Allen ,
with an
other
u n ident i f i
ed
p
erson in S te
en s v
an, bas
ed
upon
an over twenty
yea
r old a llege
d i de n t i f i
c a t i on
of Steen
by
W
illiam
Pierce . T
he C
ourt w ill
a
ddress
Pie r
ce s
testim ony
fur th
e r in t h i s
dec is ion .
Final ly
, defen
dant
foc
used
the
m a
jori ty
of h i
s argumen
t
on
plac ing
Bohrer as
the suspec t
most
respons ib le
for
Ms
A llen s
abdu
ction ba
sed
u
pon
his absurd
be
havior
a f t
e r her
disapp e
arance,
unsuppor te
d emotiona
l at tachm
ent
to
the
kidna
pping
i nve st ig
a t ion
and
cri
m inal
pas t .
Pursuant to PL
440.10(1)
(g), a cour t
may vac
ate a
judgm
ent of convict i
on on
the ground
th a t [n
] ew
evidence
has
been
discovered
s in
ce
the ent ry
of a judg
ment based
upon a
verd ict
of g u i l ty a f
te r t r i a
l , wh
ich could n
ot have been
produc
ed
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by the defendant a t the
t r i a l even with due di l igence
on his
par t
and which
i s
of
such
charac er
as
to
crea te
a probab i l i ty
tha t
had such evidence
been
received
a t the t r i a l
the verdic t would
have been more favorable to the defendant; provided t ha t
a
motion
based upon
such
ground must be made
with
due di l igence a f t e r the
discovery of
such
al leged
new
evidence . '
It
i s
well
se t t l ed
tha t
on a
motion
to
vacate
a judgment of
convict ion
based
on
newly
discovered
evidence, the movant must
es tab l i sh ,
i n t e r
a l ia ,
tha t the re i s newly discovered evidence:
(1)
which wi l l probably
change the
resu l t
i f
a new
t r i a l i s granted;
2) which
was
discovered s ince the t r i a l ;
3)
which
could not
have
been
discovered pr ior
to
t r i a l ;
4)
which i s
mater ia l ; 5)
which i s
not cumulat ive;
and
[ 6)
which does
not merely impeach
or
cont radic t the record evidence ' (People v. Smith, 108
AD3d
1075,
1076
[2013],
lv .
denied
21 NY3d
1077 [2013]
[ in t e rna l
quota t ion
marks
omit ted] ; see People v. Salemi,
309
Y
208, 215-216 [1955],
cer t . denied 350 US 950
[1956]).
Defendant has the burden of
es tab l i sh ing 'by
a
preponderance of the
evidence
every fac t
e s s e n t i a l to suppor t the motion' CPL
§440.30[6])
(Backus,
supra
a t 1623).
Defendant ' s theory
i s
based upon a
witness
who
defendant did
not put
on the
witness
s tand a t
t r i a l .
While both
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pa r t i e s consented to Tonya Pr ie s t ' s s tatement being allowed in to
evidence ,
the Court considered
P r i e s t ' s
s tatement
and addressed
i t s
meri t
in the Cour t ' s Apri l
6,
2015
decis ion.
Again, P r i e s t ' s
c red i b i l i t y i s cal led in to ques t ion
because
she
says Steen
to ld
her in
2006 tha t he,
Breckenridge and
Bohrer
abducted Heidi
Allen.
This information
i s ques t ionable on
many
leve ls .
Both Steen and
Bohrer
t e s t i f i e d tha t
they
never
knew
one another , and
both
Bohrer
and Breckenridge
s ta ted tha t
they only met each other once.
Despite
the fac t Pr ie s t ' s
s tatement was considered
hearsay
by t h i s Court
in
i t s
previous
dec is ion ,
in
a l l fa i rness
to defendant , the
Court considered th i s s tatement
with respect to
the th i rd-pa r ty cu lpabi l i ty evidence,
yet
f inds tha t t st ll
lacks
any
meri t .
The
crux
of
Pr ie s t ' s
s tatement
i s
tha t
Steen
to ld
her
in 2006 tha t he, Breckenridge and
Bohrer
took turns bea t ing
Ms
Allen
to death,
cut up
her
body and then hid her under
f loorboards
in a
cabin in
the woods off
Rice
Road in
Mexico
(Exhibi t 35) .
Pr ies t
claimed
Steen
sa id they burned
Ms
Al len ' s
clo thes
in
a wood
s tove in the same cabin. Steen described the
cabin as being deep in the woods, a t the edge of
a
clear ing , and
a
person would have to
cross
over
a
se t of
ra i l road
t racks to get
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t o sa id
cab in .
With
respec t to the t h i rd -pa r ty
c u l p a b i l i t y evidence,
t h i s Court , upon consent from both p a r t i e s , al lowed hearsay
tes t imony,
which w i l l be
discussed
l a t e r
in
t h i s
dec is ion ,
from
seve ra l witnesses
about the
pos s ib i l i t y t ha t James Steen , Roger
Breckenr idge
and Michael Bohrer kidnapped and
k i l l e d Heidi
Allen .
In
order to
address
the
ad mis s ib i l i t y
of
these
s ta tements , the Court has to review them as to
whether
the
ind i victual
s ta tements are
admiss ib le as hearsay excep t ions and
then under the more generous t h i rd -pa r ty cu lpab i l i ty s tandard .
Regardless of the fac t
t h a t
each of the a l l eged
suspec t s gave
tes t imony
as
defendan t s
witnesses and were
cross
examined,
other
r e l a t i v e s ,
f r iends
and acquain tances t e s t i f i e d to
d i f f e r e n t
purported admissions those three men
had made
over the
decades wi th
respec t to
Ms
A l len s
disappearance .
However,
desp i t e the ple thora of in fo rmat ion
provided by
a mul t i tude o f
sources
who claimed to
be
close to these three
suspec t s , none
of
t he i r
tes t imony can be . co r robora ted
or deemed
cred ib le .
'Whi le evidence tending
to
show t ha t
another
pa r ty
might have committed
the cr ime would
be
admiss ib le , before
such
tes t imony can be rece ived
the re must be
such proof
of connect ion '
wi th it such a t r a i n of
f ac t s
or
circumstances as t end c l e a r l y
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to
p o i n t out someone bes ides the pr i sone r as the
g u i l t y
p a r t y '
(see Green f i e ld v. People , 85 Y 75, 89 [1881]) . Remote a c t s ,
d isconnec ted and ou t s ide of the cr ime
i t s e l f ,
cannot be
s e p a r a t e l y proved ' to show
t h a t someone
o the r
t han
t h e
defendan t
commit ted
t he cr ime
(see
i d . )
(People
v; Schulz ,
4 NY3d
521,
529
[2005]) .
'Be fo re pe rm i t t ing ev idence
t h a t
ano ther i n d i v i d u a l
commit ted
t he cr ime
fo r
which
a defendant
i s on
trial
t he cour t
i s
r equ i r ed to
de te rmine
if
the ev idence i s r e l e v a n t
and
proba t ive o f p f ac t a t i s sue in the case , and f u r t h e r
t h a t
it i s
not based upon susp ic ion o r
su rmise ' (People
v.
Oxley,
64 AD3d
1078, 1081 [2009]; see
People
v. Primo, 96 NY2d 351, 356-357
[2001]) .
Then,
the cour t must balance the proba t ive
value
o f the
evidence a g a i n s t the p r e j u d i c i a l e f f e c t
to t he
People
and may,
in
an
e x e r c i s e
o f
its
d isc re t ion ,
exclude
r e l evan t
evidence
t h a t
w i l l
cause
undue pre jud ice , delay
the
trial o r confuse o r
mis lead
the
ju ry ' (Oxley, supra a t
1081;
see Primo, supra a t
356-357) Although
a
trial
cour t has ' b road d i sc r e t i o n
to keep
the proceed ings with in manageable l i m i t s and
to
cu r ta i l ·
exp lo ra t ion o f c o l l a t e r a l m at te r s ' (People v. Hudy, 7 3 NY2d
40,
56 [1988]; see
Holmes v. South
Caro l ina , 547
US 319
[2006]) ,
' t h e
trial
c o u r t ' s d i sc r e t i o n in
t h i s area i s
c i rcumscr ibed by
the
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defendant s
cons t i tu t iona l
r igh t s to present
a
defense and
conf ront
his
accusers
(Hudy,
supra a t 57;
see
Chambers v.
Miss iss ippi , 410 US
284 [1973];
People v. Robinson, 89
NY2d 648
[1997]; People v.
James,
242 AD2d 8 ~ [1997] ) (People v.
Thompson, 111 AD3d 56, 64 [ nd
Dept.
2013]
[ in t e rna l
c i t a t i ons
omit ted] ) .
Defendant
presen ted severa l witnesses
who
t e s t i f i e d to
s ta tements
made
to them a f t e r
Ms
Al len s disappearance
these
past twenty years . However, se t t ing as ide the hearsay s tatements
for the moment
and
address ing
them
under the t h i rd -pa r ty
c u lpa b i l i t y standard,
none of
these
s tatements
were
corrobora ted
by
independent evidence.
In examining
with
spec i f i c i ty
Steen s
a l leged
s tatements to
Pr ies t ,
Chief Inves t iga to r
Haumann, from
the
Federa l
Publ ic
Defender ' s
Office ,
t e s t i f i ed
a t
length
the
extent
of the
two
cabins
he
located and searched where
Pr ies t
ind ica ted
contained
Ms
Al len s remains.
Haumann
found
two
cabins: one in
June 2014
and
one in Ju ly
2014.
The
f i r s t
cabin
was
off
the
western end of Rice
Road · toward Route 11.
The cabin appeared
uninhabi table ,
with
some metal and wood on the
s ides
of the
s t ruc ture and some
type
of f loor ing .
Haumann
t e s t i f i e d tha t he
to re
up
the
remaining f loor boards with
a pickax
which
yie lded
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negat ive r e su l t s .
However, Haumann
spoke with
a
neighbor,
Mr.
Donegan,
who
confirmed tha t the
cabin
had been demolished pr ior
to
Ms.
Al len s disappearance.
The
second
cabin
was
loca ted a t
the
eastern end of Rice
Road. This was the same
cabin t ha t
Je_remy and
Nicole
Powers
went
to search
for Ms. Al len s remains.
In
con t ras t
to P r i e s t s
asser t ions , the cabin was
in
th ick brush in
the woods,
not near an open
f i e ld .
Further ,
Haumann
t e s t i f i e d tha t
the
cabin was not near any ra i l road
t racks , t did not contain
a wood
stove and t did
not
f i t the
descr ip t ion of the
cabin provided by
Pr ies t .
Dog
handler
Kathryn Bamford
and
her
dog,
Hawk
were
brought in to search
the
s i t e
of th i s
second
cabin.
Bamford
s ta ted
tha t
her dog indicated
a
spot where
human remains
could
have
been. Regardless
of the
accuracy of
the dog s
ind ica t ion
for human
remains
a t the
second
cabin, Haumann s test imony was
tha t t h i s cabin
did
not f i t
the
descr ip t ion provided by Pr ies t .
Therefore , t h i s
Court
i s led to be l ieve t ha t
whatever
human
odor
the dog
obtained,
t did
not
belong
to
Ms.
Al len s remains.
Joseph Lis i ,
a
forens ic i nves t iga to r employed by
Onondaga County Medical Examiner s
off i ce , pa r t i c ipa t e d in
excavat ion a t t h i s
second
cabin on
June
29, 2014. e s ta ted tha t
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he
had
par t i c ipa ted
in two other
inves t iga t ions where
the
cadaver
dogs had indicated
the
presence
of
h u m ~
remains but t ha t
none
were
found.
In
t h i s
case,
the
excavators dug down about
twenty
nine inches
under the
foo tp r in t
of the
cabin and reached
a
hard
packed
l eve l
or layer of
c lay tha t
was
undis turbed
across the
e n t i r e area .
Inves t iga to r Lis i a lso descr ibed
the condi t ion
of
the
cabin as
being in
a
heavi ly wooded
area
not near any r a i l ro a d
t r acks ,
cont ra ry
to
P r i e s t s asse r t ions .
Deputy
Chief Medical
Examiner
Dr. Laura Knight and
another doctor
from
the Onondaga
County
Medical
Exam iner s Off ice
came to
the
second
cabin
to perform
a
forens ic
dig
of
the
area .
The
foo tp r in t
of the cabin was
div ided
in to four quadrants
in
which
the
d i r t was s i f t e d , yet no
human
bones
were
found. Dr.
Knight
also
t e s t i f i e d
t ha t she has
been
assigned to cases in
which
the
cadaver
dogs
have
indica ted the
presence
of
human
remains, yet no such remains
were
recovered.
Defendant s t h i rd -pa r ty cu lpab i l i ty evidence presen ted
a t the hear ing i s in s t a rk con t ras t
to
the under lying fac t s in
People
v.
Negron, 26
NY d
262
[2015].
In
Negron,
supra ,
defendant
f i l ed a PL §440
.10 motion under
the theory tha t the
People had
v io la ted
t he i r Brady obl igat ions
by
f a i l i ng to
d i sc lose
in format ion
about
another suspec t s
a r re s t
and
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possess ion o f .45 ca l i b e r ammunition
c lose in
t ime
t o de fendan t s
a r r e s t
fo r
the
i n s t an t cr ime.
Negron
contended t h a t the People
a l so misled
the
court about
d e fen d an t s t h i r d - p a r ty c u l p a b i l i t y
defense .
After an ea r ly morning road rage i nc iden t ,
Neiron was
i d e n t i f i e d
as
the man
who shot another
ind iv idua l
in the l eg . In
add i t ion to
the
vict im, t he re
were four other witnesses
to
the
even t .
Three of the wi tness , who i n i t i a l l y
f l ed a f t e r
the
i nc iden t but re tu rned a f t e r pol ice a r r ived ,
s t a t ed
t ha t Negron
en te red a
s p ec i f i c
apartment bui ld ing on the same s t r e e t where
the
shoot ing
occurred .
One witness
descr ibed
Negron as
having
f a c i a l
h a i r
and s t a t ed t ha t
a 1999
Chevrole t Monte Carlo was
d r iv en
by the suspec t .
The
pol i ce loca ted the
Monte
Carlo
and
a f t e r
r ea l i z in g t was st ll
warm to
the
touch surmised
t h a t
the
vehic le
belonged
to
Negron
who
res ided
in
the
same
apar tment
b u i l d i n g
to
which the
suspec t
had f l ed .
When Negron spoke with
the
pol i ce t ha t same
day
he
s t a t ed
he
was
the so le opera to r
of
t
and
re tu rned
home
about two hours p r i o r to the shoo t ing . n
ensuing search o f hi s veh ic le y ie lded no evidence of the cr ime.
With respec t to i d e n t i f i c a t i o n evidence
only the
vic t im could i den t i fy Negron as
the
perpe t ra to r .
wo
of the
wi tnesses i d e n t i f i e d o t h e r
i nd iv idua l s i n
a
pol i ce
arranged
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l ineu
p and one
w itn
esses
w
ho
viewed
N
egron
a t a show
up, s t a t
e d
Ne
gron w
as
not
the
m
an he
sa w
sh
oot th e
vic t im.
At
t r
i a l
d
efense
counse l sought
to in t rod
u ce evidenc
e
t h a t
a
th i rd -p
a r ty ,
Fernando Caban, ha
d
commi
tted
th e
sh oo ti
n g
as
Caban c l o s
e l y m
atched th
e
d e s c r
ip t ion o
f Negron,
l iv ed in
th e
same apart
ment b u i ld i
n g and
was ar res te
d the fol low
ing
day fo r
we
apons posses
s ion .
The
P
eople ob jec ted b
y a rgu i
ng th e r e
was no
c lo
se res
em blance
b
etween the
two
o
the r t han
t h e i r e t
h n i c i ty
and
fu r
the r argued
th
a t t was i r re
l e v a n t t
h a t Caban
had
been
a r r e s t ed
th
e
next
day
for weapon
s p o ss
ess ion
a
s the
weapon
ha
d
no
t
been used in
th e sh
oo t ing , despi te
t
h e
fa
c t t had
b
een
fo
und
on
th
e roo f
o f
a
b ui ld
ing
n
ext to
th e
apar tmen t
complex.
The
t r i a
l cour t
r e jec t
ed de fen d a
n t s argumen
t.
The Cour
t o f Appeals
rev e
rsed th e o r
de r
o f the
Ap p e l l a te D ivis ion, g ran ted
d e fenda n t s PL
§440
.10 m otion
and
vaca ted de fen
dan t s
judgm
ent o f conv ic
t ion .
T
he
Court
h eld :
Caba
n
did bea r a
g en e ra
l resemb l
ance to th e d e
sc r ip t ion
o f t
h e
p e r p e t ra
to r ,
l iv
e d in
the
same
b
ui ld in g and
w
as ar res te
d
in c lose
pr
ox imity
to the t ime
of t
h e
offen
se f
o r
p o
ssess ing
wea
pons and
I t should
be noted th at the t r i
a l
court w
s
fo
und
to
h ve applie
d the incorrec
t
st n
d rd in asse s s
in g th
e th ird par t
y c u l p a b
il i ty ev idence which
w
s ddressed
y the
Court o f Ap
peals
The Cour
t a l so
h
eld defenda
n t f a i l e d
t
o
rece
ive
me ningful
r e p r e sen
tat ion .
31
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ammun
ition (inclu di
ng the t
ype of
ammu
nition used
in the
shooti
ng) under
circums
tances evincing
a consciousn
ess of g u i l
t .
T
his e
vidence
can
not
be c lass i f
ied
as
' [ r ]emote
' or
'd isco
nnected '
fro
m
the cr
ime
a t is 'sue
(compare Peopl
e v. Schulz,
4
NY3d
521, 529 [2005])
(Negron, supra a t 26
8-269).
v io la t ion
:
F
ur ther the C
ourt a
ddressed the
People 's
al lege
d
Bra
dy
d
efendant
argues t ha t
the Peo
ple fa i led
to
tu rn
ove
r Br
ady evidence
tha t
w
ould
ha
ve
been
supp
ort ive of his
th
ird -pa r ty
c u lpa b
i l i ty
defense
in pa r t ic
u la r , informa
tion
concerning
the
circumstan
ces of
C
aban's a r re
s t
and h is
p
ossess ion
o
f
.45
ca l ibe
r ammun
ition.
The
t r i a l
ass i s
tan t
(who was als
o prosecut
ing Caban
an
d
.w
as qu i te
f a mi
l iar with
the c
ircumsta n
ces of
h is
a
r res t )
in
addres sing
defenda
nt 's th i rd-p
a r ty
c u lpa bi l i t
y
a
p p lica t ion
character i
zed
Ca
ban's a
r re s t
as
i
r re le va n t
and
his conne
ction with the
shootin
g
as
tenuous a t
b e s t .
The
prosecu to
r a ls
o
at
tempted t
o
p
or t ray defe
ndant 's
app l i
c a t ion as
a
m
ere attem
pt
to pin th
e
c
rime
on another
ind iv idua l who l ived in
the
same
building
and
happened
to
be
of the sam
e
e t
hn ic i ty ,
a l l w
hile
aw
are t ha t
defe
nse counsel
was not fu l
ly fami l iar
with
the relev
ant
i
nformat ion
surro
unding Caban's
a r r
e s t .
U
nder
Brad
y, th
e
p rosecu t
ion 's fa i lu re
to
d is
c lose to the def
ense evidence
in i t s
possess
ion
both f
avorab le
and m
aterial
to the
defense
e n
t i t l e s the defenda
nt
to a new
t r
i a l (Pe
ople
v.
V
ilard i,
76
NY d
67
,
73
[1
990]) .
[W
]
he
re a
defendant
makes
a
spec i f i c
request
for a
document,
the m a
te r ia l i ty
elemen
t i s es tab l
i shed
provid
ed
the re e x is
ts
a
reasonab
le p o s s i b
i l i ty
tha t t
would have cha
nged th
e
re s
u l t
of the
proceedi
ngs
(
People
v. G arre t
t , 23 NY3d
878,
891-892 [2
014]) .
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i n s t an t
Here, where the evidence aga ins t
defendant
was fa r
from overwhelming, the re
i s
a reasonable
p o s s i b i l i t y t ha t
the
verd ic t
would
have
been
d i f f e r e n t
if
the informat ion about Caban
had been
di sc losed .
There
was no
phys ica l
evidence
ty ing
defendant
to
the shoot ing and
only
one out
o f
the
f ive
eyewitnesses i d e n t i f i e d defendant as
the
perpe t ra to r .
The
evidence of. Caban'
s 4 5
c a l i b e r
ammunition
was p la in ly favorable to the defense.
In other words, t h i s
informat ion would have added
a
littl
more
doubt to
the
j u r y ' s view
of the
evidence and it i s reasonably poss ib l e t ha t
a
littl more
doubt
would have been enough (People
v. Hunter , 11
NY3d
1,
6
[2008] ) (Negron, supra
a t
269-270
[ in t e rna l
c i t a t i ons
omit ted]) .
With
respect ' to the f ac t s
before
the Cour t in the
case the
evidence presen ted
i s too remote and
disconnected to show t h a t
someone other
than defendant
kidnapped
Heidi
Allen .
None of
the
witnesses
can
c red ib ly place
Steen,
Breckenr idge or Bohrer a t the D W the morning Ms. Allen
disappeared. None of the
witnesses t e s t i f i e d
to
the f ac t t h a t
Steen, Breckenr idge or Bohrer had
a
van
s imi l a r
to the one seen
t h a t morning a t the s to re .
None of the witnesses can t i e Steen,
Breckenr idge or Bohrer as being
toge ther
the
morning
before o r
during
the
morning
Ms
Allen was
kidnapped.
None 'of the
wi tnesses
can prove t ha t Steen,
Breckenridge
or Bohrer were more
than
s o c i a l
acquaintances ,
and
even
Steen
and
Bohrer
both
admit
t ha t
they
did not
meet
one another .
Steen t e s t i f i e d t ha t he
knew
Breckenridge from
school ,
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used
drugs
with
him, and
cons ide red him
a
soc ia l
acquain tance .
Steen
sa id
he never met Bohrer, but knew t h a t
hi s
wife had
purchased a computer from
Bohrer.
Breckenr idge
a l so
s t a t e d
t ha t
he knew Steen from school
and
did drugs with him, and he only met
Bohrer
once and did not hang
out
with him. Bohrer
s t a t ed
t h a t he
did
not know
Steen and t h a t
he
had met Breckenr idge once,
th rough
·
hi s f r i end
om Mart in .
Moreover, d es p i t e whatever s ta tements
can
be
a t t r i b u t e d
to
Steen, Breckenr idge o r
Bohrer
with respec t
to
what happened to
Ms.
Al len
o r where
her
body i s loca ted ,
a l l
t h ree men were
ques t ioned by
defendant a t
t h i s hear ing and denied any
involvement
in
abduct ing
Ms. Al len from the
s to r e .
The
Court r ea l i z e s t h a t t h e re was
littl chance
o f
Steen,
Breckenr idge or
Bohrer
admi t t ing to kidnapping Ms.
Allen
o r
being
invo lved
in
dispos ing o f
her
a f t e r
the
f ac t ,
if
they
had,
in f ac t ,
been
involved in those
ac t s .
Thus, the
Court
co n s id e r s
the
o t h e r
wi tnesses
tes t imony
pe r t a in ing to
S t e e n s ,
Breck en r id g e s o r
Bohrer s a l l eg ed
s ta tements ,
desp i t e the fac t
the t e s t imony
i s hearsay,
in suppor t o f
d e fen d an t s t h i rd -p a r t y
c u l p a b i l i t y defense .
However, with respec t to severa l witnesses
t e s t i f y i n g
to
s t a t emen t s
made
by
Steen , Breckenr idge o r
Bohrer ,
none of
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those
s ta tements
can be
corroborated .
The witnesses t e s t i f i e d
t ha t Ms
Allen
was e i the r chopped up , burned
in
a s tove
or f i r e
p i t , bur ied undernea th f loor
boards in
a camp,
or
t h a t her body
was
in
a van which was salvaged
in
Canada.
There
i s no proof as
to how Steen , Breckenridge or Bohrer were d i r e c t l y r e l a t e d to Ms.
A l len s
kidnapping other
than hearsay
evidence
of
vague
s ta tements as to
why Ms
Allen
was
k i l l ed
and
t h a t
she
was dead.
Even
those s ta tements
are
not cons i s ten t .
Defendant
places a l o t
of
weight on
the
tes t imony
of
Je n n i f e r
Wescott
and
her
recorded phone c a l l with P r i e s t .
Wescott
responded to P r i e s t s s ta tement t h a t Steen , Breckenr idge
and Bohrer showed up
a t
t he i r house on Rice Road with Ms
Allen
in the
van:
Pr ies t :
But
he
[Steen)
j u s t
to ld
me t ha t
him,
[Steen) , .Michael
Bohrer
and uh Roger
had
t aken uh
Mike 's
van
to
the
s to re
and
t h a t
they
grabbed
her
from the s to re
and
they brought
her
to
your house
and um
he sa id t h a t
you
i ~ f l i p
out when
you
guys
got t he re and uh you know I
s tuck
up fo r you
and
I
d o n t
blame you
fo r
f l i pp ing out
uh and
bas ica l ly
t h a t s
what
he had
sa id
had happened.
Wescott :
m
uh.
Pr ies t : Right . Did you even know t h a t
i s
was
Heidi
t h a t they
brought t he re
and t h a t t h i s i s
what
they
were
going
to
do?
Wescott : Nah, uh
Pr ies t : Had no
clue,
they
j u s t
showed up with her?
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Wesc
ott: Ye
ah.
P
r ies t : What a
bad
p
os i t ion fo r
you
scar
ed the sh i t
out of you
?
probably
Wescott :
Well
it s
not
even
b ri
n g
h
er in th
e house
,
they
v
an. (De
fense
Sxhi
bi t
35)
they
d i d n t e
ven
made her
sit in the
W
hile
Westcott
l a
t e r t
e s t i f i e d a t the
hear ing th
a t she
l i ed to
Pr i e s t durin
g
th
e
phone ca l l ,
the Court
i s
still l e f t to
res
olve the c r e d
ib i l i t y of
Wescot t '
s
resp
onse
th a t the
th ree
men
showe
d up with
Ms A l
len
in
a
van
a t th
e house.
I t has b
een
es tab
li s h ed th roug
h Steen
and B ohrer ' s t
e st imony
th
a t
in
199 4
Ste
en a
nd Bohr
er
d
id
no
t know
one
an
o ther ,
t hus
, how coul
d they
have
been to ge the r
in
1994 with Ms
Allen?
F ur the
r , ev
en i f the
Court w
ere to c red i t
W escott
'
s
s ta temen
t about Ms
Allen being
in t
he
van
a t the
house,
it does
not
prove t ha t
M
s Allen
was
dead a t the
t ime and
t h a t the
th ree
men t he r e a
f te r
k i l l e d her a t
a
cabin
and e i the r
bur i
ed her u
nder
f lo
o r boards or
drov
e
h
er in a
van to
Canada a f t e r
she
was
ki l l ed .
At
bes t , ev
en if her
s tatem
ent i s
the
t r u th ,
defendant
h
as p rese
n ted no cr
ed ib le ev
idence
o
ther
than
t h i s
s ta tement
as
to
what
h
appened
with
Ms
A llen
and how the
th ree
sp
e c if ica l ly
were
invo lved .
Wesc
ott t e s t i f
i e d t
h a t
in
A pril of
1994, when she
was
seventee
n ,
she
l iv e
d on Coun
ty R
oute
38,
H
ast ings w ith her
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parents
HT p.
1399
l i n e s 2-4) . Spec i f i ca l ly , with
respec t
to
re s id ing on Rice Road,
her tes t imony
on cross examinat ion i s as
fo l lows:
Q.
Now Ms. Peebles
asked
you a ques t ion about
Rice Road.
Did
your mom
or
your dad ever l i ve on
Rice
Road in
the
Town
of
Mexico?
A. No.
Q.
Have any
of
your r e l a t i v e s l ived
on
Rice Road
in the Town of Mexico?
A. No.
Q. Have you ever s tayed
the
n igh t
or
spent the
n igh t · a t a res idence on Rice Road in the Town of
Mexico?
A. No. HT
p.
1399 l i nes
5-14)
Wescott
a l so
t e s t i f i e d
t h a t
she went a long wi th the
conversa t ion
P r i e s t wanted
to
have
about the
kidnapping
to
give
Pr ies t a t t en t ion
and
t h a t
she even
l i e d
to
P r i e s t
about being
subpoenaed
to
t e s t i f y a t
the Thibodeaus
t r i a l :
Q.
Were you ac tu a l l y subpoenaed to
go
in to cour t
fo r e i the r
of
the Thibodeaus?
A. Th a t s a
l i e .
I wasn t .
Q.
Why
did you say t h a t you were subpoenaed to go
to
t e s t i f y
fo r the
Thibodeaus?
A. I t o ld Tonya
a ·
1ot
of
l i e s as I sa id .
HT
p.
1412 l i nes 11-16)
Moreover,
Darcy
Purdy
s
tes t imony con t rad ic t s P r i e s t s
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cla im
tha t Wescott
and Breckenridge l ived
a t the home on
Rice
Road a t
the
t ime Ms. Allen was
kidnapped.
Exhibi t
84,
which
i s
the
l ease
Darcy
Purdy
executed
on December 9,
1992, was
in t roduced in to evidence. Based upon tha t
lease , Purdy
t e s t i f i e d
tha t she cont ipuously
l ived a t t ha t proper ty
on
Rice
Road
from
January
of 1993
through
the
end
of 1995 HT p.
2141
l ines 2-4) .
Purdy
t e s t i f i e d
t ha t when she
was
marr ied
in September
of 1994, she
was
st ll res id ing a t tha t loca t ion and
had a
r ehear sa l barbeque the re .
The copy of the r e g i s t ry
book from
what was St. Michael s Parish re f l ec ted Purdy s Rice Road address
when
she was
marr ied (Exhibi t
CCCC .
Further ,
mai l ,
s pe c i f i c a l l y
a
1995
ca ta log
and
a 1995
vacat ion
planner , which
Purdy
cla ims
she rece ived a t
the Rice Road
address , were
ente red in to
evidence
(Exhibi ts EEEE
and
FFFF, respect ive ly) . Fina l ly , Purdy t e s t i f i e d
to
a
l e t t e r
t ha t
she
mailed
to
her
mother
from
her
Rice
Road
address which
bears
a pos t mark of May
5,
1994 (Exhibi t GGGG .
Thus, Purdy s tes t imony
con t rad ic t s P r i e s t s
cla im tha t
Breckenridge and Wescott l ived
on
Rice Road in Apri l o f
1994
and
t ca l l s in to quest ion Wescott s sta tement to
Pr ies t tha t
Ms.
Allen was
brought
to her res idence in a
van
in 1994.
Defendant ca l l ed Deb Vecchio
and
Brian Mensch to prove
tha t around
Apri l of 1994 Wescott and Breckenridge were e i the r
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l iv ing
a t
the t r a i l e r on
Rice Road or
vis i t ed
Wescott
s mother
there . However, Vecchio
repeatedly
guessed a t the t ime frames in
which Purdy and Wescott l ived a t the
residence
on
Rice
Road and
provided no documentat ion to suppor t her tes t imony. Mensch
s t a t e d t ha t he l ived
in
the
garage behind
the t r a i l e r for
about
a
month and
tha t ,
to h is knowledge, no one
was l iv ing in the
t r a i l e r
in
e i t he r 1993
or
1994
when
he bel ieved he l ived there .
Mensch also
previous ly to ld
law enforcement he
l ived
in
the
garage
in
e i ther
1994 or 1995.
Then, P r i e s t s
s tatement about the camp s loca t ion
vac i l l a ted :
the camp was in an open f i e ld ,
the
camp
was
in
the
middle of
the
woods,
the
camp was near
ra i l road
t racks .
When
searchers , those both
lay
and profess ional ,
searched
the
two
camps for human remains, no
human
bones or remains were found.
There
was
tes t imony
per ta in ing to
cadaver
dogs
having
a
pos i t ive
h i t
on a
locat ion ,
only
to
f ind
t ha t no
human remains
were
recovered.
The
Court i s
hard pressed to see
how
any of
the
claimed
newly
discovered
evidence presented a t the hearing,
i f
allowed a t
t r i a l ,
would
l ike ly resu l t
in
a
di f fe ren t outcome.
While these
th ree
men
were in Oswego County in 1994, Steen and
Bohrer
had
never met,
and other than occasional
drug
use,
Steen
and
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Breckenr idge were not f r i ends .
Without
more
s pe c i f i c i t y , t he re
was
no cred ib le , t rus tworthy,
o r
r e l i a b l e
evidence
presen ted a t
the
hear ing by defendant which l i nks any
of these three men
to
t h i s
crime.
These
t h ree
men engaged
in
con jure and
specula t ion
which has r e s u l t ed
in
them
being suspects in
the i n s t an t
hear ing.
Yet desp i t e
a l l the s ta tements
a t t r i b u t e d
to
these t h ree men
over
the course of the hear ing ,
t he re
has been no cred ib le
or
cor robora t ive ·
evidence
suppor t ing the re i s any t r u t h to any of
t he i r
s ta tements .
Even S t e e n s s ta tement t h a t he was t o ld tha t
he brought
the
van which con ta ined
Ms
A l len s
body
to
Canada
to be scrapped
i s uncorrobora ted
by Murtaugh who
t e s t i f i e d t h a t her
body
was
not
in
the van
hauled by Steen.
I f . t h e
Court were to
surmise
S teen s
s ta tement
as be ing
t r u th fu l ,
however
the re
i s
no
i n t en t i o n a l ac t
Steen
committed t h a t i s
in
v io l a t i o n
of the
law.
Had he in
f ac t ,
driven the van and disposed of her
body
which
was
con ta ined
within
the van
Steen
l ea rned of t h a t f ac t a f t e r t had been
sa lvaged .
There was no
c red ib le
proof a t the hear ing t ha t
he
i n t en t iona l ly drove the van which a rguably con ta ined
Ms.
A l len s
body to
Canada
to
be des t royed .
Id e n t i f i c a t i o n by
William
Pierce
Defendant
accords a
grea t deal
of
weight on Will iam
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Pie rce ' s twenty
year
old i de n t i f i c a t i on of James Steen as
the
man
he saw
the
morning outs ide of the D W arguing with Ms. Allen .
However,
a f t e r a thorough and thoughtful
review
of Pie rce ' s
test imony, the re are severa l
s igni f icant
de t a i l s which should be
addressed tha t
underscore the
unre l i ab i l i t y
of his
i de n t i f i c a t i on
of Steen some
twenty
years from the ac tua l
event .
Fi r s t , Pierce s t a t e s
tha t ,
while
he
was stopped in h is
vehic le a t the
i n t e rsec t ion of 104
and 1048
he
saw a domest ic
dispute
· in
the parking l o t
of the
D W the
morning
Ms. Allen
was
abducted.
Pierce s t a t ed tha t , while looking across
the
s t r ee t
from his vehic le , he saw a man s i t t i n g in the dr i ve r ' s
sea t of
a
white
rus ty
van
arguing
with a woman who was
s tanding
outs ide
of
the
van. · After
the
male
dr iver
got out
of
the van, the
dr iver
came around to the
f ront
of the
van and come up
behind the g i r l ,
or
the
woman
and
he h i t
her behind
the
r igh t
ear
on
the
base
of
her
neck,
her
base
of her
skul l ,
with his
f i s t , and she folded
his
jus t l ike a
rag do l l
and
Pierce
saw t h i s man and a
passenger
open
the
passenger
s ide door
before P ie rce
cont inued
in to t r a f f i c
HT
p. 974 l ines
17-20).
Pierce
s ta ted t ha t in his own mind tha t [he] had seen
a domestic dispute , and you don ' t get - - a t
tha t t ime
you
d i dn ' t
ge t
between
a domestic
- - in
two combatants HT p.
979
l ines
19-
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21)
What
Pierce had described can hardly be considered
a
domestic dispute but regardless
he chose
to
dr ive away
and
never
repor t what he witnessed tha t morning to law
enforcement,
l e t alone
ca l l
author i t i e s
for
the sake of the
woman who
he j u s t
saw
assaul ted .
Second,
Pierce t e s t i f i e d tha t
there
was
th ree to
s ix
inches of
s lush
on
the
road t ha t
morning
HT p.
979
l i ne 23), yet
the p ic tu res from the D W
only
show
a
pa r t i a l ly wet road,
not one
tha t
was covered
in inches of s lush
Exhibi ts
UU and ZZ). Pierce
also
s ta ted tha t he
had his
sunglasses on
because
t was sunny,
yet the p ic tu res do
not
r e f l ec t t ha t morning being
sunny.
Third, Pierce
bel ieved
law enforcement cap tured the
suspect ,
tha t
being
defendant , when
he saw
a
p ic tu re of defendant
and drew
a
beard on
him
and thought
t
was the
man he
saw
the
morning
a t
the
D W
HT
p. 1008).
Then,
in
June
of
2014,
so le ly
out of
good
wi l l in wanting
to
reassure the Sher i f f
tha t
he did,
indeed, a r re s t the
cor rec t
suspect ,
Pierce went
to
t a l k
to
the
Sher i f f .
On
July 25,
2014, Pierce spoke
and met
with
Inv.
Pie t roski
and
to ld
the i nves t iga to r tha t defendant was
the
same
man he
saw
on Easter
morning a t
the
D W twenty
years
ago.
However,
when
Pierce
met with Inv.
Pie t roski on October 28,
2014,
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Pierce
was
not
able
to
ident i fy
e i the r defendant or Steen in
the
photo ar rays (Exhibi t
EEE
Exhibi t DDD, respect ively)
.
.
Fourth,
Pierce t e s t i f i e d tha t he changed
his mind about
defendant being
the man
he
observed
on
Eas ter
morning
when
he
saw
Steen ' s pic ture (Exhibi t
138) in the
Post-Standard
about ten
days to
two
weeks
af te r
he had made tha t i n i t i a l s tatement in
July of 2014
to Detect ive
Pie t roski (HT p. 1031 l ines
12-14)
Pierce
s t a t ed tha t
from where
his vehic le was
pos i t ioned a t
the
in te r sec t ion
to where
he
saw
the van a t the
D W,
he
was
approximately
s ix ty fee t away (HT p. 1016 l ines 2-9) .
The Court i s
well aware
of the s ign i f i c a n t
and
mult i tude of
research YJhich
has been publ ished in the recent
years about the c red i b i l i t y of
eyewitness
i de n t i f i c a t i ons .
Over the
pas t
few decades, cr iminal defendants
have increas ingly ca l l ed
on
psychologis t s to of fe r
exper t opinion test imony regarding
the
object ive
and subject ive fac tors t ha t inf luence
the
r e l i a b i l i t y
of
eyewitness i de n t i f i c a t i ons .
They
argue tha.t misident i f ica t ions
may
l ead to
fa lse
convic t ions and t ha t in ce r ta in cases , exper t s
may
of fe r the jury
much
needed guidance regard ing
how
to
assess the
r e l i a b i l i t y
of
an
iden t i f i ca t ion .
Typical ly , such exper t test imony i s based on
research
f indings from experiments tha t t e s t
how
accurate ly experiment subjects
( i . e . , witnesses )
r eca l l
faces and other
de t a i l s under
various
condi t ions . According
. to
one
commentator, the
overa l l
research findings
show
tha t
witnesses
of ten make mistakes,
tha t
they tend to make
more
mistakes in
c ross - rac ia l ident i f i ca t ions
as well
as
when the events involve vio lence , tha t e r rors
are eas i ly
in t roduced by
misleading
ques t ions
asked shor t ly a f t e r the witness has viewed the
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happening,
and t ha t
the professedimulated
confidence of the subjects in t he i r
i de n t i f i c a t i ons bears
the
accuracy
of these
Evidence
§206, a t
880
no cons i s ten t r e l a t i on to
recogni t ions 1 McCormick,
[6th
ed. 2006]) .
Although
there
may
be
r i sks
associa ted
with
al lowing an expert
to apply
research f indings from
experiments
on the r e l i a b i l i t y of eyewitness
i de n t i f i c a t i ons
to
r e a l - l i f e
i de n t i f i c a t i ons ,
these
f indings
- produced
through
sound,
genera l ly
accepted
experimentat ion
techniques and theor ies ,
publ ished in scholar ly journals
and
subjec ted
to
peer review have
over
the years gained
acceptance within the sc i en t i f i c community. On
th i s point ,
then Judge Kaye
previous ly s ta ted tha t
[ t ]o the extent t ha t jud ic ia l acceptance i s
i nd ica t ive of general sc i en t i f i c
acceptance ,
the
emerging t rend today
i s
to
f ind exper t
ps yc ho log ic a l t e s t imony on eyewi tness
iden t i f i ca t ion suf f i c i en t ly
r e l i a b l e to be
admitted,
and
the
vas t
major i ty
of academic
commentators have
urged
i t s acceptance
[P]sychological research
data
i s by
now
abundant,
and the f indings based upon t concerning
cogni t ive
fac tors
tha t
may
a f fec t
iden t i f i ca t ion
a're qui te
uniform
and
well documented (People v.
Mooney, 76
NY d 827, 829-830 [1990,
Kaye,
J . ,
dissent ing] [ in ternal
c i t a t ions
omitted]
) (People
v.· LeGrand,
8
NY3d
449,
454-55
[2007]).
To
understand more
about
the research of
mis iden t i f i ca t ions by
eyewitnesses ,
t i s important
to understand
how a perceived event can be a l te red in a witness ' memory:
Like vis ion ,
memory
i s also
beset
by
noise . Encoding,
s torage and r e m e m ~ r i n g are not pass ive , s t a t i c processes tha t
record, re ta in , and
divulge
t he i r
contents
in an
informational
vacuum, unaffected
by outs ide inf luences . The
contents
cannot be
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t rea te d
as a v e r i d
ica l
permanen
t
r
ecord , l i k e ph
otographs
s to red
in
a
sa fe .
On
t
he co
nt ra ry , t
h e
f
id e l i t y
of our
memo
ries
for
r e a l events
may
be compro
mised by
many fa
c to r s
a t
a l l s tage
s of
proce
ss ing , from
encod
ing through
s tora
ge ,
to the
f i n a l s tages of
r e t r i eva l .
Without aw
areness,
we re g
u la r ly
encode e
ven ts
in
a
bias
ed mann
er
and
su
bsequently
fo rge
t , rec
o n s t ruc t , upd
ate,
a
nd
d i
s to r t
the
t
hin gs
we
b
e l ieve
to
be t rue (Nat ion
al
Researc
h
Council of
th e
Nat ional
Acad
emies,
0
Id
en t i fy ing
th e C
ulpr i t
59-
60 [2
014] ) .
In
t h i s c
ase , P i
e rce ' s mem
ory
of
th e man
he
saw
the
mo
rning
a t
the D
W
was examine
d.
n d i r e c t exa
minat ion , Pierc
e
s
t a t ed th e
fol lo wing
with re
spec t to
why he did
not r
ecognize
Steen in t
h e photo array
sho
wn to him
by
Inv
.
Pie t rosk i :
Q.
Now we
re you
able
to i den t i
fy
Mr. Steen in
t ha t
ph
oto
array
?
A.
No.
Q. And
why not?
A. Well,
fo r
one
th ing I '
v e
nev
er
- - I
n
ever - -
I
d id
n ' t
- - I don ' t kn
ow
th
e
man, I never
saw him
in
my l i f e
before e
xcept fo r t h i s
one
p ic tu r e
t h a t
's
embedded
in my
mind
, and I
wouldn t r
ecognize him
i he
walk
ed
p as t
me r ig h t
here. HT
p. 977
l in
e s
15-2
3)
During
c ross exam
inat ion, the fo l
lowing
te
s t imony took
p l
ace
between Pierce
and
D i s t r i c t A ttor
ney O
akes
in
r e
l a t i o n
to
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Pierce
viewing photo
graphs
of Steen:
Q. Mr. P ie
rce, on Ju l
y tw e
n ty - f i f th of
2014 you
met with
In v es
t iga to r P i
e t rosk i of
the
Oswego
County S h
er i f f ' s
Depart
ment
d id
n ' t you?
A I do
be l ieve
it was th i s
year .
Q Ok
ay with in t h i s p
as t year?
A Yes.
Q
Ok
ay. And
d id yo
u meet w i
th
hi
m a t the
Osw
ego
County S h e
r i f f ' s
Depar
tment?
A
Ye
s
I
di
d .
Q And you
ga
ve a s ta te
men t to
I n v es ti
ga to r
P ie tr
osk i th a t d
ay.
A Y
es I did .
Q And
he ev
en tua l ly typed
up what
it was you
to ld
him
?
A
Y
es he
d id .
Q A
n d
did
he pr in
t t ha t
o
ff
and g
ive you
a chan
ce
to
read
it
s i r ?
A. Yes
he did .
Q
. Okay
Mr.
P ierce,
I m
going to d i r e c t
yo
ur
a t t en t i o n
to a
p a r t i c u l a r
segm
ent.
A Oka
y.
Q.
Where it
says , I did g
e t a good
lo o k
. What
I
'm going to
do i s I m
g
oing to
read i
t and ask
you
to
follow
along as
I
read
it
okay?
A Okay.
Q. Mr. P ie
rce, look
ing
a t
t
h e
s
ta tement ,
d id you
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t e l l
Inves t iga to r P ie t rosk i , I
did ge t
a
good
look
a t the d r i v e r t h a t
h i t
the woman and l a t e r
saw
on the news the pol ice had Gary Thibodeau
under
a r r e s t and I
sa id
t h a t ' s the
guy t ha t h i t
the woman a t the convenience s to re a t 104
and
1048
Eas te r
morning.n
A Um hum.
Q Is t ha t what you t o ld Inves t iga to r P ie t rosk i?
A
Yes
I
did .
Q
And
again , would you agree wi th
me
t h a t
in your
s ta tement
you ' re
b as i ca l l y say ing
you were
p r e t t y
c e r t a i n t h a t it
was
Gary
Thibodeau
when you saw it
on
the news?
A Yes I was.
Q Mr. Pierce , during 1994 and 1995 weren ' t t he re
repea ted
reques t s in the
news o r
in
the media t h a t
if
anybody
had
informat ion
r e l a t i v e
to t h i s case
p l eas e come forward?
A Only
a f t e r
I had gone and made t h i s s ta tement
t o P ie t rosk i , Detect ive Pie t rosk i , did I
see
anyth ing
in
the
paper
about
it The
t ime
over the
years
t he re was
plea for
anybody
t ha t
knew
anyth ing
to come
forward a t t h a t t ime.
Q Well
in
1994 spec i f i ca l ly , weren ' t t he re
reques t s in
the media t ha t law enforcement was
asking anybody with informat ion about t h a t
morning
to
come forward?
A Um hum.
Q But you never
came
forward a t t h a t t ime?
A Well I f igured t he re
was
so
many
people t h a t
saw the i nc iden t
t h a t
one o f them should
have
gone
forward too ,
and
if t hey 'd have s tepped forward
I ' 'd
have
s tepped forward. At the t ime I
d idn ' t
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want to get involved. HT
pp. 1005-1012)
Then, Pierce met with Inv. Pie t rosk i in October of 2014
to
view
two
photo
arrays
which
separa te ly
conta ined
photographs
of defendant
and
Steen.
Q. And when you
[Exhibi t
DDD] you
tha t
photo.
were
shown tha t
d i dn t
recognize
photo ar ray
anybody in
A. I
don t
know
any of them. How should
I
recognize them?
Q. Okay. Well, you d i d n t recognize any of
those
people as being
the
male in the van did you?
A.
Not a t a l l .
Q.
Okay.
Now do
you
rea l i ze tha t
Mr.
Steen i s in
posi t ion number
three in
tha t photo
ar ray?
A. I wouldn t say
tha t was
Mr. Steen
tha t
I know.
Th a t s
the Steen tha t
I know ( ind ica t ing) .
Q. Number
know.
Exhibi t 138 i s the
Steen
t ha t
you
A.
Um
hum.
That s the one
tha t
I
know.
Those
are
two di f fe ren t people
as
far as
I
can see. HT p.
1035 l ines 4-17)
In t h i s case, Pie rce s , i nab i l i t y to accura te ly
i de n t i f y
the
man he
cla ims
he saw
the
morning
a t the
D W can be based
on
many fac to rs .
Leaving
aside
for
the moment
P i e rc e s
fa i lure
to
repor t what
he
observed immediately
a f t e r the
inc ident ,
o r even
within those weeks or months t ha t followed before defendant s
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t r i a l ,
the
Court wi l l
address the
problems
with
witness
i de n t i f i c a t i ons
which
are
suscept ib le
to
a ple thora of
t a in t .
A witness '
inev i tab le i n t e rac t ions with law
enforcement
and
l egal
counsel ,
not
to
mention communications
from
j ou rna l i s t s ,
family,
and
f r iends ,
have the
potent ia l
to
s ign i f i c a n t ly
modify
the
witness '
memory of faces encountered and
of
other
event
de t a i l s a t
the
scene
of the
crime. Thus the
f ide l i t y of re t r i eved events - and
the
accuracy of i de n t i f i c a t i on
-
i s
l i ke l y
to be grea te r when
re t r i eva l
occurs
c lose r to
the
t ime
of
the
witnessed
events . The
conclusion above
has important
impl ica t ions
for
law enforcement and
the
l egal
process
and ca l l s
in to ques t ion the va l id i t y
of in -cour t : i den t i f i ca t ions
and t he i r
\
appropr ia teness as s tatements
of fac t
National Research Council
of
the
Nat iona l Academies, supra a t 65
Given the f ac t
tha t t i s
unc lear
how many
t imes
Pierce
viewed both defendant ' s and Steen 's
photographs
in
the
media over
the
pas t
twenty years ,
and the
obvious
f ac t
t h ~ Pierce
i s
claiming
tha t
he
can
now, without any shadow of a doubt, say
tha t
Steen i s
the
one he saw
the
morning a t the D W with Ms. Allen, i s
not credib le .
While Pierce may be t ry ing to accura te ly
recount
from
his
twenty year
old
memory
what he
witnessed
tha t
morning,
outs ide inf luences and
the f r a i l t y of
encoding, s torage and
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remembering must
be
taken in to
account.
Further , the Court
has
to reconci le the fac t
tha t
Pierce did
not
ident i fy e i the r defendant or
Steen
in the photo
.arrays when he viewed them
with
Inv. Pie t roski .
I t
i s n t un t i l
Pierce sees
Steen s
unre la ted
booking
photo in the newspaper some
two
weeks a f t e r meeting with Inv. Piet roski
t h a t · Pierce
cla ims
tha t Steen i s the rea l
suspect .
However, Pierce cannot even
i de n t i f y Steen in the i n i t i a l photo ar ray shown
to
him by law
enforcement
and
claims he does
not
know Steen.
The Court understands tha t the newspaper s p ic tu re of
Steen, which
shows
Steen with a beard,
helped
Pierce to
f ina l ly
recognize
Steen these
twenty years l a t e r .
However, for t h i s
Court to wholehear tedly inves t any credence in Pie rce s twenty
year old
condi t ional i de n t i f i c a t i on of
Steen
as
Ms.
Al len s
kidnapper,
the
Court has
to
ignore
common
sense
and
d i s c r e d i t
previous j ud i c i a l
r e l i ance
upon vas t sc i en t i f i c research; both of
which d i s c r e d i t
Pie rce s
tes t imony.
I f anything can be
gained
from Pie rce s tes t imony, t
i s tha t even
Pierce
cannot
ident i fy
defendant nor Steen from
. t he i r
photographs
taken
closer
in
t ime
to Ms.
A l l e n s
disappearance (Exhibi ts
and DDD . The
Court
understands
tha t
as Pierce t e s t i f i ed , he bel ieved he saw
a bearded husky, poss ib ly
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migrant worker of
Hispanic
orig in , argue
with
Ms
Allen
tha t
morning.
However, due
to
the fac t tha t he f a i l e d
to immediately
repor t
and document what
he observed, his fa i lure
to
ident i fy
Steen
in
the f i r s t
photo array in 2014, and
Pie rce s
unwavering
bel i e f tha t ,
a f t e r defendant
was
a r res t ed in
1994
and dur ing
the
i n i t i a l interview
with
Inv.
Piet roski
in
2014,
tha t defendant
was
the man he
saw
the
morning with
Ms Allen in
1994,
the Court
cannot
yie ld
any evident iary value to h is tes t imony
tha t
Steen s
more recent pic ture
·enables
him
to ident i fy
Steen
as the suspect
from twenty years ago.
Statements Against
Penal
In te res t
Throughout the hearing, the Court
heard
from
many
of
defendant s witnesses about s tatements t ha t Steen,
Breckenridge
and
Bohrer . made
over
the
years per ta in ing to
Ms
Al len s
kidnapping. Defendant
argues
tha t
these
various s tatements
import
the men s culpabi l i ty , which i s
evidence defendant
could
use
in his defense a t
a new
t r i a l .
Defendant
argues
tha t the s tatements made by
Steen
Breckenridge and
Bohrer
to
other
indiv iduals are
admiss ible as
s tatements agains t t he i r
penal
i n t e re s t .
The hearsay except ion of
a s tatement
made agains t one s
penal i n t e re s t :
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has
been
recognized out of
necess i ty
and in
the
b e l i e f t h a t the s e l f - i n cu lp a t i n g natu re o f the
dec la ra t ion serves as an
adequate
su b s t i t u t e fo r
the
assurance
o f r e l i a b i l i t y usua l ly der ived from
the admin i s t ra t ion of an
oa th
and the t e s t i n g o f
the s ta tements by cross -examinat ion .
Because
these
t r a d i t i ona l guaran tees
a re
absen t
when
out -o f -cour t dec la ra t ions aga ins t
penal
i n t e r e s t
a re o f fe red , such evidence
i s
admit ted
cau t ious ly
and only a f t e r r e l i a b i l i t y i s f i rmly es t ab l i shed
(People
v.
Thomas,
68 NY2d 194,
198; People
v.
Geoghegan, 51 NY2d 45, 49; see genera l ly ,
Fisch,
Y Evidence
§891
[2d 1977]) . As wi th a l l forms o f
hearsay evidence , a determinat ion o f the
ad mis s ib i l i t y
o f a dec la ra t ion
ag a i n s t
penal
i n t e r e s t ,
·
focusing on the
c i rcums tan t i a l
p r o b ab i l i t y o f
its r e l i a b i l i t y , must
be made
b efo re it
i s
rece ived ; the tri l
cour t
must
determine , by
eva lua t ing
competent
evidence
independent of the dec la ra t ion i t s e l f , whether the
dec la ra t ion
was spoken under ci rcumstances
which
renders · i t h ighly probab le t h a t it i s t r u t h f u l
see , People v. Shor t r idge , 65 NY2d 309, 312-313;
see genera l ly , Richardson,
Evidence
§206, a t 183-
184
[Pr ince lO h ed. 1973]; Goodman Waltuch,
Declara t ions
Against
Penal
In t e r e s t :
The
Major i ty
Has
Emerged, 28 NYLSchLRev 51
[1983]; Fine ,
Declara t ions
Against
Penal
In t e r e s t in New
York:
Car te
Blanche?,
21
Syracuse
L
Rev
1095
[1970]) .
Thus, before s ta tements o f a
nonte s t i fy ing
t h i r d
pa r ty
are
admiss ib le as a dec la ra t ion
ag a i n s t
penal i n t e r e s t , the proponent must s a t i s f y
the
cour t t h a t four pre requ is i t e s are
met:
1) the
d ec l a ran t must be
u n av a i l ab l e
to t e s t i f y by
reason
of dea th , absence from the j u r i sd i c t i o n , o r
r e fu s a l
to
t e s t i f y on co n s t i t u t i o n a l grounds ; (2)
the d ec l a ran t must be aware a t the t ime of its
making t h a t
the
s ta tement
was co n t r a ry
to
h i s
penal
i n t e r e s t ; 3)
the d ec l a ran t must have
competent
knowledge
of
the
under ly ing
f ac t s ;
and
4) t h e re
must be
su f f i c i e n t competent
evidence
independent
of the dec la ra t ion to
as su re
its
t rus twor th iness
and r e l i a b i l i t y (Thomas,
supra
a t
197) (People v. Brensic , 70 NY2d 9, 14-15 [1987]
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[ i n t e r n a l c i t a t i o n s omi t t ed] ) .
Defendant
c a l l e d many witnesses to the s t and
throughout
the
hear ing
to
t e s t i f y
to c e r t a i n
s ta tements made
s ince Ms.
A l l e n ' s kidnapping
by Steen
Breckenr idge and Bohrer .
Put t ing as ide the fac t t h a t the f i r s t prong o f the
s ta tement ag a i n s t
penal
i n t e r e s t hearsay excep t ion , t ha t the
dec la ran t
i s
unavai l ab le to
t e s t i f y ' . was
not
met in t h i s case ,
the witnesses
who
t e s t i f i e d
to
ce r t a in s ta tements made
to them
by
Steen,
Breckenr idge
and
Bohrer
f a i l
to
meet the excep t ion
under
the o t h e r t h ree prongs.
As discussed
prev ious ly ,
P r i e s t ' s s ta tements made about
the subs tance o f
Steen ' s
admiss ion
i s
whol ly unre l i ab le . Not
only
did
defendan t no t
c a l l
P r i e s t
as a
wi tness
in t h i s case ,
but
r a th e r
chose to
admit her
writ t .en s ta tement , cor robora t ion o f the
a l l eg ed
admiss ion
t ha t Ms.
Al len was b u r i ed
somewhere
out on Rice
Road under the
f loor
of
a
cabin was proven f a l se .
Joseph Mannino t e s t i f i e d t h a t
while
he
was
i nca rce ra t ed
with Steen
in the
Oswego County J a i l
in
2011 Steen t o l d
him Ms.
Allen was
a
r a t and
t h a t
Steen had hauled
the
van which
Compare with People v Soto 26 NY d 455 [2015] wherein the witness was unavailable to
t e s t i f y because
she
had invoked her
Fifth
Amendment r ight to remain s i l e n t and the
People
~ e f u s e to grant her immunity.
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contained
her
body
to Canada to
be
sa lvaged HT
pp. 641-642).
However, Mannino t e s t i f i e d tha t
Steen
did
not
impl ica te himself
in the
d i r e c t
kidnapping of Ms
Allen,
and acknowledged on cross
examination
tha t
Steen ' s
s tatements could
have
been
mere
conjecture .
As the Court
quest ions
Mannino's
inconsis ten t
hearing tes t imony
to
tha t of his July 28, 2014
sworn
s tatement ,
and
the fac t
the re
was no
bas i s
to
corroborate
the underlying
fac ts in the s tatements made by
Steen to Mannino,
Mannino's
tes t imony
would
not
be
allowed a t
t r i a l .
Amanda
Braley
t e s t i f i ed tha t
while
she was
a t
a party
in 2006 or
2007 she
heard Steen
t e l l
another
person You
know
me,
Shaggy, I 'm
not
a f ra id to go to pr ison, I ll go for anybody and
I can,
however,
t e l l
you I wil l
never see
a
day in pr ison
for
what
we
did
to
Heidi HT p. 673).
However,
despi te
Braley ' s
hearing
tes t imony,
she
did
not
rec i t e
these
same
s ta tements
when
she
provided her sworn s tatement to defendant ' s counsel (Exhibit
K
and HT pp. 689-693). Further , Braley admit ted tha t while she
bel ieved
Breckenridge was also involved in
Ms
Al len ' s
disappearance, she continued to soc ia l i ze
with
him and Wescott.
She
also sa id she
went
with Wescott to look
for Ms Allen ' s
remains in a
cabin
in 2006, a l l
while
bel ieving
Breckenr idge ' s
s tatement tha t Ms Allen ' s
body was disposed
of in a van which
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was d r iv en
to Canada.
Braley
a l so t e s t i f i e d t h a t Breckenr idge
s t a t ed
in f ron t
of her
and s ix
o r
seven
othe r s in 2002 o r 2003 a t a pa r ty t h a t
he
took t h a t
b i t ch
to the scrap yard in the van, they had t
crushed, · and
t h a t
she was shipped
to Canada
HT pp. 669-670).
However, on c ross examinat ion, the fo l lowing
exchange
took
place :
Q.
Okay, and you t e s t i f i e d to
ce r t a in
s ta tements
t ha t
you
heard
Roger
Breckenr idge make,
one o f
those
be ing ,
We took t h a t bi t6h to the scrap yard
in
the van?
A.
Yes.
Q.
He
d i d n t spec i fy who we?
A. No.
Q.
We was?
A.
No.
Q.
Did
he
say
how
she
came to
be
in the
van?
A. No.
Q. He
d i d n t
say t h a t he
had abducted o r kidnapped
her
from
the
s to re
did he?
A.
No.
Q.
He
d i d n t say anything about k i l l i n g her did
he?
A.
No, not in
my
presence.
Q.
He
d i d n t say anything
about
dismembering her
o r chopping
up
her body o r anything l i k e tha t?
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A. Not
to
me.
Q. He d i d n ' t
say
anyth ing about burning
t h e
body?
A.
No.
Q. At any
poin t? He d i d n ' t
r e a l l y - - and
he d i d n ' t
s p ec i fy
whether he
had
co n tac t
with her whi le
she
was even a l i v e did he?
A.
No.
Q.
Did he say
where the van came from?
A. Nope.
Q.
Okay,
comment,
you c a n ' t
and
a t t h a t t ime you s a i d when he made a
Jen
responded
e s se n t i a l l y
say ing Roger,
be
say ing t h a t
s t u f f
or t h a t s h i t ?
A. Yeah.
Q. Okay, and Roger 's response was, That
s h i t i s
done
and over
with?
A.
Yes.
Q.
Okay,
did
you
get the
impress ion
when
he
sa id
t h a t t h a t he wasn ' t concerned about
be ing
charged
wi th i t ?
A.
Yes.
Q. You thought he was
t a lk ing
about a r ea l
i n c i d en t ?
A.
Yes.
Q.
Based
on
might
have
body?
A.
Yes.
hear ing those
words,
a c t u a l l y
di sposed
o f
56
you
thought
he
Heidi A l len ' s
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Q.
Okay,
so
s ince t ha t
- - wel l ,
t h a t nigh t
then ,
you repor ted
t
to pol i ce , r i gh t?
A No.
Q The next day?
A.
No.
Q The fo l lowing
month?
A. No.
Q
Never?
A Nope.
Q.
Okay,
so
a f t e r
t h a t day, you
never
had any
other
con tac t with Mr. Breckenr idge , r igh t?
A No, I
did . ,
Q
You
did?
A.
Yeah.
Q. This man you thought
disposed
of
Heid i s
body,
him?
s incere ly and hones t ly
you
kept hanging around
A I
r e a l l y
d i d n t
have
a choice
in
the mat te r .
Q You w eren t
l i v in g
t he re
a t
t h a t poin t , r igh t?
A
Right. HT pp.
676-681
Based upon Bra ley s cumula t ive tes t imony
t oge the r
with
her
sworn
s ta tement , the
Court
f inds
t h a t
Braley
s tes t imony
regard ing Steen and Brecken r idge s s ta tements i s
not t rus tworthy
or
r e l i a b l e .
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Ronald
Clarke
t e s t i f i e d for the
defense
tha t
Steen
s ta ted to him and his chi ldren
a
few years a f t e r defendant ' s
t r i a l
tha t Ms
Allen was long gone
now , gone
to Canada and
tha t
the po l ice had a r res t ed the wrong
people
and tha t the
Thibodeau
boys
d i dn ' t do
i t HT p. 1051).
Steen
also
to ld
Clarke
tha t he knew more about Ms Allen ' s
case
than the pol ice .
This discuss ion took place when Steen
jus t
happened
to
pop in
the
door
the same t ime
I
was
l ike
kind of discuss ing with my
boys
to
l e t
them
go
for the bicycle
r ide,
and he looked r igh t a t my
boys,
and
they were
from
me
to
you away, and he sa id , 'Oh, boys , '
he says ,
It s get t ing
l a t e and
you be t t e r l i s t en to
your
dad. '
He says , 'Look
a t
what happened
to Heidi Allen ' ·
HT pp.
1049-
1050).
However,
again,
even assuming
Steen
had
not
t e s t i f i e d
a t
the hearing,
the re
i s
nothing
to
suppor t
the
argument
tha t
Steen ' s s tatements to Clarke were more than mere specula t ion , and
were not based
on
any di rec t knowledge Steen had of
Ms
Allen ' s
kidnapping.
Megan Shaw
t es t i . f ied
tha t
Steen
to ld
her in
May
of
2010,
and
then again referenced
t he i r
conversat ion in
June
of
2010,
tha t he
disposed of
Ms
Allen and
knew tha t Ms
Al len ' s
remains were
s t rewn
about in and around
a
cabin in Par ish , New
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York.
Shaw
claimed Steen helped
dispose
of
Ms
Allen
to curry
favor with the Vicious Circ le motorcycle
club.
However, i f the
Court were to consider admit t ing Shaw's tes t imony
a t
t r i a l ,
again, there i s
no
corroborat ion to the fac t tha t Steen was
involved in the underlying
kidnapping.
At
best ,
Steen
i s
gui l ty
as an accomplice a f t e r the fac t in disposing of Ms Al len s
body.
3
Moreover, the Court c redi t s the tes t imony of r e t i r ed
Deputy Superintendent Lance
Mason,
who
s ta ted
tha t he founded the
Vicious Circle Motorcycle
Club around
2000, and tha t the Oswego
County chapter was
not formed
unt i l 2003
or 2004.
Mason
also
t e s t i f i ed tha t
he did not
know Steen,
Breckenridge or
Bohrer and
did
not know those
three
to
be
associa ted
with the Motorcycle
Club. Thus,
based
upon the c red ib i l i t y of
Mason's
test imony,
Shaw's
tes t imony
has
been
proven
not
to
be
re l i ab le
or
t rus twor thy
and
t
would
not be admitted as a
hearsay except ion.
Chris topher
Combes
t e s t i f i e d
tha t
he
worked with
Breckenridge
and
tha t some
t ime in the
ear ly
2000s,
Breckenridge
to ld Combes
We
chopped
her
up, we put
her in
a wood
s tove
and
put
her
in a vehic le and sent
her
to Canada , however, Combes
3
The
Court should note
that
even i f there
was proof o f
the
fact ,
the
s t a t ut e o f l imi tat ions
to
prosecute
Steen
for
t h i s act has
run
See, genera l ly PL §30.30 .
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never t o ld the po l ice about t h i s
comment
u n t i l the Summer of 2014
HT pp.
1129-1131). Combes a lso
t e s t i f i e d t h a t
he
d i d n ' t
want to
get
invo lved because
he d idn ' t take
Roger ' s words
c red ib ly
HT
pp. 1131-1132).
In
l i gh t
of the
f ac t
t ha t
Combes
did not
be l ieve
Breckenr idge to be speaking t r u th fu l ly , and only mentioned
Breckenridge 's
comment
to a f r i end of hi s who was
in
law
enforcement
the
summer
of
2014
while the
Allen i n v es t i g a t i o n
became ac t ive once more,
the Court
does
not c re d i t
Breckenr idge ' s
s ta tement
to have been made knowingly to
inculpa te
himsel f .
Jes s ica Howard
a lso
t e s t i f i e d about
the s ta tements
Breckenr idge made to
her
about Ms Allen being a r a t and t ha t
Ms Allen wouldn ' t be found. The
Court
has grea t
concern over
Howard's
tes t imony
because
t
was learned through
her tes t imony
t ha t Howard
becomes
confused
and
cannot
remember
f ac t s
because
of
the s i d e -e f f e c t s of ce r t a in medicat ions she inges t s .
She a l so
t e s t i f i e d
t ha t the
me.dicat ions
were impacting
her
a b i l i t y to
remember what was sa id many years ago and t h a t she was not
sure
of her
tes t imony HT p. 1171 l i ne 3) .
Further , defendant
t r i ed
to admit a p ic tu r e Howard
took
with her c e l l u l a r phone
of
a
photograph
which was
pos ted
on a
community
Facebook s i t e . This photograph
por t rayed two men
and
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one
woman who
Howard
bel i eved were Ms
Allen,
Steen
and
Breckenr idge . However, defendant
did
not u l t imate ly seek to have
t h i s
p ic tu r e
admit ted once defendant l ea rned t h a t the female in
the p ic tu r e
was not , in fac t , Ms
Allen.
Given the
q u a l i f i ed
tes t imony by Howard
due
to the
e f fec t s of
her
medicat ions on
her
a b i l i t y to r e c a l l ce r t a in
events , the Court
deems her
tes t imony
unre l i ab le and not
t rus tworthy.
Tyler
Hayes
t e s t i f i e d
t h a t in 2000 he had a
conversa t ion with Bohrer in a loca l
t avern . Hayes
approached
Bohrer a f t e r
some
patrons
complained
t ha t Bohrer ' s conversat ion
about Ms
Allen was
making them uncomfortable . Hayes
at tempted
to make Bohrer want to
leave
the bar
but
ended up engaging in a
conversa t ion with him. Bohrer
t o ld
Hayes
t ha t
Bohrer knew who
did
i t
and
knew
where
Ms
Allen ' s
body
was loca ted
HT
p. 200).
After
Hayes' a t tempt to have
Bohrer
leave
the bar was
fo i l ed ,
Hayes
spoke
with Bohrer
again
in the men's room.
At t h a t t ime,
Bohrer began sobbing
and
s t a t ed
t h a t
he
cou ldn ' t
deal
with t
anymore
and
Hayes t o ld him to ca l l the
po l ice .
When he
got
home
from the
t avern , Hayes
ca l led
law enforcement
and
provided a
s ta tement to them over the phone about hi s conversa t ion with
Bohrer .
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In
comparing
Bo h re r s demeanor a t the t avern
to
Bohre r s
demeanor
dur ing
the
hear ing ,
it i s obvious
Bohrer was
deeply ,
a l b e i t
oddly,
emot ional ly a t t ached to
Ms. A l len s
kidnapping inves t iga t ion . During Bohrer s t e s t imony ,
the
Co.urt
had
to
t ak e a
recess
in order fo r Bohrer
to compose
himsel f and
s top
cry ing . The Court was
ab le to
judge
Bohrer
s t e s t imony
f i r s t
hand
and, desp i t e
whatever
emotional
connec t ion
he has to
the i n v e s t i g a t i o n i n t o Ms.
A l l e n s
di sappea rance ,
the evidence
does
not
prove t h a t when Bohrer made these s ta tements
to
Hayes
t h a t Bohrer
was
ac tu a l l y admi t t ing to kidnapping Ms. Allen.
Thus,
Hayes t e s t imony would
not be
admi t t ed
as it i s
not.
evidence of Bohrer having confessed to the kidnapping o f Ms.
Allen .
Las t ly , Danie l le
Babcock
t e s t i f i e d t h a t when she worked
wi th
Bohrer
in
2001
and 2002,
he
would
make
comments t h a t
would
make her fee l
uncomfor table :
Q
Did he
ever say anything
to
you
t h a t
made you f e e l
uncomfor table?
A. Yes.
Q
What
did
he
say
to you?
A.
He
would
t ll
us
severa l
t imes
t h a t
he would
do
us
l i k e he did Heidi .
HT
p. 632
l i n e
20-25)
However,
Babcock
admi t t ed
t h a t Bohrer
made
these
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s t a t emen t s in
f ron t
o f two o t h e r employees, her s i s t e r Tanya
Babcock and Alex McNab, while t hey worked with
Bohrer
a t
Medspars .
Spec i f i ca l ly , with respec t to how she f e l t about these
t h r e a t s , Danie l le Babcock t e s t i f i e d t h a t she did
not
fee l t h a t
she
was
in danger and never con tac ted law enforcement :
Q You never
repor ted
t h i s
to
the
pol i ce
though?
A. No, we j u s t thought t
was
vague t h r e a t s .
HT
p. 635
l i n e s 9-10)
Given the natu re o f Babcock s
tes t imony
t h a t she
viewed
Bo h re r ' s
s ta tements to
her
and
her
, s i s t e r and
coworker
as
a
vague
t h rea t , t h i s
t e s t imony
i s not competent evidence which would
warrant ts admiss ion a t t r i a l .
In
sum,
none
of the s ta tements a t t r i b u t e d
to
Steen,
Breckenr idge and Bohrer , which defendant seeks
to
i n t ro d u ce as
newly discovered
evidence , a re
admiss ib le
under
the s ta tement
ag a i n s t pena l
i n t e r e s t
hearsay excep t ion . I mp l i c i t in
th
[e]
ground fo r
v aca t in g
a
judgment of
convic t ion i s t h a t the newly
discovered evidence be admiss ib le (People
v.
Tanklef f ,
4 9 AD3d ·
160, 182 [2nd
Dept.
2007] ) .
There fore , d e fen d an t ' s
reques t
t h a t
h i s co n v ic t io n be vaca ted based upon such newly discovered
evidence
i s
DENIED
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Review
of
Diar
ies
This
Court con
ducted an in
camera
review of M
s. A llen ' s
1993
and 1
994 d
ia r ie s a t de fendan t
's r
eques t ' .
This r
eques t
was
b
ased upo
n
the
be l i e
f th
a t some of
the names wri t te
n
on a
p
iece
of
pa
per
which was f
ound wit
h
the
inde
x card i
n
the
D W p
ark ing
lo
t could
ha
ve been conta i
ned
within her
d ia r ie s
and
were Brady
m ate
r ia l .
on
e of the na m
es wri t ten
on
the p ie
ce of
paper a
re
ment
ioned in the
d ia r ie s .
The foreg
oing cons t i t
u t es
the opinion, d ec i
s ion
and
order
o f
th
e Court .
ENT
ER.
D N
IEL R. K
ING
ACTING OSWEGO
COUNTY CO
URT
JUSTICE
Dated: M
arch
2,
201
6
4
I t should
be
no
ted
t h a t
Ju dge Clary
f i r s t address
ed
de
fendant s
request t
o
have
the
Court