To be ARGUED by:

GregQry S. Gakes, Esq.

Oswego County District Attorney
Estimated Time: 15 Minutes

STATE Of NEW YORK

OSWEGO COUNTY COURT

THE PEOPLE Of THE STATE OF NEW YORK,

Plaintiff-Respondent,

V.

GARY THIBODEAU,
tefedant-Appel1ant,

KA 16-00510
Oswego County Indictment No. 94-161

RESPONDENTS BRIEF

GREGORY S. OAKES
DISTRICT ATTORNEYS OFFICE
39 CHURCHILL RD.
OSWEGO, NEW YORK 13126
(315) 349-3200
Lisa A. Peebles, Esq.
Attorney for Defendant-Appellant
federal Public Defender
Office of the federal Public Defender
4 Clinton Square, 3rd floor
Syracuse, New York 13202
(315) 701-0080

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ii

PRELIMINARY STATEMENT

STATEMENT OF FACTS

I.
II.

TRIAL EVIDENCE
NEARING EVIDENCE

2
11

ARGUMENT
POINT I: DEFENDANT FAILED TO ESTABLISH THAT THE PEOPLE WITfflIELD
EXCULPATORY EVIDENCE OR THAT PREJUDICE AROSE FROM THE
ALLEGED SUPPRESSION

12

POINT II: THE HEARING COURTS CORRECTLY ANALYZED THE DEFENDANTS

ALLEGED CLAIMS OF NEWLY DISCOVERED EVIDENCE AND
CORRECTLY DETERMINED IT WOULD NOT HAVE CHANGED
THE VERDICT
Introduction of Recorded Phone Call
William Pierces Testimony
Other Evidence

33
39
41
46

POINT III: THE HEARING COURT USED THE APPROPRIATE EVIDENTIARY

STANDARDS AND PROPERLY ASSESSED ADMISSIBILITY OF ALL
THIRD-PARTY CULPABILITY EVIDENCE
A. The Court properly precluded Defendant from presenting prior bad
act evidence relating to Michael Bobrer, as such conduct was
irrelevant to instant proceeding

48

48

B. The Court properly precluded Defendant from introducing other items

of evidence

55

C. The Hearing Court thoroughly considered the third-party culpability

evidence presented by Defendant and properly examined the admissibility
of third-party admissions

58

POINT IV: THE HEARING COURT INDIRECTLY ADDRESSED THE ACTUAL

INNOCENCE CLAIM WHEN IT FOUND THE EVIDENCE WOULD NOT
RESULT IN A DIFFERENT VERDICT

69

CONCLUSION

70

TABLE OF AUTHORITIES

Comstock v. Goetz Oil Corporation, 11 A.D.2d 847

(3rd

Dept. 1960)

64

People v. Allweiss, 48 N.Y.2d 40 (1979)

51

People v. Almonor, 93 N.Y.2d 571 (1999)

68

People v. Archie, 7$ A.D.3d 1560

(4th

Dept. 2010), lv denied 16 N.Y.3d $56 (2011)

People v. Aska, 91 N.Y.2d 979 (1998)

5$, 6$

(4th

People v. Backus, 129 A.D.3d 1621

14

Dept. 2015), lv denied 27 N.Y.3d 991 (2016)

33, 34

People v. Beam, 57 N.Y.2d 241 (1982)

49

People v. Berrios, 150 Misc.2d 229 (Bronx Sup.Ct. 1991)

56

People v. Capozzi, 152 A.D.2d 985

(4th

Dept. 1989)

People v. Clarkson, 78 A.D.3d 1573

(4th

Dept. 2010)

55

People v. Coleman, 186 A.D.2d 509

(1st

Dept. 1992)

55

People v. Condon, 26 N.Y.2d 139 (1970)

49

(2d
Dept. 2012), lv granted 19 N.Y.3d 1025 (2012),
People v. Deacon, 96 A.D.3d 965
appeal dismissed20 N.Y.3d 1046 (2013)

59

People v. DeMeo, 139 A.D.2d 75$

(2Id

Dept. 198$)

People v. DiPippo, 27 N.Y.3d 127 (2016)

People v. Doshi, 93 N.Y.2d 499 (1999)

55
49, 50, 51, 52, 62
14,20,31

People v. Fiore, 34 N.Y.2d 81(1974)

55

People v. Fuentes, 12 N.Y.3d 259 (2009)

26

People v. Gamble, 72 A.D.3d 544 (1 Dept. 2010), affirmedN.Y.3d 386 (2012)

2$

People v. Gamble, 18 N.Y.3d 386 (2012)

28

People v. Garrett, 23 N.Y.3d 87$ (2014)

13,21,26,32

People v. Golden, 211 A.D.2d 729 (2 Dept.), lv denied 85 N.Y.2d 938 (1995)

42

People v. Hayes, 17 N.Y.3d 46 (2011)

59

People v. Jackson, 198 A.D.2d 301 (2 Dept. 1993), lv denied 83 NY2d 806 (1994)

13, 21

Peoplev. Lard, 71 A.D.3d 146$

(4th

People v. Mazyck, 118 A.D.2d 72$

Dept. 2010), lv denied 14NY3U 889 (2010). 13,33

(21d

People v. Mcfarland, 10$ A.D.3d 1121

People v. Neer, 129 A.D.2d $29

(3rd

Dept. 2014)

39

(4th

58

Dept. 2013)

Dept. 1987), lv denied 70 N.Y.2d 652 (1987)

56

People v. Negron, 26 N.Y.3d 262 (2015)

62

People v. Nicholson, 10$ A.D.2d 929 (2 Dept. 1985)

63

People v. Oxley, 4 A.D.3d 1078

(3rd

Dept. 2009), lv. denied 13 N.Y.3d 941 (2010)

People v. Pierre, 51 Misc3d 1035 (Supreme Court Kings County 2016)

People v. Pinder, 269 A.D.2d 547

(2d

Dept.), lv. denied 94 N.Y.2d 951 (2000)

59, 60, 61
23
42

People v. Powell, 27 N.Y.3d 523 (2016)

27, 2$

People v. Primo, 96 N.Y.2d 351 (2001)

27,49

People v. Prochilo, 41 N.Y.2d 759 (1977)

People v. Salas, 136 A.D.2d 487

(1st

68

Dept. 1988)

52

People v. Salemi, 309 N.Y. 208 (1955)

33

People v. Schulz, 4 N.Y.3d 521 (2005)

49

People v. Scott, 93 A.D.3d 1193

(4th

Dept. 2012)

55

People v. Settles, 46 N.Y.2d 154 (1978)

59, 64

People v. Soto, 26 N.Y.3d 455 (2015)

People v. Smith, 16 A.D.3d 1081

(4th

People v. Stokes, 212 A.D.2d 986

59
Dept. 2005), lv denied 4 N.Y.3d $91 (2005)

33

Dept.), lv. denied $6 N.Y.2d 741 (1995)

6$

(4th

People v. Stroman, 83 A.D.2d 370 (1st Dept. 1981)

People v. Stubbs, 78 A.D.3d 1665

(4th

39

Dept. 2010)

54

People v. Tankleff 49 A.D.3d 160 (1st Dept. 2007)

35, 59, 67

(4th
Dept. 1999),
People v. Thidodeau, 267 A.D.2d 952
lv denied 95 NY2d 805 (2000)

People v. Valles, 62 N.Y.2d 36 (19$4)

Peoplev. Walker, 155 A.D.2d 916

(4th

1, 2, 11, 26, 32
21

Dept. 1989), lvdenied75 N.Y.2d $19 (1990)

III

39,40

Platt v. Lee. 9 A.D.2d 799 (3 Dept. 1959). 64

People v. White, 125 A.D.3d 1372

(4th

Dept. 2015)

33

People v. Willock, 125 A.D.3d 901 (2 Dept. 2015), lv. denied 26 A.D.3d 1012 (2015)
People v. Winchell, 129 AD.3d 1309

(3rd

Dept. 2015), lv.denied26 N.Y.3d 973 (2015)

People v. Wright. $6 N.Y.2d 591 (1995)

People v. Urlich, 265 AD2d $84

(4th

54
67
29, 30

Dept. 1999), appeal dismissed 94 NY2U 799

12, 13

FEDERAL CASES
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed2d 215 (1963)

1215, 1921, 23, 32, 70

Chambers v. Mississippi, 410 U.S. (1973)

59

Rock V. Arkansas, 483 U.S. 44, 56, 107 S.Ct.2704 (1987)

59

Stricklerv. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed2d 286 (1999)

13

Thibodeau v. Portuondo, 486 F.3d 61 (2 Cir.Ct. of App. 2007)

United States v. Scheffer, 523 U.S. 303, 308, 11$ S.Ct. 1261 (1998)

59

STATUTES
NYS Penal Law 215.40

66

NYS Criminal Procedure Law 30.10(2)(b)

66

NYS Criminal Procedure Law 440.10

1, 2, 12, 13, 19, 34, 47, 49, 67, 68

NYS Criminal Procedure Law 440.1O(1)(g)

33

NYS Criminal Procedure Law 440.10(1)(h)

69

NYS Criminal Procedure Law 440.30(6)

12, 21, 26, 32

iv

PRELIMINARY STATEMENT

During the early morning hours of April 3, 1994, Easter Sunday, 18-year old Heidi Allen was
abducted from the convenience store where she worked. Since that day, no member of her family or any
known person has seen or heard from her. She is presumed dead. Her remains have never been recovered.
Defendant, along with his brother Richard Thibodeau, were both charged with Heidis kidnapping.
Separate july trials were held for each brother. Defendants trial commenced on May 22, 1995 and ended on
June 19, 1995, when ajury unanimously convicted him of Kidnapping the first Degree, in violation of N.Y.
Penal Law

135.25. On August 7, 1995, Defendant was sentenced to 25 years to Life.

Defendant appealed his judgment of conviction, and this Court unanimously affirmed his conviction.
People v. Thibodeau, 267 AD2d 952, 953 (4 Dept. 1999), leave denied, 95 NY2d 805 (2000). Defendant
subsequently filed a habeus corpus petition, which was properly denied. Thibodeau v. Portuondo, 486 F.3d
61(2nd Cir. Ct. of App. 2007).
Pursuant to CPL

440.10, Defendant filed a Motion to Vacate Judgment of Conviction in Oswego

County Court on July 30, 2014. The People filed Affirmations in Opposition to the Motion on October 10,
2014. During the pendency of this matter, Defendant filed various other motions, which were properly
addressed by the trial court. The Hon. Daniel King, Acting Oswego County Court Judge, presided over a
CPL

440.10 Hearing that commenced on January 12, 2015

and ended on April 7, 2015.

On March 2, 2016, Judge King issued a final Decision and Order denying the CPL

440.10 motion

in its entirety. Defendant now appeals from that Decision.

By Order dated December 19, 2016, this Court granted permission for the People to file a 125-page
brief. That same Order also extended the time for the People to file a respondents brief until January 18,
2017. A copy of said order is attached to this brief.

STATEMENT OF FACTS
I.

TRIAL EVIDENCE

When this Court reviewed Defendants conviction on direct appeal, it correctly noted that there was
overwhelming evidence of defendants guilt. People v. Thibodeau, 267 AD2d 952, 953 (4 Dept. 1999),
leave denied, 95 NY2d $05 (2000) (emphasis added). This Court succinctly recapped the evidence against

Defendant as follows:
There was direct eyewitness testimony establishing that the victim was abducted from a
convenience store. The fact that defendant was one of the abductors was established by
his admissions to two jailhouse informants. Defendants admissions were corroborated by
proof establishing the presence of defendants brother and his van at the store at the time
of the kidnapping; by descriptions of the abductors; and by evidence placing defendant
and his brother together at various times that morning and the night before, all in
contravention of their alibi evidence.
While this Courts summary was accurate, to assist the present bench in evaluating the legal and
factual basis that compelled Judge King to deny Defendants CPL

440.10 motion, the People are providing

a brief review of the trial evidence below.

The teenage victim in this case, Heidi Allen, was working alone when she was kidnapped from the
D&W Convenience Store on Easter Sunday, April 3, 1994. (Tr. pg. 1131). She was wearing a pair of light
blue jeans and a gray sweatshirt that said Syracuse in green and blue plaid. (Tr. 1134).
At approximately 7:30 am that morning, John Swenszkowski left his home and drove to the D&W
store. On his way to the store, he observed a pretty beat up van that had a lot of rust on it. He initially saw
the van while travelling behind it on Eggleston Road, headed towards State Route 104. He noted that the van
had a distinctive license plate that began with the letters PU and contained the number 55.
Swenszkowski testified that he recalled thinking that the letters were very appropriate for the vans
appearance, which he described as Pretty Upsetting. (Tr. 121$, 122 1-23).
Swenszkowski passed the van after it turned on to State Route 104, and he proceeded to the D&W
store. When Swenszkowsi arrived, there were no vehicles in the parking lot. He proceeded into the store,
where he bought two newspapers and cigarettes. He recalled handing his money to a female clerk. (Tr. 122426). When Swenszkowski exited the store at approximately 7:42 am, he observed the same van that he had
2

passed earlier. (Tr. 1233-34, 1246). At trial, he identified a van belonging to Defendants brother, Richard
Thibodeau, as being the same van based upon its appearance, as well as its distinctive license plate. (Tr.
1246-48) As he walked past the van, he passed a white male who was shorter than him and weighed about
145 pounds. The male had a mustache and was wearing jeans and a t-shirt, with a ball cap pulled down over

his face. (Tr. 1235-36). This description fit Richard Thibodeau. (Tr. 2917).
When Swenszkowski exited the store, the van was parked parallel to the store. (Tr. 1234).
Swenszkowski believed the vans engine was on because he smelled exhaust. (Tr. 1237-123 8). Once he
reached his car and started to leave, Swenszkowski noticed that the van began to move at the same time,
going forward about 3 or 4 feet. (Tr. 1238). Both vehicles stopped initially, and after Swenszkowski drove
past, the van moved directly in front of the double door entrance at the front of the D&W. (Tr. 1239).
Swenszkowskis observations support a conclusion that at least two people were associated with the van--the
male who went in to the store, as well as the person who moved it in front of the doorway.
At approximately 7:30 am that morning, Christopher Bivens left his residence in Oswego and drove
East down State Route 104. (Tr. 1287-88). As he drove by the D&W, there was no traffic. He noticed that
it was raining with a little snow in the air. (Tr. 1289). As he slowed down in front of the D&W to make a
left turn, Bivens looked towards the D&W and noticed two white males, a white female, and a van in front of
the store. The male closest to the store was holding the female. (Tr. 1291-93). The other male was 5 to 10
feet in front of them, heading toward the van. (Tr. 1293). Bivens testified that the van was a Chevy C-10,
and he positively identified Richard Thibodeaus van as the one he observed. (Tr. 1298, 130 1-02).
David Stinson lived about a mile west of the D&W, and that morning he stopped by the store to buy
the Sunday paper on his way to his employers on site gym. (Tr. 13 97-98). When he arrived at the store at
7:41 am, there were no people or vehicles in the stores parking lot. (Tr. 1399-1400). No one was in the store
when Stinson entered, so he tried to find the clerk. (Tr. 1399, 140 1-02). He went outside to walk around the
store, but he saw no one. (Tr. 1405, 1410).
At that time, Swinson flagged down a marked Sheriffs car that was turning at the intersection in
front of the store. (Tr. 1411). The marked vehicle was operated by Oswego County Sheriffs Deputy Rick
3

Curtis, whom Stinson knew. (Tr. 1411, 1416). Stinson advised him that no one was in the store. (Tr. 1417).
Deputy Curtis testified that Stinson got his attention at 7:45 am. (Tr. 1422).
Nancy Fabian left her home in the City of Fulton around 7:12 am that day. (Tr. 171$). She took
State Route 3 in to the Village of Mexico, where she turned right onto State Route 104, headed toward
Interstate 81. (Tr. 1719-1720). The intersection of State Route 3 and State Route 104 is east of the D&W,
and just west of the intersection of State Route 104 and State Route 69 in Mexico. The weather was overcast
and hazy. (Tr. 1720).
At trial, Fabian testified that before turning making the turn at the intersection, she looked to see if
there was any oncoming traffic, as she was stopped at a red light. There was no traffic in either direction.
(Tr. 1720-21). After she turned right on to State Route 104 and had travelled about 100 yards, she noticed a
van coming up behind her very fast. (Tr. 1721-22). The van came within two or three feet of her rear
bumper, causing her so much concern that she asked her husband where the van had come from. The van
was swerving back and forth at that time. (Tr. 1724). She ultimately lost sight of the van a short distance
down the road, at the intersection of State Route 69 and State Route 104 in the Village of Mexico. (Tr. 1739).
Fabian positively identified Richard Thibodeaus van as being the same vehicle she saw that
morning. (Tr. 1732-33). Notably, she also testified that that she observed certain features of the person
driving the van. (Tr. 1726). The driver was white male with dark hair and a scruffy beard, as though he had
not shaved in a few days. (Tr. 1726, 1741). The drivers hair was over his shirt collar in the back, and bushy.
(Tr. 1729-30). This description matched the Defendant. (Tr. 2011, 2916).
Significantly, Fabian observed the driver trying to control something in the back of the van or push
something down in the back of the van. She saw him reach with his right arm and try to push something
down or back. Fabian informed the jury that at one point the driver turned completely around and thats
when he was going back and forth in the lanes because he was just trying to control whatever was going on
back there and trying to control the van too and he just wasnt doing a very good job. When the driver
turned around, he was not watching the road but was instead paying attention to whatever was in the back of
the van. (Tr. 1729). Based upon Fabians testimony, a jury could conclude that Defendant was driving his
4

brothers van and was speeding away from the D&W on State Route 104 while trying to control Heidi Allen,
who was struggling in the back of the van. Fabians testimony took on greater importance in light of the
testimony of Donald R. Neville, Sr..
On the day of Heidis kidnapping, Donald R. Neville, Sr. lived on Kenyon Road in the Town of
Mexico. (Tr. 1779). He lived on the opposite side of the road from Defendant, and their neighbors included
the Cowens and the Links. (Tr. 1780-8 1). At approximately 7:30 am that Easter Sunday, Neville left the
house to go the Kwik Fill at the intersection of State Route 69 and State Route 104 in the Village of Mexico.
He drove past Defendants house. (Tr.1785, 1788-89). While at the Kwik Fill, he observed a van turning
from State Route 104 on to State Route 69. (Tr. 1788-89). (It was after this intersection that Nancy Fabian
lost sight of the van.) Neville immediately recognized the van because he had seen it at Defendants home
before. In fact, Neville believed the van actually belonged to Defendant. (Tr. 1789). At trial, Neville
identified Richard Thibodeaus van as being the same van that he saw that morning. He testified that he saw
the van at Defendants home at various points on Easter Sunday of 1994. (Tr. 1797-99).
Additionally, around 9:00 am, Bill and Sue Cowen both observed Defendant speaking with a gray
haired man, who was sticking his head out of the passenger side of a van that was parked on the side of the
road near Defendants residence. Although both Bill and Sue Cowen described the van that they saw that
morning, which matched the description of Richard Thibodeaus van, they couldnt positively identifS the van
as being the same one. (Tr. 1872-76, 1880-8 1, 1914-19, 1933-34). Once more, Richard Thibodeau had gray
hair. Accordingly, Mr. & Mrs. Cowens testimony supported the conclusion that Defendant was speaking
with his brother, who was inside of the van in front of Defendants home.
Donald Scott Neville, the son of Donald Neville Sr., went outside his house on Kenyon Road around
10:30 am on Easter Sunday of 1994. (Tr. 1961). After he was outside for about 15 minutes, he heard a real
violent argument between a male and a female voice coming from the direction of Defendants residence,
and it lasted about a half hour. (Tr. 1963-64). At one point, he went inside and came back out with his
brother, Mike. (Tr. 1964). According to both Mike and Donald, the yelling and screaming continued after
they came back outside. (Tr. 1964, 1984). Based upon the cumulative evidence, and in the absence of any
5

explanation from defendant, the jury could have reasonably concluded that the female voice belonged to
Heidi Allen.
While Defendant characterizes the prosecutions case as circumstantial, perhaps the most compelling
proof against Defendant came from his own incriminating statements, which constitutes direct evidence.
Both Robert Baldasaro and James McDonald testified that they were incarcerated with Defendant in the
Worcester House of Corrections, located in Massachusetts (Worcester Jail), during which time Defendant
made incriminating statements to them. Significantly, neither of these men received any benefit for their
testimony (i.e. more favorable plea or sentence), so there was no incentive for them to falsely implicate
Defendant. (Tr. 1557, 1587-89, 1697, 1707). There was no quidpro quo in exchange for their testimony. In
the absence of any motive to fabricate, the testimony of Baldasaro and McDonald became more credible and
took on greater significance.
In May of 1994, Baldasaro was being held at the Worcester Jail. (Tr. 1529). After he was there for
about 1-1/2 month, he met Defendant. (Tr. 1533). James McDonald was also on the same cell block. (Ir.
1534-35). While they were incarcerated together, Baldasaro had a number of conversations with Defendant.
(Tr. 1535-36). Within a few days of Defendants arrival, the three men were in McDonalds cell when
Defendant mentioned why he was there. (Tr. 153 8-39). Defendant said that people in New York believed
that he was involved in kidnapping a girl from a convenience store. (Tr. 1539). Baldasaro asked, what do
you mean they think youre involved in kidnapping a girl from a convenience store? (Tr. 1540). Defendant
responded that he and his brother were with her that morning and they were the last ones with her and
somebody was going to find out, so they thought he was involved with it. (Tr. 1540). Baldasaro asked
Defendant if he was involved, to which Defendant responded No, and if I was, I wouldnt tell you anyway.
(Tr. 1450). This conversation lasted about ten minutes. (Tr. 1540-41).
After lunch that day, Baldasaro had another conversation with Defendant in McDonalds cell. (Tr.
1541-1542). At that time, Baldaraso said to Defendant, cant they just have you

you know, put you in a

line-up and have the girl point to you and say, you know it wasnt you that grabbed her or anything like
that? (Tr. 1452). Defendant responded she wouldnt be able to do that. (Tr. 1452). Baldasaro asked why
6

not, and Defendant replied, Because she is dead. (Tr. 1542-43). When asked how he knew that,
Defendant replied that he just knew. (Tr. 1542-43).
The next morning, Baldasaro and Defendant had another conversation in McDonalds cell. Baldasaro
suggested that since the victim was taken out of the store maybe they can check for fingerprints to see who
grabbed her. (Tr. 1543-44). Defendant responded They cant check for any fingerprints because there
wasnt any struggle. Whoever she knew

left with, she must have knew. (Tr. 1544).

In this same

conversation, Baldasaro asked Defendant how he was involved, to which Defendant replied that he and and
his brother went down to talk to her because she was upset and they wanted to fry and straighten things out,
that she thought that they were
upset so they went down

Gary was going to fry to screw her about something and she was really

they wanted to have a conversation with her. (Tr. 1544). Defendant told

Baldasaro that they took his brothers van to the store, although he never mentioned his brothers name. (Tr.
1545).

Defendant explained that they got in the van, they drove up by the woods by his house, they talked
to her. (Tr. 1544). Defendant said that the female was really upset when they were in the woods and that he
tried to calm her down. Once she calmed down, Defendant went to his house, at which time his brother
drove this girl back to the store and dropped her off. (Tr. 1544-46). After dropping her off his brother
remembered that he forgot to get cigareftetes. When he went back to the store, no one was there. (Tr. 1544).
Defendant also told Baldasaro that his brother went back to his house and called Gary up on the phone and
told Gary that it was just on the news that somebody was

that the girl that they were with was just taken out

of the convenience store. Tr. 1546).

In the few days following that conversation, Baldasaro repeatedly asked Defendant if authorities had
found the girl or if she had shown up to clear him. Defendant simply replied that she was dead and they
would not find her. (Tr. 1549). At one point, Baldasaro asked Defendant how did she die? Defendant
responded that she had been bashed in head with a shovel and she was mutilated. (Tr. 1550). When
Baldaraso asked Defendant how he knew this, Defendant responded, Well, they are accusing me of doing it.
If I was going to do it, thats how it would have been done. (Tr. 1550). Baldaraso walked away without
7

any further conversation at that time. (Tr. 155 1-1552).

Baldasaro testified that approximately two days later, Defendant appeared upset and said that the
police in New York were messing with him, and he had to hurry up and get out of here. (Tr. 1553). In
another conversation, Defendant advised Baldasaro that the police were still messing with him and had found
bones and some clothing in his furnace. (Tr. 1582-83) Defendant claimed that the bones were chicken or
squirrel bones and the clothing was an old carpet he was burning. (Ir. 1583). However, Defendant then
asked, If I did burn somebody in a furnace, they wouldnt be able to tell, is that correct?

Baldasaro

advised Defendant that teeth do not burn. (Tr. 1584).

Baldasaro testified that Defendant never mentioned the name of the girl involved. (Tr. 1553-1554).
However, on the day he was released, Defendant told Baldasaro to keep his mouth shut about everything that
Defendant had told him. (Tr. 1558).
James McDonald was incarcerated in the Worcester Jail for a D.U.I. between 5/25/94 and 7/8/94.
(Tr. 1647). A few days after Defendant arrived, while in the presence of Baldasaro, McDonald spoke with
Defendant about why he was in jail. (Tr. 166 1-62). Defendant said he was being held on drug charges and
that there was no bail. Additionally, Defendant stated that he and his brother were being investigated for the
disappearance of a girl in New York at a convenience store. (Tr. 1662). When asked why he was being
investigated, Defendant said that they went to the store early that morning to purchase cigarettes. further,
Defendant acknowledged that they went to the store in his brothers van. (Tr. 1663).
A few days later, the three inmates had another conversation in McDonalds cell, during which
Defendant stated that the girl had been killed with a shovel. (Tr. 1663-65). Upon questioning by McDonald,
Defendant said it was his shovel, and he described it as an Army fold-up kind of shovel. (Tr. 1666).
Defendant told McDonald that he struck the girl in the head. (Tr. 1667). Defendant ultimately told
McDonald that authorities would never find her, although McDonald could not recall exactly when
Defendant made that comment. (Tr. 1667-69). According to McDonald, Defendant also said that the girl
was into coke and they did coke together. (Tr. 1688-89).

Significantly, the testimony of Baldasaro and McDonald were consistent with each other and
established that Defendant and his brother had direct contact with Heidi Allen on the morning of her
disappearance. While Defendant disparages the testimony of these two men and characterizes them as
nothing more than jail house snitches, its important to remember that they received no consideration for their
testimony. Further, in evaluating their reliability, its worth noting that neither man claimed that Defendant
directly admitted to kidnapping and killing Heidi Allen. While the statements they attribute to Defendant are
suggestive of wrongdoing, they never claimed that he outright confessed to the crime. If these two men were
simply fabricating the described conversations with Defendant, why wouldnt they simply claimed that he
made a direct admission? Put simply, the fact that their testimony was not more harmful to Defendant
actually makes them more trustworthy.
Ironically, the case against Defendant was strengthened by the testimony of David Nelson, who was
called as a defense witness. Nelson testified the Defendant called him at about 9:30 am the morning of the
kidnapping and told him that Heidi Allen was missing from the D&W Convenience Store, specifically
mentioning her by name. (Tr. 2482-83). Notably, a local CBS affiliate, WTVH-5, aired the first public news
report about a missing girl between 10:30 am and 10:45 am on Sunday April 3, 1994. Heidi Allens name
was not broadcast at that time. (Tr. 3246-3249). Consequently, through the testimony of Nelson, the jury
learned that Defendant knew and disclosed that Heidi had been kidnapped an hour before that information
had been made public. The only way for him to know that information was if he was involved in the crime.
Significantly, Heidi Allen was not a stranger to Defendant. Brett Law, who was Heidis boyfriend at
the time of her abduction, testified that he helped her open up the store that morning. (Tr. 1131, 1134). He
left the store around 6:35 am, never to see or hear from his girlfriend again. (Tr. 1137, 1148-49). Law
further testified that he first met Defendant approximately 5 months prior to Heidis disappearance while at
Becks Hotel, a local restaurant / bar. He had interacted with Defendant in social settings approximately 1012 times prior to the kidnapping, and Heidi was with him on 4-5 of those occasions. Defendant knew Heidi
by name and exchanged greetings with her. According to Law, Defendant repeatedly commented to him
about Heidi being attractive. (Tr. 1150-54).
9

Significantly, Brett Law also testified about an encounter that took place between he and Defendant
at the search center a few days after Heidis disappearance. Law saw Defendant with his girlfriend
and a
male, who Law did not know at the time. At the time of trial, Law testified that he now knew the
male to be
Richard Thibodeau. However, on the described day at the search center, Defendant did not introduce
Richard as his brother. Instead, Defendant attempted to distance himself and only referred to Richard
as his
friend. Defendant indicated that authorities had kept bugging his friend because he was the
last person
in the store. (Tr. 1154-56). Certainly ajuly could have concluded that Defendants attempt to disguise
his
familial relationship was indicative of wrongdoing.
Notably, Defendant testified on his own behalf at trial. Consequently, the juiy had an opportunity to
observe his demeanor and assess his credibility. At trial, Defendant claimed that he was at home with
his
girlfriend and her children between the hours of midnight and 10:00 am that Easter Sunday. Despite all
of
the prosecution witnesses who put Defendant and Richard Thibodeau together that morning, Defendant
denied being with his brother at all that day. (Tr. 2752-53). While neighbors described frequently seeing
Richards van at Defendants home, Defendant took pains to distance himself from his brother. He claimed
minimal contact with Richard during the relevant period, stating they were never that close. (Tr. 2766).
Although Defendant denied being with his brother during the morning hours of April 3, 1994, his
testimony was directly contradicted by that of Maiyanne Montgomery, who worked as a bartender at
Thompsons bar in the Town of Scriba. Montgomery testified that Gary and Richard Thibodeau were at the
bar drinking together several hours before Heidis kidnapping. She testified that the two men left the bar
between 12:00 and 12:3 0 am that morning. Montgomery observed the two men walk across the parking lot
and get into an older van. She was certain about the date, explaining that she recalled going home to fill
Easter baskets for her kids when she left work at 2:30 am. (Tr. 2 133-36).
Defendant also testified about his jail conversations with Baldasaro and McDonald. While the
defense describes these men as unreliable and untrustworthy, Defendant acknowledged that portions of their
testimony were truthful. Defendant admitted telling them that his brother was a suspect because he had
purchased cigarettes and was the last person on the register tape. He admitted telling them that there wasnt a
10

struggle, although he claimed he was oniy repeating information that was in the newspaper. Defendant also
admitted to discussing his furnace and stating that his furnace had blown up because he had burnt rugs and
chicken bones in it. Most interestingly, he acknowledged specifically telling Baldasaro and McDonald that
authorities would not find Heidi Allen in the furnace, a strange statement for someone who was not involved.
Defendant even admitted that they had a discussion about someone being hit by a shovel, but he denied
that it related to Heidi, instead claiming that it was a reference to the O.J. Simpson case. (Tr. 277 1-76).
Although Defendant called other witnesses to establish an alibi defense, as this Court noted on the
direct appeal, that defense was undermined by multiple witnesses who saw Defendant with his brother both
the evening before and the morning of the abduction. Thibodeau, 267 AD2d at 953. The trial juiy was
able to directly assess Defendants explanations against the weight of the reliable evidence put forward by the
prosecution. Moreover, the jury observed Defendant and were able to evaluate his credibility firsthand.
Based upon the verdict, it is clear that the jury did not find Defendant to be trustworthy. Further, a review of
the trial testimony reveals that the reliable, competent, and credible evidence overwhelmingly established
Defendants guilt. For this reason, the jurys verdict should be accorded great weight, and this Court should
not disturb that finding based upon the information presented at the hearing below.

II.

HEARING EVIDENCE

Rather than providing a lengthy summary of the hearing testimony, which was thoroughly discussed
and analyzed by the hearing court in the challenged Decision and Order, the People will instead reference the
relevant testimony when addressing the legal issues raised herein.

11

ARGUMENT

POINT I:

DEFENDANT FAILED TO ESTABLISH THAT THE PEOPLE WITHBELD

EXCULPATORY EVIDENCE OR THAT PREJuDICE AROSE FROM TilE
ALLEGED SUPPRESSION

The Hearing Court properly denied the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 LEd2d
215 (1963), portion of Defendants CPL

440.10 motion, fmding that:

1) Defendant was aware of Ms.

Allens status as a confidential informant; 2) the People had provided documents to Defendant; and 3) the
evidence of Ms. Allens status and her card being dropped was too remote and speculative to have been
admitted into evidence at defendants trial. (Appendix (A) 12-28). The hearing court correctly decided this
issue after evaluating the testimony of witnesses, and this Court should uphold Judge Kings ruling.
On appeal, Defendant maintains that the People failed to disclose the narrative reports dated
December 8 or 9, 1994 of Deputies Michael Montgomery (Hearing Exhibit (HE) 8, A 2342), Christopher
Van Patten, (HE 9, A. 2343), and Michael Anderson (HE 10, A. 2344); and a report Investigator Nicholas
Kleist with evidence tag and attachments dated May 16, 1995 (HE 11, A.2345-2347, and HE hA, A 234823 58). Additionally, Defendant originally contended that the People failed to provide a report of Sgt. Roy
Lortie (HE 5, A 2278-2287).
In a CPL Article 440 motion, the burden of proof rests on Defendant to establish by a
preponderance of the evidence every fact essential to support the motion. CPL 440.3 0(6). See also People
v. Urlich, 265 AD2d 884, 885

(4th

Dept. 1999) appeal dismissed 94 NY2d 799. This Court held in People v.

Urlich, that the testimony of defense counsel that he did not remember receiving documents is inadequate to
sustain the burden when the prosecutor and the record controvert the defense counsels memory. People v.
Urlich, 265 AD2d at 884-85. In Urlich, the defendant filed a 440.10 motion claiming that certain notes of a
firearms examiner were not disclosed by the prosecution. At the CPL 440.10, defense counsel testified that
he had no recollection of receiving a copy of the witnesss notes; and further stated that, the reason I
dont believe I got a copy is that when I looked through my file specifically looking for the notes, I could not
find them. Id. at 884. In contrast, the People offered the testimony of the trial prosecutor, and several
portions of the record corroborating that recollection.

at 884-85. This Court held that defendant failed to

12

meet his burden of establishing by a preponderance of the evidence that defense counsel
was not furnished
with the notes. Id. at 885. As will be more fully discussed below, Defendant only evidence
of non
disclosure was: 1) the faulty memory of the trial counsel, Joseph Fahey, and 2) the fact that
appellate
counsel, Randi Bianco, did not find the materials in the file twenty years later. (Hearing
Transcript (HT) 3147, 137-146). In contrast, the People offered the specific recollection of the trial prosecutor,
Donald Dodd,
(HI 1670), notes of Donald Dodd, (HE

QQQ, A 2908-11), and portions of the trial transcript showing that

defense counsel used items he claimed not to have received in cross-examination (HT 922-924;
TI 1439,
1455-56). Consequently, Defendant has failed, as the defendant in Urlich failed, to prove
that the People
suppressed the questioned documents.
On appeal, a hearing courts determination is entitled to great weight. People v. Urlich, 265
AD2d at
884 (citing People v. Jackson, 198 AD2d 301 (2 Dept. 1993) lv denied 83 NY2d 806
(1994)). It is well

settled that issues of credibility are primarily questions to be determined by the finder of facts,
who saw and
heard the witnesses. Moreover, it is equally well established that the hearing courts determinatio
n will
generally be accorded great weight on appeal and will generally not be disturbed unless clearly
unsupported
by the record. People v. Jackson, 198 AD2d at 302. This Court has applied the same standard of
review in
440.10 motions. People v. Lard, 71 AD3d 146$

(4th

Dept. 2010) lv denied 14 NY3d $89 (2010). The People

submit the record below supports the Hearing Courts decision that Defendant did

prove by a

preponderance of evidence a violation of Brady v. Maryland.

To establish a Brady claim, Defendant must establish, by a preponderance of evidence, that (1) the
evidence is favorable to the defendant because it is either exculpatory or impeaching in nature;
(2) the
evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence
was
material. People v. Garrett, 23 NY3d 878, $85 (2014). The People.

have a broad obligation to disclose

exculpatory evidence, but a mere breach of this duty does not offend the defendants due process rights
unless all the components of a true Brady violation are established.

at 8 84-85 (citing Stickler v. Greene,

527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). A review of the hearing testimony

demonstrates that Defendant failed to establish any of these three factors, and his failure to meet any
one of
13

these requirements is fatal to his argument. Since the sine qua non of any alleged Brady violation is the
suppression of the evidence, the People will examine that factor first, and thereafter review the remaining

two factors.
The Hearing Court credited Donald Dodds testimony that he in fact provided the referenced
documents, which were Exhibits 8, 9, 10 and 11. (A 16-23). Specifically, the Hearing Court held that
based upon Faheys understandable inability to recollect certain documents which he had in his possession

twenty years ago, it cannot be held that the People committed a Brady violation based upon the fact
that Fahey did not recall having received those documents prior to testifying at the hearing and in
spite of his admittedly vague memory of the case. (A 16) (emphasis added).
Any analysis of an alleged Brady violation begins with an understanding of what it means for a

material to be suppressed. Brady does not, however, require prosecutors to supply a defendant with
evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory
nature. People v. Doshi, 93 NY2d 499, 506 (1999). As this Court has said it is well settled that evidence
is not deemed to be Brady material when the defendant has knowledge of it, and here the record establishes
that defendant was aware [of the evidence in question] People v. Archie, 7$ AD3d 1560, 1562

(4th

Dept.

2010) leave denied 16 N.Y.3d 856 (2011) (internal quotation marks omitted).
Initially, the record contains abundant evidence that the materials in question were turned over to the
defense. The trial prosecutor, former District Attorney Donald Dodd, and retired Investigator Terry Whipple
both testified about the process put into place to ensure that the all materials were copied and turned over to
the defense. (1ff 1638-42, 148 1-88). As explained by both witnesses, when the case reached the discovery
phase, the file was brought to the District Attorneys Office to be copied. After each individual report,
statement, or piece of paper was copied, the original was marked with a green mark. In situations where a
number of pages were stapled or grouped together, then the first page was marked with green mark. (HE
MMM. A 2838-39, HT 1638-42, 148 1-83). This procedure continued through the trial. (HT 163$).
The copies for both defense attorneys were made at the same time and in this matter. This procedure
acted to insure that the entire file was copied for discovery because each of originals in the Sheriffs
14

Department file would contain a green mark. A piece of paper in the file without corresponding green mark
would signify that the paper needed to be copied and disclosed. Each of the challenged documents that the
People retrieved from the Sheriffs file and admitted into evidence contains a green mark establishing that
they were copied for discovery. (A. 2886-2889).
Dodds testimony was direct and expLicit with regard to turning over Exhibits 8, 9, and 10.
Significantly, the People admitted Exhibit QQQ, a photocopy of all three exhibits that Dodd used in his
preparation for discovery and trial. (A. 2908-10). On it Dodd wrote MY COPY, HA BRADY CC
TOT BOTH D ATTN. (HT 1664-70, A 2908). Dodd explained that this meant that this was his copy; he
understood it was potentially Brady material; and that copies had been turned over to both defense attorneys.
(HI 1668-70). These documents were turned over on December 14, 1994 as part of the eight boxes of
materials constituting the Sheriffs Department file. (HI 1670). Dodds notes on the Exhibit
QQQ and his
testimony provide clear proof that the documents were turned over.
To understand Dodds certainty about the documents being turned over, it is important to note
exactly how and why Exhibits 8, 9, and 10 were created. At motion argument on December 8, 1994, the
subject of Ms. Allens confidential informant status was discussed. Immediately after that court appearance,
Dodd meet with investigators from the Oswego County Sheriffs Department. Dodd testified that the
meeting was specifically to discuss the issues raised in the December 8 court appearance. (HI 1662).
According the testimony and notes of mv. Herb Yerdon, the topic of that meeting was Brady material.
(HI 2286-87). As a result of this meeting, Deputies Montgomery, VanPaften, and Anderson wrote the
documents that are Exhibits 8, 9, and 10, respectively. (HI 1938, 1979, 1999).
It defies logic to believe that Dodd: (i) had the meeting with officers; and (ii) specifically had those
deputies create those reports; and then (iii) not turn them over. The Hearing Court found that sequence of
events to not make sense. (A 21). In fact, in order to rule in favor of Defendant in this matter, this Court
would be required to adopt an additional illogical inference--that the material was turned over iy to
William Walsh, the attorney for co-defendant Richard Ihibodeau. The materials and information were
unquestionably turned over to Walsh, because Bianco testified that is where she found these documents. (HI
15

3 1-37). The idea that the prosecution provided documents to one attorney but not the other is especially
illogical given that both Fahey and Walsh were sharing information, and since Walsh actually sat, with his
own file, at the defense table during Defendants trial. (HT 915, 1599, 1605). Indeed, Fahey actually used
documents from Walshs file during appellants trial. (FIT 1604-05).
Defendant attempts to disparage Dodds testimony by raising several collateral matters. Defendant
attempts to argue that the lack of date stamps show the reports were not turned over. Defendant ignores the
various exhibits that were unquestionably turned over that did not contain date stamps. for example, the lead
sheet and associated paperwork regarding Leland Needle and Roger Breckenridge contains no date stamps at
all, and Fahey unquestionably had those items. (HI 943-949, A 2785-9 1). Likewise, Defendant argues Dodd
failed to put a date on Exhibit QQQ, when it was turned over to both attorneys. This argument is rather
hollow, because Dodd made a specific notation and wrote that it was turned over to both D attn.
Defendant focuses on the lack of a date on

QQQ because he is improperly attempting to shift the burden to

the People to prove the materials were turned over. Certainly, a date on

QQQ would be helpful to show

when the documents were turned over, but the absence of a date does not support non-disclosure.
With regard the Kleist report and accompanying documents, contained in Exhibit 11 and 1 1A, the
record contains abundant evidence that the materials were disclosed. Exhibit 1 1A consists of a cover letter
dated May 17, 1995 and enclosures. (A 2348-57). Exhibit 11 consisted of the Kleist report, an evidence log
sheet, and photocopy of the evidence tag from 11. (A. 2345-47). The original exhibits were admitted at the
hearing as Peoples Exhibit B. (A. 273 8-2762). Additionally, the copies of the letter and reports with the
green mark were admitted into evidence as Exhibits JJJ, LLL, and SS. (A. 2808-19, 283 1-2834, 2914-3022).
The best evidence buttressing the Hearing Courts decision is the existence of the materials in the file
of the trial judge/court. Dodd testified that in addition to both defense attorneys, discovery was being
provided to the Oswego County Court. (1ff 1640). At the request of both parties, the Hearing Court
examined the contents of original trial courts file. (HI 1642-1645). Exhibit hA reflects that it was copied
to Judge Lee Clary. (DE 101).

The Hearing Court reviewed the trial courts file and found the letter of May

17, 1995 letter. (A 20-2 1). The Hearing Court went on to hold that:
16

further, despite the fact Bianco testified that she had not seen the May 1995 letter and the
attached index card and handwritten notes until 2014, it is clear, upon a review of the trial
courts file, that the trial court received this same letter sent to defense counsel on May 23,
1995. It is contrary to logic to argue that the trial court received this letter on May 23, 1995
but that neither trial counsel received it without the attached documentation.
(A 2 1-22). The People would argue that the presence of the letter and documentation is convincing proof
that the People turned over Exhibit 11 and 1 1A to defendant.
In an effort to make the Hearing Courts clear and simple holding seem vague and ambiguous,
Defendant argues that the Hearing Court never specifically said what it found with the May 17, 1995 letter,
and therefore its holding is erroneous. The Hearing Court found the same letter sent to defense counsel
and held that it would defy logic to argue that the trial court received this letter on May 23, 1995 but that
neither trial counsel received it without the attached documentatiou. (A 2 1-22) (emphasis added).
Clearly, the Hearing Court reviewed the May 17, 1995 letter, and it had documentation attached.
Defendant wants this Court to defy logic by assuming that the Hearing Court, when reviewing the
trial courts file, (i) found the same letter; and (ii) that the attachments to the same letter of May 17, 1995
were different or non-existent; (iii) that the Hearing Court would not mention that fact in its decision; and,
finally, (iv) the Hearing Court would deceive this Court, the public, and the parties by holding, or at very
least inferring, that the attachments were disclosed to the trial court. The Hearing Court reviewed the trial
courts file because the People and Defendant were seeking information about whether the disputed
documents are in the Court file, because that would be significant evidence that they were in fact turned
over to all parties concerned. (HI 1643). Essentially, Defendant argues that Judge King deliberately
deceived both sides.
The Hearing Courts decision and the record explain the sending of the May 17, 1995 letter; the
sending of the June 5, 1995 letter; and the double date stamps. The Hearing Court wrote Investigator
Whipple testified that mv. Herbert Yerdon and Kleist were tasked with frying to find the documentation on
Ms. Allen and once they found it, they were directed to bring it immediately to the District Attorneys Office
so that it could be turned over. (A 21, HI 1503-04). The evidence and testimony from

thy.

Kleist, and

Dodd corroborate that the Kleist report and attachments were brought to the District Attorneys Office on
17

May 16, 1995. (HI 1678-79, 2244-45). The May 17, 1995 letter with attachments was sent out the next day
by Dodd. (HI 1678-79). The materials were then returned to the Sheriffs Department and placed in mv.
Whipples inbox. (HI 1503-06). Whipple then filed the documents, copied them, and sent them back up to
the District Attorneys Office pursuant to the internal procedures he established. (HI 1678-79). The second
Kleist report, containing the two date stamps, was sent out with the June 5, 1995 letter. (HI 168 1-95)
Therefore, the materials were actually sent twice to both defense attorneys--once when the District Attorneys
Office first obtained the items, and then again after the Sheriffs Office received and stamped it.
Defendant argues that because Exhibit 1 YA was not found in Walshs file, this is proof of non
disclosure. At the outset, this Court should be mindful that 20 years passed before Bianco looked in Walshs
file. Certainly it is possible that documents were removed or lost in the intervening 20 years. (Notably,
Defendant did not establish chain-of custody for the file during that period. Nor did he establish who had
access to the file for two decades.) Additionally, Walsh testified that he kept somethings for himself before
he turned the file over to his client, possibly duplicates of documents that were in the file. (HI 1607).
For all practical purposes, Defendants proof that the challenged documents were not disclosed
consisted exclusively of his trial attorney, Joseph F ahey. On these points, Faheys testimony was based
solely upon his memory from 20 years ago. (HI 921). Specifically, Fahey testified on cross-examination:

Q. So youve never gone through [the file] on your own to determine whether any of these
documents that were discussing here today are actually in the file, is that accurate?
A. Yes, thats accurate.

Q. Were solely here youre solely here based on your own memory, is that accurate?

A. Yes.
(HI 921). This memory was repeatedly shown to be mistaken and faulty. In his original affidavit in support
of the motion, Fahey stated that he he could say with certainty he had never seen the reports of Dep.
Montgomery, Dep. Van Patten, Dep. Anderson, Sgt. Lottie, and mv. Kleist. (A 229-3 0). Fahey further
stated that he had never heard of, nor was he provided with, reports regarding Roger Breckenridge, Dan
Barney, Michael Bohrer, and James Steen. (A 230).

18

The first indication of Faheys faulty memory occurred shortly after the CPL

440.10 motion was

filed. Fahey s initial affidavit stated he had never heard of Roger Breckenridge. (A 230). However, shortly

after that affidavit, he filed supplemental affidavit because he learned that Roger Breckenridge was on his
witness list for the trial. (A. 268). Likewise Faheys initial affidavit stated he had never heard of Dan
Barney. However prior to trial, Fahey filed a motion with an exhibit that specifically mentioned Barney. (A
2879).
At the hearing, Defendants hearing counsel showed Exhibit JO (A 2344), the report written by
Deputy Anderson, to Fahey. (HI 139). When asked if he had ever seen Exhibit 10 while representing
Defendant, Judge fahey responded, I dont recall ever seeing the document, but I am--I was familiar with
the information contained in it. (HI, p.139). Although the questioning became somewhat confusing, Judge
fahey ultimately seemed to acknowledge once again that he previously was familiar with the content of the
Anderson report. (HT 141-142). Since, Fahey admittedly had knowledge of the contents of Andersons
report, Defendant has failed to prove a Brady violation in regards to Exhibit 10.
The most significant memory lapse by fahey, however, involves the Lortie report. In his original
affidavit, Fahey claimed he never received or even saw the Lortie report. (A 230). At the hearing, Fahey
testified that the not seen the Lortie report prior to the summer of 2014. (HT 920). The Lortie report is
located on pages 9-10 of the 10-page document admitted as Hearing Exhibit 5. (App. 2278-2287). At
Defendants jury trial, Fahey marked a 10-page document for identification as Trial Exhibit M, and he used it
during the cross-examination of Deputy Richard Curtis. (HT 922, TT 1439). Specifically, fahey used page 7
of trial Exhibit M (containing the time Deputy Curtis arrived at the D&W), and the bottom of page 8
(containing the height and weight of Heidi Allen). (1-11 922-924, TI 1439 AND 1455-56). At the hearing
below, Fahey acknowledged that pages 7 and 8 of Hearing Exhibit 5 contained exactly the same information
as the exhibit he used at trial. (HI 924). Eventually, the following colloquy took place during Faheys crossexamination:

Q. So you marked at trial an exhibit that has ten pages that on the bottom of page seven

discusses the discusses what time Deputy Curtis showed up on scene, and that at the
bottom of page eight discusses the height and weight of Heidi Allen, and on page nine and

19

ten has the Roy Lortie report. Isnt it quite possible that Exhibit M is the same exhibit you
hold in front of you?
A. It is.
(HI 924). He later agreed that he apparently had seen the Lortie report prior to trial. (HI 950). Therefore,
the significance of Faheys testimony must be viewed through the prism of his failure to remember
documents that he used at trial. If he failed to remember receiving a report that he used at trial, his failure to
remember receiving other documents does not establish non-disclosure.
Faheys failure to remember that he had the Lortie report and used at trial has significant
consequences on every single aspect of defendants Brady claim. Ms. Bianco testified that she never saw the
Lortie report and did not fmd it in faheys file. (HI 69, 76). Since Fahey use that report at trial as Exhibit
M, it is clear he possessed it at some point, if that report was not in faheys trial file when Bianco examined
the file, it can be inferred that the document was lost or misplaced since the trial.
If an exhibit that was used at trial is missing from Faheys file, then this Court must question whether
any of the other documents Defendant now claims he did not receive are also missing from Fahey s file.
Additionally, Faheys possession of the Lortie report establishes his knowledge of the material and
information that Defendant claims to have not known about. Although Defendant claims ignorance, the
Lortie report clearly establishes that Heidi Allen possessed some type of confidential informant status. (A
2286-87). Equally important, it establishes the existence of a confidential informant file that would include
names of dealers that ALLEN (sic) would have been involved with. (A 2287). The report goes on further
and states that Deputy VanPatten then called the office and had someone check his mailbox. The file was
located and brought to the crime scene. (A 2287). Therefore, Fahey almost certainly knew of Ms. Allens
confidential informant status, whatever the parameters of that status were, and the existence of her file. As
the Court of Appeals has stated, Brady does not, however, require prosecutors to supply a defendant with
evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory
nature. People v. Doshi, 93 NY2d 499, 506 (1999). Defendants knowledge of this material at the time of
trial is fatal to his claim.

20

As established at the hearing, Faheys organizational habits corroborate the inference that he may
have misplaced Trial Exhibit M and other documents. Attorney William Walsh testified regarding the
condition of faheys file at one point prior to trial. As described by Walsh, fahey had his filed spread out
all over his attic and there were papers everywhere. (HT1603). further, it is noteworthy that although
fahey had his file at Defendants trial, Walsh also brought his organized flIes as a backup measure. There
were times during the trial when Fahey couldnt locate a document in his file, so Walsh had to fmd a
document from his file. Notably, Walsh testified that when Fahey would finish with a piece of paper at trial,
hed toss it on the desk, at which point Walsh would scramble to get it to put it back in his file. (HT,
1604-05). Relatedly, Ms. Bianco testified that Faheys office was not organized and neat. (FIT 99).
fahey was the principle Brady witness for Defendant. The other Brady witnesses called by
Defendant, Bianco and Investigator Robert Calver, had no knowledge of what was in the file prior to trial.
(HI 70, 99, 183). Faheys faulty memory was not credited by the Hearing Court, and should not be credited
by this Court. His memory has proven to be inaccurate on too many levels for Defendant to have
established, by a preponderance of the evidence, that he did not receive the documents. The Hearing Court
found based upon the evidence presented, Defendant failed to meet his burden that the materials were not
disclosed. The Hearing Court had the benefit of viewing and judging each witnesss credibility. Moreover,
while the People had no burden of proving actual disclosure at the hearing, the record is replete with
evidence that the materials were disclosed. Therefore, since the Hearing Courts determination is supported
by the record, it should be accorded great weight and not be disturbed. People v. Jackson, 198 AD2U at 302.
Assuming, arguendo, that Defendant did not receive the material, he must also establish that
evidence was exculpatory or impeaching in nature. People v. Garrett, 23 NY3d at 885. Defendant has failed
to prove this element by a preponderance of the evidence. CPL

440.3 0(6).

Initially, Ms. Allens status as a confidential infonuant, however that may be defined, was not
impeaching in nature because it could only be used to impeach her credibility. As such, the information
must be exculpatory evidence in order to be Brady. Exculpatory evidence is evidence that, if believed, may
result in no criminal liability for the defendant.

cf! People v. Valles, 62 NY2d 36, 38 (1984) (defining an

21

exculpatory defense). Defendant bears the burden of establishing that the information may have resulted a
finding of no criminal liability.
Heidi Allen met with Deputy VanPatten on December 11, 1991, and separately with Deputy
Anderson shortly after that date to speak with them about drugs. (HI 1927, 1973-74). VanPatten described
her information as rumor mill or what she heard on the street. (HI 1929). Anderson called the
information kid stuff. (HI 1976). After her meetings, neither deputy felt she was able to be of any use
purchasing drugs or providing information. (FIT 1931-32, 1977-78). Ihere is no evidence Heidi purchased
drugs for law enforcement; provided information leading to search warrant, or otherwise provided any
information leading to the arrest or conviction of any person. Defendant has presented no evidence linking
Heidi to any person against whom she provided information, testimony, or evidence. listead, Defendant
speculates about possibilities, and, as will be discussed below, speculation about other suspects does not
equate to admissible exculpatory evidence.
Similarly, the fact that Heidi Allens card and other materials were dropped in the parking lot of the
D&W in January of 1992 is not exculpatory. VanPaften, pursuant to procedure, created the materials after
his meeting with her. (FIT 1925-26, 1929-3 1). As a road patrol deputy, Van Patten did not have desk and
therefore carried paperwork with him in his patrol vehicle. (HI 193 3-34). Because the D&W was located in
the middle of his patrol area, and had an outdoor pay phone, it was a convenient spot for him to stop and call
into the office. (HI 1932-1933).
On one of the occasions he stopped at the D&W in January of 1992, he dropped the card. (HI
1933). Kristin Duell, owner of the D&W, discovered the card and associated paperwork in the parking lot.
(HI 1878-79). Duell called the Sheriffs Department, and turned it over to them on January 23, 1992. (HT
1879-80, 1914-15, 1995-97). Duell never told anyone about the contents of the materials she discovered.
(HI 1881). Deputy Montgomery placed the materials in VanPattens office mailbox, where the materials
remained until Heidi was abducted approximately 26 months later. (HT 1934-1936, 1988).
In order this evidence to be exculpatory, Defendant needed the Hearing Court to draw the following
inferences: (1) that some unknown person discovered that the card dropped by VanPaften and left it there to
22

be found by Ms. Duell; (2) that the same unknown person knew importance of the card and associated
paperwork; (3) that the same unknown person had reason to believe that Heidi had provided evidence against
them; and (4) that the same unknown person waited over two years to abduct Heidi. Defendant simply failed
to prove those inferences. Instead, Defendant asked the Hearing Court, and now this Court, to believe that
some unknown individual found out that the card was dropped and waited some two years and two months to
abduct Heidi Allen. In fact, the Hearing Court found that it is hard to imagine how [appellant] could have
argued and admit into evidence that some kind unknown drug dealer planned for two years to abduct and kill
Ms. Allen in broad daylight with witnesses around. (A 27). To the extent that the Hearing Court found such
evidence to be too remote and speculative to be received as evidence, it would not have been exculpatory for
Defendant. Consequent, it is not Brady material.
In his brief, appellant takes issue with the Hearing Courts determination that Heidi Allens status as
a confidential informant is misleading and inaccurate. Defendant attempts to make Heidis confidential
informant status, however that term may be defined, as the ultimate issue in the appeal. In reality,
Defendants protests are a distinction without a difference because the credible evidence establishes the
People disclosed the evidence.
A fair reading of the Hearing Courts decision reveals that it drew distinctions and subtleties within
the term confidential informant (A 2$). As Investigator Anderson explained, there are different types of
confidential informants: There is (sic) people who just merely give information. There is (sic) people that
have

are in a position to give you specific names, locations. Theres (sic) people that are in specific

position to introduce an undercover, to make buys on their own, so its all different levels. (HT. 1973).
Investigator VanPatten similarly described the types of confidential informants. (HT 1926-27).
The all-encompassing nature of the term confidential informant is really the source of Defendants
disagreement with the Hearing Court. The term confidential informant is an ambiguous term and has
different meanings depending upon context, and the court recognized these distinctions. Unlike Federal
practice, there does not appear to be an official definition of a confidential informant in New York. People
v. Pierre, 51 Misc3d 1035, lO4lfii. 8 (Supreme Court Kings County 2016).
23

The term confidential informant most commonly describes an individual who establishes a
relationship with the police and purchases illegal drugs for the purpose of obtaining search warrants or for
criminal prosecution of the sale. (Scenario 1). Investigator Anderson described this as people that are in
specific position.

to make buys on their own. (HT 1973). Also falling under the term confidential

informant, however, is a person who speaks to the police, confidentially, one time about a specific target or
incident but does not have a long term relationship with the police. An example of this situation may be an
individual arrested with drugs on him, and who cooperates with police officers and tells them the source of
the drugs. (Scenario 2). Investigator Anderson described this as people that have

are in a position to give

you specific names, locations. (1ff 1973). Similarly, an individual, who does not buy drugs themselves for
law enforcement but has the knowledge and relationship with a target to introduce and undercover officer to
the target is a confidential informant. (Scenario 3). Investigator Anderson described this as people that
are in specific position to introduce and undercover. (HI 1973).
Finally, an individual who provides confidential background information regarding subjects who are
breaking the law may also be considered a confidential informant. The information provided by this type
of confidential informant can be based upon rumor or innuendo, i.e. I have heard so and so deals drugs;
or based upon witnessed activity that the individual was not involved in, i.e. I was at a party and saw so and
so possessing drugs. (Scenario 4). This fourth type is of limited value. Investigator Anderson described
this as people who just merely give information. (HT 1973).
What Defendant characterizes as a contradiction in the rulings of the Hearing Court is a matter of
context. Clearly Heidi Allen met with and provided confidential information as described in Scenario 4
above. In its decision, the Hearing Court found Heidi was not a confidential informant and then went on to
hold that, [h]owever, even if the fact that Ms. Allen had provided limited information to law enforcement
about drug activity in 1991 the People disclosed that information. (A 28). The Hearing Court clearly
approached the term confidential informant in a nuanced manner and drew a distinction between those
confidential informants who provided evidence against suspects (i.e. Scenario 1) and those that provided
generalized rumor mill (HI 1929) and kid stuff (HI 1976) (Scenario 4). The evidence overwhelming
24

supports the Hearing Courts conclusion that Heidis information pertained to friends of hers from high
school who were using drugs, and none of her information implicated defendant, defendants brother, or
Steen, Breckenridge, or Bohrer. (A 13-14).
Therefore, the fact Heidi Allen met with deputies is not exculpatory because her failure to provide
solid and useful information negates any alternative suspect. The fact that her index card and other materials
remained in VanPattens mailbox from January 23, 1992 until April 3, 1994, and the fact VanPatten did not
remember her in April of 1994, supports that he did not have ongoing contact with her. further, the dormant
nature of her file substantiates that her information was rumor mill or kid stuff and therefore of little
importance. (HT 1933-3 8). Thus, it is not exculpatory for Defendant.
Significantly, Heidi Allens status as a confidential informant not only fails to implicate another
party, it actually serves to strengthen the Peoples case against Defendant. As part of his original trial
strategy, Defendant attempted to put distance between Heidi and any type of drug activity. (TT 333 1-3332).
In his summation, Attorney fahey contended that the two inmates from Massachusetts, Robert Baldasaro and
James McDonald, seized upon Defendants incarceration for a drug offense to falsely claim that Defendant
said that the abduction was related to drugs. (TI 3331-3332). Specifically, Fahey said,
They take whatever information they can get and they construct a story from that. Thats
what they do. Hes in jail on a drug charge so well tell the cops he killed Heidi Allen
because she screwed him in a drug deal. If theres one thing we know about Heidi Allen is
that shes a good hardworking college student who didnt do drugs. Brett Law told us
theres no way shed be involved in a drug deal or no way that she would use cocaine with
Gary Thibodeau. But thats the way Baldasaro and McDonalds minds work. Thibodeau is
in jail for drug possession so lets tell the police that its a drug deal gone sour.
(TT 333 1-3332). Defendant elicited the first mention of drugs in his trial during re-cross examination of
Baldasaro. (U 1636). It is clear from the trial transcript that the defense tried to use Heidi Allens lack of
involvement in drug activity to attack the credibility of both Baldasaro and McDonald and undermine their
testimony about why she was killed.
If Heidi Allens status as a confidential informant were admitted into evidence, it would enhance
the credibility of both Baldasaro and McDonald, adding credence to their testimony. Upon hearing of Heidis
status as a confidential informant and learning that Defendant was incarcerated for a drug offense, the jury
25

would likely conclude that Defendant had motive to abduct and kill her. Further, such information would
support that Baldasaro and McDonald were accurately and truthfully recalling what Defendant told them, as
they would have no independent basis to know of her status as a confidential informant.
Defendant bears the burden of establishing the exculpatory nature of the materials and has failed to
meet that burden. CPL

440.30(6). Therefore, this Court should affinn the Hearing Courts decision.

finally, assuming arguendo, Defendant proved the first two prongs under People v. Garrett, he must
prove by a preponderance of the evidence, the third prong, that prejudice arose because the suppressed
evidence was material. People v. Garrett, 23 NY3U at $85. In New York, where a defendant makes a
specific request for a document, the materiality element is established provided there exists a reasonable
possibility that it would have changed the result of the proceedings. People v. fuentes, 12 NY3d 259, 263
(2009). Absent a specific request by defendant for the document, materiality can only be demonstrated by a
showing that there is a reasonable probability that it would have changed the outcome of the proceedings.
Id. The People assert that while Defendant made no specific request for the documents, regardless of
whether the case is examined under reasonable possibility standard or reason probability standard, the
evidence would not have changed the result of the proceedings.
Significantly, on Defendants direct appeal, this Court, while reviewing an evidentiaiy error, held
there is overwhelming evidence of defendants guilt and no significant probability that the juiy would have
acquitted defendant but for the error. People v. Thibodeau, 267 AD2d 952, 953 (1999)lv. denied 95 N.Y.2d
805 (2000) (emphasis added). This Court succinctly recapped the evidence, as follows:
There was direct eyewitness testimony establishing that the victim was abducted from a
convenience store. The fact that defendant was one of the abductors was established by his
admissions to two jailhouse informants. Defendants admissions were corroborated by
proof establishing the presence of defendants brother and his van at the store at the time of
the kidnapping; by descriptions of the abductors; and by evidence placing defendant and
his brother together at various times that morning and the night before, all in contravention
of their alibi evidence.
Id. at 955. This Courts determination of overwhelming evidence and no significant probability of a
different verdict are as relevant and compelling in this appeal as they were on direct appeal.

26

The Hearing Court found that the evidence regarding Ms. Allens confidential informant status or
the index card being dropped to be too remote and speculative to be admitted into evidence. Specifically, the
Hearing Court determined that any theoiy that someone other than [Defendant] kidnapped her because she
was a rat, would have been too speculative to argue without any corroborating evidence; and that it is
hard to imagine how defendant could have argued and admit into evidence that some unknown drug dealer
had planned for two years to abduct and kill Ms. Allen in broad daylight with witnesses around. (A 26-27).
The Hearing Courts ruling corresponds to a trial court ruling on the admissibility of this evidence.
Appellate Courts review a trial courts determination concerning admissibility of third-party
culpability evidence under an abuse of discretion standard. People v. Powell, 27 NY3d 523, 531 (2016). A
trial court is free to deny admission of speculative evidence that some unknown persons could have or had
motive too commit the crime. Id. For example, in People v. Powell, the Court of Appeals affirmed the
exclusion of third-party culpability evidence where the theory of admission was that others could have
had access to [victims] home or might have had reason to kill her. I. at 531-32. Third-party culpability
evidence is subject to the same general balancing analysis that governs the admissibility of all evidence.
People v. Primo, 96 NY2d 351, 356 (2001). In Primo, the Court of Appeals highlighted the particular
potential for confusion and speculation concerns regarding third-party culpability evidence. Specifically, the
Court of Appeals wrote:
In this setting, we note that the countervailing risks of delay, prejudice and confusion are
particularly acute. If those concerns were not weighed against the probative value of
evidence, the fact-finding process would break down under a mass of speculation and
conjecture. Courts thus have been careful to exclude evidence of third-party culpability that
has slight probative value and strong potential for undue prejudice, delay and confusion.
Id. at 356-57. Defendant contends that Ms. Allens confidential informant status, and the fact her CI card
was dropped in January of 1992, means that unknown drug dealers whom Ms. Allen y have provide
evidence or information to law enforcement on, could have had a motive to adduct and murder her. It is
exactly this kind of speculative evidence that Primo and Powell describe as inadmissible. As the Court of
Appeals has summarized one of its holdings in this area; speculative assertions that other unidentified
individuals had a motive to harm a victim are insufficient to support admission of third-party culpability
27

evidence. People v. Powell, 27 NY3d at 532 (summarizing the holding of People v. Gamble, 1$ NY3d 386,
398-399 (2012)).
The Hearing Court relied on People v Gamble, 72 AD3d 544

(1St

Dept. 2010) affirmed 18 NY3d 386

(2012). In Gamble, the defendant sought to admit evidence to show that unknown persons may have had a
motive to kill him, [, at 545. Principally, the defendant in Gamble sought to establish that one of the
victims was a drug dealer, had offered to become a confidential informant, and had been beaten by
unidentified persons approximately a year and a half before the homicide. a The First Department held
that this evidence was unduly speculative, and that its prejudicial effect outweighed its probative value. a
The Court of Appeals affirmed holding that [d]efendants further contention that he was denied the right to
present a defense and his argument that Supreme Court erroneously shielded the jury from hearing evidence
demonstrating that there were other potential perpetrators who had a motive to do violence to [victim] is
without merit. People. v. Gamble, 18 NY3d 386, 398 (2012).
The theory used in Gamble parallels Defendants theory. Both Defendant and the defendant in
Gamble argued that the victim was in danger from unknown drug dealers because of their confidential
informant status. Additionally, Defendant and the defendant in Gamble point to an incident far distant in
time to support their theory. Defendant points to the index card being dropped over two (2) years and two
(2) months prior to the abduction; and Gamble pointed to an assault on the victim approximately a year and a
half prior to the victims murder. People v. Gamble, 18 NY3d at 394. Given the obvious parallels, Gamble
plainly controls this case.
If Ms. Allen had been kidnapped within days or weeks of the index card being dropped on January
23, 1992, it would be more reasonable for the court to consider Defendants theory that she was abducted due
to her perceived status as a confidential informant (although such argument would still be speculative).
Given the known timeline, its speculation to believe that the index card had anything to do with the
kidnapping, particularly since there was no harassment, threats, or other problems with Ms. Allen while she
worked at the store in the intervening two years. (HT 1888). Ms. Allens kidnapping occurred 26 months

28

after the index card was dropped, and consequently, the Hearing Court did not abuse its discretion by
precluding the evidence relating to Ms. Allen status and the index card.
Defendant relied primarily upon People v. Wright 86 NY2d 591 (1995) to support the theory that the
disputed information and documents were material. In considering Wright, the Hearing Court found that the
facts of that case were too dissimilar from this case. In Wright, the defendant was charged with stabbing the
victim after the two returned to her apartment from a bar where they met. Wright, $6 NY2d at 594. The
victim and defendant told markedly different stories regarding the events that occurred at the defendants
apartment.

The victim claimed he undressed in front of defendant and sat on her bed. I While sitting

on her bed, victim testified that defendant entered the room and stabbed him with a knife. Id. In contrast, the
defendant testified that while at the apartment the victim entered her bedroom naked and told her, I want to.

you. Id. During the trial, the location of the victims clothing and why the victim did not immediately go

to the hospital or the police after being stabbed became focal points of the trial. With regard to the clothing,
a police officer testified that he found certain clothing items inside and within the entranceway of the
bedroom. Id. The officers report, however, stated the clothing was found outside the bedroom. Id. With
regard to the victims reluctance to go the hospital or the police, the prosecutor argued at that the victim
didnt trust the system or that the police were not his friends. [i, at 59$. After the defendant was found
guilty of Assault in the Second Degree, she learned that the victim had been an informant for the
investigating police department.

a. at 595.

The Court of Appeals held the victims status as a police informant was material and relevant
because the outcome of this case turned on whether the jury believed [victims] account of an unprovoked
attack or defendants claim that [victim] entered the bedroom naked planning to rape her. j, at 597. The
Court of Appeals found that had defendant been armed with the knowledge that [victim] was an informant
for the same police department [that investigated the case], she could have presented the jury with a motive
for [the police] to favor [victim]. i4, at 596. With regard to the victims failure to go to law enforcement
after the assault because the victim did not expect justice from the system, and because the police were not
his friends, the Court of Appeals held that evidence that [victim] had, in fact, provided the police with
29

information on prior occasions would have effectively refuted the prosecutors proffered justification for
[victims] behavior. Id. at 597-98. The facts in Writht showed clear contemporary connection to the trial.
The victims active, contemporaneous status as a confidential informant in Wright made that status relevant
and material. The Hearing Court found, and the evidence clearly established, that Ms. Allen was not in any
way an active confidential informant. (A 13-14). The meeting Ms. Allen had with members of the
Oswego County Sheriffs Department and the accidental dropping of her information card took place over 26
months before her abduction. In this way, Wright is dissimilar from this case.
Additionally, the importance the informant evidence in Wright hinged on the potential
impeachment of the credibility of the victim. Wright did not argue, as Defendant has argued in this case, the
confidential informant evidence created potential third party suspects. This fact is important because the
where the informant evidence is used to attack the credibility of a witness, it has a clear connection or link
to the trial. Where the admissibility of the informant evidence is based on potential third party suspects,
that link or connection does not automatically exist. As such, People v. Wright, is not applicable to this case.
In his brief, Defendant argues that Michael Bohrer had knowledge of Ms. Allens card being dropped
and Ms. Duell finding it. See page 54 of Appellants Brief. Defendant neglects to mention that during
Bohrers testimony the Hearing Court sustained an objection with regard to all of his testimony on this
subject because it was based on hearsay. The Hearing Court specifically said during this line of questioning
Honestly, anything regarding the CI status is completely based upon hearsay. The Courts disregarding it.
No first hand knowledge. (HT 582 (emphasis added)). This followed an earlier objection during Bohrer s
testimony regarding the index card that was sustained by the Court. (HT 581).
To the extent, that Bohrers testimony regarding the card remains part of the record, he testified that
his knowledge from of the index card being dropped came from television. (HT 581). Defendant cannot
have it both ways: he cannot contend that Bohrer knew about the index card being dropped from television,
and then argue that the People suppressed this information. The law does not require prosecutors to supply
a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence

30

and its exculpatory nature. People v. Doshi, 93 NY2d at 506. If Bohrer is correct, and the television
reported about the index card, then Defendant certainly should have reasonably known of the evidence.
finally, it is important to remember that rumors about Heidi Allen being a confidential informant
were rampant, as the December 7, 1994 Post-Standard Article reflects. Certainly, Bohrer could have heard
and accepted the rumors that later turned out to be somewhat true. (A 2277)
further, the Hearing Court had the opportunity to review the credibility of Bohrer and determine
whether he was accurate in his testimony. A review of Bohrer s testimony reveals him to be eccentric. The
Hearing Court is in the position to judge the credibility of witnesses and assess their accuracy. Bohrer
appears to have an extensive mental health history (HT 603-04, 607-08), and certainly the Hearing Court
appropriately took that into account.
Defendant contends that Hearing Court erred by refusing to allow additional witnesses regarding
Heidi Allens confidential informant status. Initially, the proffered testimony of Martha Sturz, Brian
Mensch, and Rhonda Burr is based upon hearsay. For example, Sturtzs testimony is based upon
conversations with family, and it is clear that Heidi only spoke with investigators at times that were over two
years prior to her abduction. As Defendant acknowledges, the source of the alleged Person in Need of
Supervision (PINS) petition related to alcohol and improper child care (A 1874). This information, if true,
adds nothing to the testimony about her subsequent contact with VanPatten and Anderson. As the Court
found, Brian Menschs and Rhonda Burrs proffered testimony add nothing the information already
provided. (A 1906). Even if all of the testimony was allowed at the hearing, Defendant still knew of the
information and left speculating about unknown drug dealers.
Finally, Defendant attempts to argue that the materials were somehow an indication that the Oswego
County Sheriffs Department guided the investigation in such a way to conceal their own wrongdoing.
The evidence clearly shows that Fahey had possession of the Lortie report, knowledge of the Anderson
report, and full knowledge of Heidis contact with Sheriffs Department. The reports of VanPatten,
Anderson, and Montgomery were drafted immediately after a court appearance discussing the Lortie report.
The materials were clearly turned over to the defense attorneys for both defendants. If the Sheriffs
31

Department were interested in somehow concealing their own alleged wrongdoing, they certainly acted in
exactly the opposite fashion by drafting documents explaining what happened.
Defendant had the burden of proving by a preponderance of the evidence every fact essential to
support the motion. CPL 440.30(6). The elements of Brady violation are that (1) the evidence is favorable
to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by
the prosecution; and (3) prejudice arose because the suppressed evidence was material. People v. Garrett,
23 NY3d 87$, $85 (2014). Defendant has failed to meet his burden on all three elements. Defendant failed
to establish that the material was favorable, that the material was not disclosed, and that prejudice arose.
Additionally, given this Courts prior holding that there was overwhelming evidence of defendants guilt,
People v. Thibodeau, 267 AD2U at 953 (1999) lv. denied 95 N.Y.2d 805 (2000), there is no prospect of a
different verdict had this information been presented at trial. Therefore, this Court should affirm the Hearing
Courts decision and deny the relief requested.

32

POINT H.

THE HEARING COURTS CORRECTLY ANALYZED THE DEFENDANTS

ALLEGED CLAIMS OF NEWLY DISCOVERED EVIDENCE AND CORRECTLY
DETERMIKED IT WOULD NOT HAVE CHANGED THE VERDICT

While this court may substitute its own credibility determination for the trial court, Judge King
presided over a lengthy hearing that included numerous witnesses, and he was in the best position to consider
each witnesss reliability and veracity. Judge King could assess qualities that are not reflected in the record,
such as tone of voice, promptness of response, or whether the witness equivocated or seemed uncertain.
further, Judge King could assess the demeanor of each witness and determine whether they seemed
forthcoming. As this Court has repeatedly recognized, the hearing courts credibility determination is entitled
to great weight. See People v. Lard, 71 AD3d 1468, 1469
(2010); People v. Smith, 16 AD3d 1081, 1081

(4th

(4th

Dept. 2010) leave denied 14 N.Y.3d $89

Dept. 2005) leave denied4N.Y.3d $91 (2005). Since

Defendants appeal primarily rests upon a disagreement over the hearing courts credibility determinations,
this Court should rely upon the lower courts assessment and deny the relief requested.
It is well settled that on a motion to vacate ajudgment of conviction based on newly discovered
evidence, the Defendant must establish, inter alia, that there is newly discovered evidence: (1) which will
probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could
not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and (6) which does
not merely impeach or contradict the record evidence. NY CPL

440.10(1)(g), People v. White, 125 A.D.3d

1372 (4th Dept. 2015). The power to grant an order for a new trial on the ground of newly discovered
evidence is purely statutory, and such power may be exercised only when the requirements of the statute
have been satisfied, the determination of which rests within the sound discretion of the court.

j4,

quoting People v. Salemi, 309 N.Y. 208, 215 (1955). In this case, the hearing court considered these factors

and correctly noted that Defendant has the burden of establishing by a preponderance of the evidence every
fact essential to support the motion. A.23, quoting People v. Backus, 129 A.D.3d 1621, 1623 (4th Dept.
2015), lv. den. 27 N.Y.3d 991 (2016). The hearing court properly denied Defendants motion because he
failed to meet his burden.

33

As Defendant has acknowledged, the decision to grant a motion on the basis of new evidence
rests with the discretion of the hearing court. See People v. Backus, 129 A.D.3d 1621, 1623-24 (4th Dept.
2015), lv. den. 27 N.Y.3d 991 (2016). Accordingly, this Court must review the hearing courts decision to
determine whether there was an abuse of discretion.
courts

Ij In this case, there are no clear errors in the hearing

factual findings. Indeed, the courts Decision and Order is based upon a proper evaluation of the

reliability and

accuracy of

the proffered testimony and a determination as to how such evidence would have

impacted the trial jurys verdict, keeping in mind relevant evidentiaiy standards that impact the admissibility
of such evidence.
The hearing court considered the relevant law and found that it was hard pressed to see how any
of the claimed newly discovered evidence presented at the hearing, if allowed at trial, would likely result in a
different outcome. A.3 1-3 2, 4$. While the hearing court did not explicitly recount and discuss all of the
trial evidence in its Decision, implicit in the courts conclusion is an assessment of the evidence put forth in
the CPL
intent

440.10 hearing in light of the evidence adduced at trial. To claim otherwise is to ignore the clear

and meaning of the courts decision.

Defendants newly discovered evidence claim rests upon information that purportedly shows that

three other men--James Steen, Roger Breckenridge, and Michael Bohrer--were responsible for the
kidnapping and presumed death of Heidi Allen. The court gave full consideration of this claim and
thoroughly reviewed the testimony of each witness and all of the evidence put forth by both sides. The court
carefully examined each witnesss testimony, evaluating whether it made sense on its own and in light of
other testimony. Considering the hearing evidence in totality, the court explicitly held that there was no
credible, trustworthy, or reliable evidence presented at the hearing by defendant, which links any of these
three men to this crime. A.49. Essentially, the hearing court determined that the evidence presented by
Defendant at the hearing was either: (1) contradictory, unbelievable, and uncorroborated; or (ii) incredible as
a matter of law; or (iii) simply inadmissible.
The hearing court conducted a non-mechanical evaluations of the new evidence in its totality,
examining the testimony of individual defense witnesses and assessing how their testimony integrated with
34

the rest of the evidence presented at the hearing. Cf. People v. Tankleff, 49 A.D.3d 160, 180 (1st Dept.
2007). The court considered the credibility of the witnesses and whether their testimony was consistent with
other evidence, including facts that were established at the original trial.
Significantly, although Defendants initial motion was based largely upon a claim by Tonya Priest
that James Thumper Steen admitted to kidnapping and killing Heidi Allen, the defense elected not to call
Priest as a witness at the hearing. A.84-91, 123-139. Instead, Defendant admitted her prior statement into the
hearing record, as it was attached to a letter that was admitted as Exhibit 35. (A.2410). In doing so,
Defendant successfully prevented the People from challenging Priests claims, but he also denied the hearing
court the opportunity to directly assess her reliability and credibility. Nevertheless, the court considered
Priests prior written statement(s) and assessed its merit in both an April 6, 2015 decision, as well as in the
final decision. (A.33, 1583). As the hearing court noted, the crux of Priests statement is as follows:
Steen told her in 2006 that he, Breckenridge and Bohrer took turns beating Ms. Allen to death,
cut up her body and then hid her under floorboards in a cabin in the woods off Rice Road in
Mexico (Exhibit 35). Priest claimed Steen said they burned Ms. Allens clothes in a wood stove in
the same cabin. Steen described the cabin as being deep in the woods, at the edge of a clearing,
and a person would have to cross over a set of railroad tracks to get to said cabin. (A.33-34).
Through the testimony of witnesses and introduction of other evidence (i.e. recorded phone call between
Tonya Priest and Jennifer Wescott), Defendant sought to establish that James Steen, Michael Bohrer, and
Roger Breckenridge had killed Heidi Allen at a residence located on Rice Road and then buried her beneath a
cabin located on the wooded property across the street.
The hearing court examined the alleged statements that Steen made to Priest and compared them
against the reliable evidence developed at the hearing, which included testimony from defense witnesses.
A.36-37, 46-48. Specifically, the court examined the Priest statement against the testimony of Chief
Investigator Richard Haumann from the Federal Public Defenders Office, who had examined two suspected
cabins on Rice Road. As the court summarized, Haumann had confirmed that the first cabin had been
demolished prior to Heidi Allens disappearance. Based upon Haumanns testimony, the location and
condition of the second cabin did not match the description of the cabin provided by Priest. A.36-37.
Similarly, the court compared the description given by Priest to the testimony of Forensic Investigator Joseph
35

Lisi from the Onondaga County Medical Examiners Office, who participated in a forensic excavation at the
second cabin. The court noted that Lisi described the condition of the cabin as being in heavily wooded
area not near any railroad tracks, contrary to Priests assertions. A.37-38. Further, the court noted that
while a cadaver dog indicated for the presence of human remains at that location, no human bones were
found during the extensive forensic excavation conducted by the Medical Examiners Office. A.3 7-38.
Based upon this competent evidence, the court explicitly found that Steens alleged admission that Ms.
Allen was buried somewhere out on Rice Road under the floor of a cabin was proven false. A.62.
In the received statement, Priest claimed that James Thumper Steen told her that the three men
kidnapped Heidi Allen from the store and took her directly to Roger Breckenridges house, which Priest
specified as being on Rice Road in the Town of Mexico. A.2417. In support of this claim, Defendant fried
to establish that Breckenridge and Jennifer Wescott lived in a trailer located at a particular Rice Road
address. Defendant sought to establish their association with the Rice Road address primarily through a
recorded phone call between Priest and Wescott. Recognizing that Defendant had placed a lot of weight
on the recorded call and the testimony of Wescott, the court carefully analyzed the call and considered its
reliability, as well as the credibility of Wescott. A.35, 44-46.
In its assessment, the court noted that Wescott testified at the hearing and explained that she had lied
to Priest during the phone call. A.45. In refutation to defense claims, Wescott explained that she was only
17-years old at the time of Heidi Allens disappearance and lived with her parents on County Route 38 in the
Town of Hastings. She testified that neither she nor any relatives have ever lived on Rice Road. Further, she
had never spent the night at a residence on Rice Road. A.45-46. Trying to resolve the conflict between her
testimony and the phone call, the court seemingly credited Wescotts explanation that she went along with
the conversation Priest wanted to have about the kidnapping to give Priest attention. A.46. The court, after
hearing Wescotts responses and observing her demeanor, was in the best position to assess whether she was
being truthful.
In assessing the reliability of the recording, the court noted that Wescoft acknowledged telling other
lies to Priest during the call, such as her claim that she had been subpoenaed by the Thibodeaus to testify at
36

the trial. A.46. Based upon all of the filings and arguments set forth by Defendant, the defense must concede
that her claim about being subpoenaed for trial on his behalf was a lie. Accordingly, Judge King correctly
assessed the phone call in his Motion Decision dated April 6, 2015, finding that the various statements made
therein are so mutually inconsistent as to be wholly unreliable. A.1591. Consequently, this Court should
affirm the courts conclusion that the Priest / Wescott phone call does not provide a sufficient basis to vacate
the judgment of conviction.
The hearing court did not consider the phone call in a vacuum, though. To the contrary, the
considered whether the call was supported by the testimony of two defense witnesses, Deb Vecchio and
Brian Mensch. The court explained that it found Vechios testimony unconvincing because she repeatedly
guessed at time frames and provided no documentation to support her testimony. Menschs testimony was
equally unconvincing, as he testified that no one lived in the trailer in 1993 or 1994. The court also noted
that Menschs testimony was inconsistent, as he had previously told law enforcement that he lived on the
property in either 1994 or 1995. A.47-48.
Moreover, the court evaluated the phone call against the testimony of Darcy Purdy, who testified that
she lived at the subject trailer on Rice Road from January of 1993 through the end of 1995. She explained
that she was confident of her residence because she lived there when she was married in September of 1994,
and she described a rehearsal barbeque held there. Purdys testimony was clear and direct, and she was
certain. She did not equivocate or struggle to remember dates, like Vecchio. Purdys testimony directly
contradicted Priests claim that Wescoft and Breckenridge lived at the home on Rice Road at the time Ms.
Allen was kidnapped. A.46-47. A review of the hearing courts decision makes clear that it found Purdys
testimony to be credible and reliable.
In its decision, the hearing court referenced documentary evidence that supported Purdys testimony
and showed that she lived at the Rice Road address at the relevant time. That documentary evidence
included (1) a lease that Purdy executed on December 9, 1992; (2) a copy of the wedding registry book from
St. Michaels Parish, which reflected the Rice Road address at the time she was married (September of 1994);
(3) a 1995 catalog and a 1995 vacation planner that Purdy received at that address; and (4) a lefter that Purdy
37

mailed to her mother from that address, which was post-marked May 5, 1994. Based upon all of the
documentary evidence, the hearing court correctly concluded that Purdys testimony established that she
lived at the subject property from 1993 through 1995. A.46-48. By establishing Purdy as the actual resident,
the People completely rebutted the defense claim that Heidi Allen was brought to the Breckenridge / Wescott
residence on Rice Road.
Defendant has asked this Court to reject the hearing courts findings and to reach its own factual
conclusions based upon its own review of the testimony and evidence. If this Court were to perform an
independent analysis to assess the reliability of the recording, it should also consider portions of the phone
call that undermine Defendants position. At one point, Wescott claimed that she was subpoenaed at trial for
the Thibodeaus. When Priest asked if she knew them, Wescoff responded, Yeah, the people that lived over
on Kenyon Road that got convicted for her fuckin death. A.2379. Notably, Defendant lived on Kenyon
Road at that time. Throughout these proceedings, Defendant has claimed no knowledge of Jennifer Wescott
until recently. Accepting Defendants position as true, then Wescotts claim is false and further demonstrates
the unreliability of the recording.
Moreover, Wescoft makes statements that undermine the basis of Defendants motion. Towards the
end of the recording, Priest sought confirmation that the three men brought Heidi to the house. Wescott
responded, Yeah...No, I think Roger was home with me. A.23$O. This response directly contradicts
Defendants position that the recording implicates all three men.
Defendant has argued that the recording is reliable and should be considered trustworthy because
Wescott did not know she was being recorded. If this Court were to accept that logic, then it should pay
careful attention the entirety of the call and not just those portions highlighted by Defendant. At one point,
Priest asked, You dont know which one killed her though? Wescoft responded, No idea. As far as I
know Thibodeau. A.2379. To the extent that Defendant asserts that the phone call should be considered
competent evidence, then this response incriminates Defendant and undermines both his new evidence and
actual innocence claims. To the extent that Defendant claims that Wescofts response is a lie, then this Court
should consider that alleged falsehood in assessing the overall reliability of the recording. Taken at face
38

value, Wescott makes conflicting and contradictory claims throughout the recording. Consequently, this
Court should likewise conclude the recording is wholly unreliable and, for that reason, it would not result in
a different verdict.
Introduction of Recorded Phone Call

This Court should reject Defendants argument that the introduction of the Priest / Wescott recording
would change the outcome at a new trial, as the phone call is not admissible as evidence. Unless Defendant
can establish that the recording may be properly received at trial, it does not constitute newly discovered
evidence for the purpose of this motion. See People v. Mazyck, 118 A.D.2d 728, 730 (2nd Dept. 2014).
Defendant has not established a proper evidentiary basis for the recording to be received as evidence at trial.
Although Defendant refers to the recorded phone call as an admission by Wescott, it may not be
received as a declaration against penal interest because at no point in the recording does she admit to being
directly involved in the kidnapping or killing of Heidi Allen. A.2372-81. In fact, Wescott repeatedly states
that she never saw Heidi that day, claiming that she was left in the van. A.2374, 2376, 2378. At multiple

points, she denies personally seeing Roger Breckenridge, James Steen, or Michael Bohrer commit any acts
against Heidi. A.2374, 2376, 2378. Tn the Memorandum of Law submitted in support of the initial motion,
Defendant even conceded this issue, acknowledging that Wescott was not a witness to the actual abduction,
murder, or disposal of Allen. A.106. Absent personal knowledge, it seems that all of her recorded
statements are based upon either hearsay or speculation, rendering them inadmissible as a matter of law. (Of
course, the more likely answer is that her statements were complete fabrications with no basis in reality.)
While the hearing court described the recording as wholly unreliable, the courts analysis suggests
that it essentially viewed to phone call to be incredible as a matter of law, even if the court did not use that
specific language. If this court were to independently examine and assess the reliability recording, as
Defendant has asked, then this court should rule that it is so unworthy of belief as to be incredible as a matter
of law, thereby rendering it inadmissible. Cf People v. Walker, 155 A.D.2d 916 (4th Dept. 1989), lv. den.
75 N.Y.2d 819 (1990), citing to People v. Stroman, 83 A.D.2d 370, 372-73 (1st Dept. 1981). As this court
noted in Walker, testimony should be rejected as incredible as a matter of law when it is impossible of belief
39

because it is manifestly untrue, physically impossible, contrary to experience, or s4/contradictory. Id.

(emphasis added) The Wescott phone call is riddled with self-contradictions and inconsistent statements.
Further, this court should deem the recording incredible as a matter of law since it is manifestly

untrue, as the events described by Priest I Wescott could not have taken place as discussed. The entirety of
the phone call rests upon a premise that the events took place at Wescotts residence on Rice Road. The
competent and credible testimony of Darcy Purdy, which was supported by documentary evidence,
conclusively established that she lived at the Rice Road address with her fiancee on the day of the
kidnapping. To the extent that Wescoff did not live at the address, then the events described are manifestly
untrue. Consequently, the phone call is incredible as a matter of law. Cf Walker, 155 A.D.2d 916
Seemingly recognizing the significance of Darcy Purdys testimony and the courts conclusion that
she was the actual occupant of the trailer on Rice Road, Defendant now essentially disregards arguments that
he advanced in support of his motion and facts that he sought to establish at the hearing. A review of the
hearing transcript makes clear that Defendant was trying to establish Wescotts connection to the Rice Road
property, as that is the specific location mentioned in Tonya Priests statements. Indeed, in the Memorandum
of Law submitted in support of this motion, defense counsel wrote:
Most recently, defense counsel learned that an abandoned cabin situated across the street
from Wescott residence at the time ofAllens abduction, and fitting the description of the
cabin referred to in Steens admissions, was likely disturbed over the weekend of July 26,
2014, and after that news of that disturbance was made, Wescott contacted Carl Robinson
to implore him not to confirm that she lived on Rice Road at the time ofAllen abduction
and that she went to Florida together with Roger Breckeridge shortly after Allen
disappeared. A.1 10 (emphasis added).
Whether Wescoff actually lived at that Rice Road address is clearly important to this case.
In the appellate brief submitted to this Court, Defendant tries to lessen the significance of the Rice
Road address, stating Again, the County Courts treatment of where Wescott resided on the morning of
Allens abduction was overly mechanical. To start with, Thibodeaus new evidence does not stand orfall
with a determination that Wescott lived on Rice RoacL

Defendants Brief p.84. This articulated position

is contrary to everything he has argued up to this point. lithe location of Wescotts residence is immaterial,
then the testimony of certain defense witnesses--Deb Vecchio, Brian Mensch, Richard Haumann, and
40

Kathryn Bamford--is completely irrelevant, as all of their testimony relates to Rice Road. Further, this new
position undermines the reliability and significance of Tonya Priests statement, which is predicated upon
Heidi Allen being taken to the Rice Road address.
It would be fair for this Court to conclude that Defendant has now altered his position based upon a
recognition that he failed to establish that Wescott lived at the Rice Road address, as he argued in his original
motion papers. Recognizing that his initial argument has been fatally undermined, Defendant now
downplays the significance of the Rice Road address. Essentially, he now argues that it does not matter if
Darcy Purdy lived at the property. Defendants change in position is instructive and should be considered by
this Court as proof that the newly discovered evidence would not result in a different verdict, as Defendant
apparently is no longer convinced that Heidi Allen was taken to the Rice Road address.
William Pierces Testimony

Although Defendant disagrees with the hearing courts credibility assessment of William Pierce, it
cannot be said that the court gave a conclusory opinion or failed to provide a basis for its decision. Indeed,
the court exhaustively explained in its decision why it did not credit Pierces testimony, citing to specific
inconsistencies and areas of concern. A.49-60. The hearing courts credibility determination is supported by
the record. Since the courts credibility determination is not clearly erroneous, this Court should give it great
weight.
As noted by the court below, Pierce came forward for the first time on July 25, 2014 and told
investigators he had witnessed Defendant abduct Heidi Allen. Pierce indicated that he came forward solely
out of good will, wanting to reassure the Sheriff that he did, indeed, arrest the correct person. A.42. At that
time, Pierce claimed that he had seen a news report of Defendant in 1994 and was certain that he had seen
him in the D&W parking lot abducting Heidi Allen on Easter of 1994. (FIT. 1008-10).
The hearing court noted that approximately 10 days to two weeks after he identified Defendant as the
perpetrator, Pierce saw a photograph of James Steen in the newspaper. The photograph was taken around the
time Steens arrest in 2010 for murder and showed Steen in ajail uniform. Upon seeing this highly
suggestive photograph, Pierce came to believe that Steen was the person he saw in the D&W parking lot.
41

A.52; HI. 977-78. Significantly, as the court noted in its decision, Pierce could not identify either Steen or

the Defendant when he met with an investigator on October 28, 2014 and was presented with photo arrays.
A.5 1-52. The fact that Pierce, in a relatively short period of time identified two separate individuals
(including the defendant) of committing the same crime certainly calls the reliability of his identification in
to question. The accuracy of Pierces revised identification is further eroded by his testimony that he saw a
bearded, husky man, who he believed to be a migrant worker of Hispanic origin, argue with Heidi Allen that
morning. A.59-60. James Steen is not Hispanic.

A.2609 (Ex.138). Given his conflicting accounts, it

cannot be said that his testimony would probably result in a different verdict.
In assessing the reliability of Pierces identification testimony, the hearing court stated that it could
not yield any evidentiary value to his testimony that Steens more recent picture enables him to identify
Steen as the suspect from twenty years ago. A.60. Although the reliability of a witness identification is
typically an issue for a jury to resolve, with the jury making the final credibility detennination, this Court
should find that the discrepancies in Pierces accounts render his identification testimony incredible as a
matter of law.

People v. Golden, 211 A.D.2d 729, 730 (2nd Dept.), lv. den. 85 N.Y.2d 938 (1995);

People v. Pinder, 269 A.D.2d 547, 548 (2nd Dept.), lv. den. 94 N.Y.2d 951(2000) (sole eyewitness who gave
confused and inconsistent testimony was not incredible as matter of law). In Golden, the court held that the

eyewitness was not incredible as a matter of law, even though he initially could not identify the defendant
from a photo array but then later identified him from a lineup that took place two months after the robbery.
See

If Pierce had simply been unable to identify Defendant or Steen from a photo array, his credibility

would be an issue for the jury to resolve. However, based upon his own testimony, he was absolutely sure
for more than 20 years that he saw Defendant in the parking lot that morning. He was so convinced of that
fact that, without provocation, he reached out to the Sheriffs Office on July 25, 2014 and provided a sworn
statement identifying Defendant. The People submit that his sworn statement identifying Defendant, when
considered with the duration of this belief renders his recent identification of Steen inherently untrustworthy
and incredible as a matter of law.

42

Pierces credibility was further diminished during the hearing because he was simply wrong on
certain established facts. He testified that the woman he saw get struck in the parking lot of the D&W was
wearing a black or blue puffy coat. (HI. 985-87). The trial testimony is quite clear that Heidi Allen was
wearing a gray sweatshirt that said Syracuse in green and blue plaid. (Tr. 1134, 1192-93, 1230-31, 3249).
To presume that she may have put on a coat is pure speculation. Additionally, Pierce testified that the
woman he saw in the parking lot had dark hair, specifying that it wasnt black, but it wasnt real light. (HI.
985). Heidi had blonde or light brown hair (Ir. 1192-93, 1231).
As the hearing court noted, Pierces description of the weather and road conditions at the time of the
abduction was simply inaccurate. As Judge King noted, Pierce testified that there was three to six inches of
slush on the road that morning. However, the photos from the D&W only show a partially wet road, not one
that was covered in inches of slush. A.5 1. Defendant attacks the hearing courts determination on this issue
by arguing that Pierces account of slush on the road matched the testimony from the prosecutions own trial
witnesses. Defendants reference to these prosecution witnesses (Donald Neville, William Cowen, and
Brittany Link) is misleading because they testified about the weather and road conditions at different times or
different locations than the D&W store at the time of the abduction. Donald Neville, Sr. testified about the
road conditions and weather at Defendants house on Kenyon Road (Ir. 1786), and on near the Kwik Fill at
the intersection of SR 104 and SR 69. (Tr. 1810). Donald Scott Neville (his son) testified about the road
conditions near Defendants home on Kenyon Road at 10:30 am. (Tr. 1962). Similarly, William Cowen
testified about the road and weather conditions near Defendants home on Kenyon Road at about 8:55 am.
(Tr. 1868-70). finally, Brittany Link testified about the weather conditions on Kenyon Road when she woke
up. (Ir. 1846).
Its is a widely known fact that weather and road conditions may differ dramatically at different
locations within the county, and the weather may change rather suddenly in a short period of time.
Defendant has attempted to take witness accounts of weather conditions from locations that are several miles
from the D&W, at times that were more than an hour after the kidnapping, to bolster the otherwise unreliable
testimony of Pierce. This Court should reject his attempt to do so.
43

Witnesses who were near the D&W irmnediately before or after the abduction describe weather
conditions that are nothing like that described by Pierce. Swenszkowski, who passed Richard Thibodeaus
van on the way to the D&W, testified that the weather was kind of drizzly, raining on and ofl not too
warm. (Tr. 1225). Harold Wiltse, who arrived at the store just before Swenszkowski, described the weather
as pouring rain. (Ir. 1205-1206). Bivens, who witnessed the abduction and identified Richard Thibdoeaus
van as the one involved, testified the weather as raining, a little snow in the aft. It was a bluish hazy day.
fIr. 1289). Likewise, mv. Herbert Yerdon from the Sheriffs Office testified that he arrived at the D&W at
8:20 am and that the weather was nasty and cold, with a light rain. (HI 2274). Yerdon testified that later that
day, after he had been at the D&W for a while, it began to snow and started covering everything up. (Hf.
2275-2279).

No one who was at or near the D&W in 1994 at the relevant time describes the road and weather
conditions as sunny with slush on the road. Pierces account is contradicted by the reliable testimony of
several other witnesses, all of whom testified closer in time to the actual event. Since Pierce has no other
verifiable fact correct, it strains sound logic, common sense, and good judgment to accept the accuracy and
reliability of his 20-year old identification of a person he saw for about 20 seconds from approximately 60
feet away. (HI. 1017-1020).
Quite significantly, defense counsel even undermined and discounted the persuasiveness of Pierces
identification of Steen during motion arguments before the hearing court. While arguing for the
admissibility of Catherine Schmitts testimony relative to Bobrers conviction in Milwaukee, Attorney
Peebles said Schmitt described the person who attached her as having shaggy hair and shaggy facial hair.
(HI, 1438, lines 13-15). Further in her argument, counsel claimed the facts of the Milwaukee case fit with
what Mr. Pierce described, what he witnessed when he drove by the D&W. (HT 143 9-40). Tn response, the
prosecutor stated that to accept counsels argument is to accept the idea that Mr. Bohrer was the man driving
the van who was seen by Mr. Pierce, when Mr. Pierces testimony that they offered was that it was in fact
James Thumper Steen. (The prosecutor then noted that Pierce had also previously identified Defendant as
the driver.) (HI p.1441, linesl$-23).
44

In response to a follow up question by the court, Attorney Peebles noted that Pierce could not
identify Defendant or Steen from a photo array. Counsel then tried to massage Pierces testimony by stating,
what he remembered was a shaggy beard and shaggy hair, and also the critical point of Mr. Pierces
testimony was the manner in which he saw the kidnapping take place. (HT. 1442, lines 10-16) (emphasis
added). The court, noting the shift in the defense position, then asked, But did Mr. Pierce on the stand
positively identify Mr. Steen? Attorney Peebles responded, He

what he positively identified is the fact

that it was not Mr. Thibodeaus van. He identified a white van that did not- was not Richard Thibodeaus
-

van. Secondly, what he said was he saw a guy with a shaggy beard and long hair. He didnt identify him
from a photo lineup, nor did he identify Gary Thibodeau in a photo lineup. (HT 1442, lines 17-25). The
court, seemingly noting the seeming shift in position, asked, He identified Steen from a picture in the paper
did he not? Rather than simply affirming the identification, Attorney Peebles gave a non-committal
response, stating, He looked at the paper and said that was who he thought the person was who did it. (FIT
p.1443, lines 1-4).
A fair reading of the described exchange shows defense counsel trying to walk back Pierces
identification of Steen as the driver of the van in order to support the idea that Bohrer could have been the
driver the shaggy hair and face. Otherwise, there is no reason for Attorney Peebles to make these comments
during an argument in support of calling Catherine Schmitt as a witness and introducing Bohrers prior bad
acts. Counsels attempt to undermine the identification is further supported by the fact that she described the
critical point of Pierces testimony as the manner of the abduction rather than who committed the act.
Given defense counsels apparent lack of faith in the identification, as well as for the reasons set forth by the
hearing court, this Court should find that Pierces identification testimony is not sufficiently reliable to result
in a different verdict.
Based upon all of the foregoing, the hearing court had ample evidentiaiy to support its conclusion
that to give any credence to Pierces identification of Steen would be to ignore common sense. While the
records shows certain contradictions in Pierces testimony, Judge King was able to hear the witnesss voice
and witness his demeanor. The cold record doesnt reflect the witnesses seeming confusion at times; nor
45

does it reflect the pauses between question and response. The court, having witnessed Pierces testimony
firsthand, provided an extensive analysis of Pierces testimony and carefully considered his reliability. This
court should afford the courts credibility determination great weight.
Other Evidence

In criticizing the hearing courts determination, Defendant seeks to fmd corroboration where none
exists. More disturbingly, Defendant has distorted the evidence from the hearing. For example, in an effort
to link the three individuals he accuses of the crime (Steen, Breckenridge, and Bohrer), he cites the hearing
testimony of Earl Russell. Defendant claims that Mr. Russell testified that all three suspects were connected
to Tom Martin and he had witnessed their presence together prior to 1993 at Martins social gatherings. See
Motion, pp.83-84 (emphasis added). In truth, Russells testimony was far different than what Defendant
claims. Russell never testified that Steen was connected to Tom Martin. More importantly, he never put
Bohrer at Tom Martins social gatherings. (HT 1455-5$.) Defendant his misrepresented Russells testimony
to this court.
The hearing court did not simply issue a cursory opinion with no explanation for its decision. Judge
Kings written decision is significant because it demonstrates that the court extensively reviewed and
considered all of the hearing testimony and evidence. Over the course of 64 pages, the court examined
whether and to what extent testimony was supported or refuted by other evidence, and the decision sets forth
the factual and legal basis for the courts conclusions. The court explained its credibility determinations and
described how it assessed the reliability of evidence, citing specific portions of testimony and referring to
particular exhibits. The written decision reflects thoughtful analysis, and there is a strong evidentiary basis
for the courts conclusions. Consequently, this Court should give great consideration to Judge Kings
conclusions and uphold his factual findings.
To the extent that this Court engages in its own independent review of the evidence, it will find that
newly discovered evidence proffered by Defendant is not admissible, or it is lacking reliability. The
competent, credible evidence established at the hearing undermines Defendants theory of defense. Thus,
when this court considered the new evidence against the overwhelming proof of guilt offered by the People
46

at the initial trial, this Court should find that the new evidence probably would not result in a different
outcome. Accordingly, this court should deny Defendants CPL

47

440.10 motion.

POINT ffi.

TilE HEARING COURT USED THE APPROPRIATE EVIDENTIARY

STANDARDS AND PROPERLY ASSESSED THE ADMISSIBILITY OF ALL
TifiRD-PARTY CULPABILITY EVIDENCE

Throughout the proceedings below, the hearing court applied established evidentiary standards in
determining the admissibility of evidence offered by both parties. With the consent of the People, the court
permitted Defendant to present hearsay evidence during the hearing so that it could determine whether such
testimony would be admissible at trial. In its fmal decision, the Court examined the evidence presented by

the defense and carefully considered whether it would be admissible as newly discovered evidence. Most
notably, the court examined whether statements attributed to James Steen, Roger Breckenridge, or Michael
Bohrer would be admissible as statements against penal interest. As part of this analysis, the court was
mindful that Defendant has a right under the state and federal constitutions to present evidence of third-party
liability. Although the court precluded Defendant from presenting certain evidence, its evidentiaiy rulings
were appropriate and conformed with the law. Consequently, the Court should affirm the lower courts
decision in its entirety and deny the relief requested.

A.

The Court properly precluded Defendant from presenting prior bad act evidence
relating to Michael Bohrer, as such conduct was irrelevant to the instant proceeding.

Defendant sought to introduce evidence about unrelated prior bad acts committed by Michael
Bohrer, which can be summarized as follows:
(i)

A 1980 conviction in Wisconsin for disorderly conduct in which Michael Bohrer

followed a woman driving home from work at night and attempted to force her
off the road. When the victim came to a stop, Bohrer existed his vehicle and
tried to gain entry to her vehicle. Bohrer was alone.

(ii)

A 1981 felony conviction in Wisconsin for unlawful imprisonment in which

Michael Bohrer, along with his brother, followed a woman home from work into
the parking lot of her apartment complex. After she exited her vehicle, Bohrer
attempted to engage her assistance, then grabbed her and tried to drag her into his
vehicle. The victim managed to break free and ran for safety.

(iii)

An allegation from Bohrers ex-wife that he physically abused her and sexually
abused his daughters during the period between 1975 and 1983.

(iv).

Information about a 1985 assault on a woman in an apartment in Beacon City,

New York. Bohrer was never arrested or prosecuted for this offense.
48

The People recognize that the Defendant has a right to elicit testimony of third-party culpability as
part of his defense, and such evidence may properly be considered as part of a CPL

440.10 hearing.

Where a defendant seeks to pursue a defense of third-party culpability at trial, evidence offered in support of
that defense is subject to the general balancing analysis that governs the admissibility of all evidence. $
People v. DiPippo, 27 N.Y.3d 127, 135 (2016), quoting People v. Primo, 96 N.Y.2d 351, 356 (2001). The
Court of Appeals has rifled that generally remote acts, disconnected and outside of the crime itself, cannot
be separately proved to show that someone other than the defendant committed the crime.

People v.

Schulz, 4N.Y.3d 521, 529 (2005).

Earlier this year, in examining the issue of third-party culpability, the Court of Appeals affirmed the
idea that reverse Molineux evidence--i.e. evidence that a third party has committed bad acts similar to those
the defendant is charged with committing--is relevant to, and can support, a third-party culpability proffer
where the crimes reflect a modus operandi connecting the third party to the charged crimes. DiPippo,
27 N.Y.3d at 138. In evaluating evidence of similar acts for the presence of modus operandi, courts must
look to whether the similarities were unusual enough to compel the inference that the same individual
committed both offenses. As the Court of Appeals stated, the modus operandi must be sufficiently unique
to make the evidence of the uncharged crime probative of the fact that [the individual] committed the one
charged. Seeid. at 139, citing to People v. Beam, 57 N.Y.2d 241, 251 (1982), quoting People v. Condon,
26 N.Y.2d 139, 144 (1970).
In DiPippo, the defendant had sought to introduce evidence that a third-party (Gombert) had
committed the murder and rape of the 12-year old female victim, whose remains were found with rope tied
around her wrists--which were behind her back--and looped around her neck and down to her ankle in a
hogtied position. The victim did not appear to be wearing clothing, and the deteriorated remains of her
underwear were found balled up at the top of the skeletons spine. A consultant with the medical examiners
office opined that the location of the underwear was consistent with it having been inside the victim mouth,
which could have caused asphyxiation. See 27 N.Y.3d at 130, 134.

49

As part of this third-party liability defense, DiPippo sought to introduce evidence that Gombert had
made incriminating statements to another inmate while incarcerated. Specifically, it was alleged that
Gombert told the inmate that authorities were frying to get him for the killing of two girls in the Putnam
County area. Gombert named the victim as one of the girls and stated that they already convicted some
other suckers in connection with her death. During the conversation, Gombert allegedly made derogatory
sexual comments about the victim. Gombert explained he met the victim at the apartment of a former
girlfriend and that the victim had offered to babysit for his child. He said that he lured the victim in to his car
by telling her that he wanted her to babysit for his daughter and that, after he did so, he had sex with her in a
red car with a black hood. The inmate elicited from Gombert that the sexual encounter occurred at the time
[the victim] disappeared. Significantly, Gombert made statement regarding a second missing girl, who he
identified by first name, who had also gone missing and whose body he claimed would never be found by the
police. The inmate interpreted Gomberts statements to him as boasts that he had killed both girls.
DiPippo, 27 N.Y.3d at 132.
In addition to an affidavit from the inmate, DiPippo offered statements of various witnesses
establishing that Gombert knew the victim and had met her at his former girlfriends house, where the victim
often spent time. DiPippo also submitted statements establishing that the victim had discussed babysitting
Gomberts child. Two witnesses also confirmed that Gombert had regular access to and routinely drove his
girlfriends car, which was red with a black hood and had Connecticut license plates. Gomberts girlfriend
also informed police that, after they saw a missing person poster for the victim, Gombert had told her that he
had given the victim a ride in her car the previous week. See DiPippo, 27 N.Y.2d at 132-33.
Additionally, DiPippo proffered notes from a police officer indicating that a witness had seen the
victim, on the last day that she was alive, getting into a compact red vehicle with Connecticut license plates.
The witness said that the vehicle was driven by a young man with whom the victim appeared to be familiar.
The witness viewed a photo array and stated that the person in picture number two, if anybody, looked like
the driver. Photograph number two depicted Gombert. Notably, at a hearing before the County Court on the
admissibility of the third-party culpability evidence, the witness testified that she had not identified Gombert
50

as the driver, as he was older than the person she saw. The witness clarified that the driver was not depicted
in the photographs but that Gombert, if anyone, bore some resemblance to the driver. The witness also
testified that she was shown a picture of the red vehicle belonging to Gomberts former girlfriend a few days
before the hearing, and it was not the vehicle she had seen on the day in question. Two police officers
corroborated aspects of this testimony. DiPippo, 27 N.Y.3d at 133.
The reverse Molineux evidence that DiPippo sought to introduce was allegations that Gombert had
raped and sexually assaulted other girls and women in what he claimed was a similar manner to that which
was alleged with regard to the victim in his case.

DiPippo, 27 N.Y.3d at 133.More specifically,

defendants written proffer tended to demonstrate that at least two other victims of sexual assaults by
Gombert--both of whom, like the victim, were known to Gombert prior to the assaults and were children at
the relevant times--alleged that Gombert had sexually assaulted them, on some occasion in the woods, while
restraining their hands and shoved articles of clothing in their mouths. At least one of those instances the
victim was restrained with a rope in a hogtied fashion. See DiPippo, 27 N.Y.3d at 139. The Court of
Appeals held that when taken together, these characteristics of the alleged rapes and, in particular, the
shoving of the clothing in the victims mouths.. .are sufficiently unique for those bad acts to qualify as modus
operandi evidence connecting Gombert to the victims death. Significant to the courts decision was the fact
that aspect about shoving clothing in the girls mouths was consistent with the state of the victims body when
it was found and the prosecutions theory of the potential cause of her death.

j, citing to People v.

Allweiss, 4$ N.Y.2d 40, 48 (1979) (evidence was admissible not because it showed the defendants
propensity to commit the crime but because it demonstrated a distinctive repetitive pattem).
In the present case, Defendant seeks to introduce evidence of Bohrers prior bad acts to prove that
Bohrer had the motive, the know-how, the wherewithal, and experience to brazenly and forcefully kidnap a
young female, who fit a certain type, in a public place, in broad daylight, without disguise, and thus with an
apparent motive to kill the victim. See Defendants Brief, p.97. Defendant argues that the evidence of his
Bohrers prior conduct, particularly the Milwaukee incidents is relevant because it was similar in nature to
the Allen abduction. See id. Although Defendant makes a generalized claim that Bohrers prior conduct
51

establishes a modus operandi, he has not established any sufficiently unique aspects about any of the prior
incidents that would permit introduction of those prior acts as reverse Molineuxu to establish Bohrers
culpability for the kidnapping of Heidi Allen.

f. DiPippo, 27 N.Y.3d at 139. If anything, Defendant has

established that Bohrers prior crimes are dissimilar to the present case.
Allegations of Prior Physical I Sexual Abuse Against Wife & Children
Defendant sought to introduce allegations by Bohrers ex-wife that he physically and sexually abused
her and their minor daughters in the time period between 1975 and 1983. There are no similarities between
the present offense and these allegations, and the hearing court properly precluded Defendant from
introducing such evidence. Such evidence was offered by the Defendant simply and solely to paint Bohrer
with a black brush and thereby undermine his credibility. The only purpose of such testimony is to
convince the jury that Michael Bohrer has a propensity to commit crimes against women, which is an
impermissible purpose. See People v. Salas, 136 A.D.2d 487, 488 (1st Dept. 198$).
Suspicion Regarding Beacon City Incident
Defendant sought to introduce evidence that Michael Bohrer was a person of interest for a felony
assault that took place in Beacon City, NY, in 1985. In that case, a female victim was attacked in an
apartment and was struck in the head with blunt object. Bohrer knew the female prior to the incident, and
although she never identified him as her assailant to police at the time, years later the victim claimed to recall
that Bohrer was in the apartment before the assault and had made sexual comments. Bohrer was never
arrested for that offense, and any suspicion of his involvement is simply speculation. It would be highly
prejudicial and improper for the court to permit Defendant to present evidence of this assault, as it does not
establish a modus operandi that is similar to our offense.
Milwaukee Incidents
Defendant sought to introduce evidence relating to Bohrers 1981 conviction for false Imprisonment,
which was based upon his attempted abduction of Catherine Schmitt, a 21-year old white female in
Milwaukee. Based upon the proffered evidence, Bohrer followed Schmitt in a car from her place of work (a
restaurant) to the parking lot of her apartment complex at approximately 3:40 am on february 20, 1981.
52

When Schmitt parked her car, Bohrer stopped near her. As she walked towards her apartment, Bohrer
approached and asked her for assistance in locating someone. When she tried to walk away, Bohrer grabbed
her around the throat and began choking her. He then dragged her towards the passenger door of his car and
attempted to push Schmitt inside of his vehicle. He was assisted by his brother, who was inside of the
vehicle and who had opened the door. Schmitt struggled and was ultimately was able to escape.
Defendant also sought to introduce evidence of Bohrers 1980 conviction for Disorderly Conduct.
The victim, identified as VTL, was a white female. Based upon the proffered evidence, Bohrer followed her
while she was driving home from her place of employment at approximately 3:40 am on June 4, 1980. After
following VTL for a considerable distance, Bohrer pulled his vehicle up next to her and tried to run her off
the road several times. When VTL stopped her vehicle, Bohrer went up to her car, attempted to gain entry,
and began pounding on the windows. As VTL drove away heading toward a police station, Bohrer followed
and attempted to drive her off the road again. She made it to a police station and avoided any further direct
interaction with Bohrer.
The hearing court properly precluded Defendant from introducing evidence of either Milwaukee
incident since they do not support a mothLs operandi that would permit introduction of those offenses as
reverse Molineux evidence, as those two incidents are factually dissimilar to our case, as well as to each
other. While both Milwaukee incidents involved the attempted abduction of a white adult female after she
left work during the early morning hours, any similarity between those two crimes ends there. The two
Milwaukee offenses were carried out in completely different manners from each other and do not
demonstrate a common modus operandi. In the first incident, Bohrer employed a ruse to approach the
victim in the parking lot of her apartment complex during the early morning hours, when presumably no one
was around. In the second incident, he employed no subtlety and exercised no discretion. Instead, he tried to
force the vehicles from the road and then tried to forcibly enter her vehicle while she was stopped on a
public roadway.
Moreover, the two Milwaukee incidents are dissimilar from each other because Bohrer was assisted
by his brother in the first incident, whereas he acted alone the second time. The absence of a particular
53

methodology in committing those offenses undermines the probative value of those incidents for this case, as
he did not act with a particular modus operandi.
Aside from being factually different from each other, the two Milwaukee offenses are
distinguishable from the abduction of Heidi Allen. Heidi was kidnapped directly from her place of
employment; there is no allegation that her abductor(s) followed her down a roadway and then grabbed her
directly from a vehicle. Further, both of the Milwaukee incidents took place at approximately 3:40 am, when
Bohrer would be somewhat concealed by the darkness of night. In contrast, Heidis kidnapping took place
during daylight hours at approximately 7:42 am.
Moreover, the proffered evidence shows that Bohrer engaged in a violent, assaultive struggle in the
first incident. In the second incident, he attempted to force the victim off the road, and then he tried to
forcibly enter her vehicle. These two incidents show Bohrer to use brute force to accomplish his intended
goal. These incidents appear seemingly stand in contrast to this case, as there is no evidence that a struggle
took place inside of the D&W store (Tr.1994-97). In fairness, it may be that Heidi was abducted outside of
the store, but that is unknown. The parties can only speculate as to how Heidi was kidnapped, which
supports the hearing courts ruling. Since the parties dont know exactly how Heidis abduction was carried
out, the prior Milwaukee incidents have limited value in showing a modus operadi to establish Bohrers
identity as the person who committed this offense. The only similarity between our case and the Milwaukee
incidents is that all involved the same general type of crime--the abduction of an adult female. The naked
similarity of the crimes proves nothing, though.

People v. Stubbs, 7$ A.D.3d 1665 (4th Dept. 2010); see

also People v. Willock, 125 A.D.3d 901, 903 (2nd Dept.) 26 A.D.3d 1012 (2015) (court properly precluded
defendant charged with fatal stabbing from introducing evidence that his twin brother had recently been
investigated for stabbing a co-worker).
Significantly, the present offense is dissimilar to the Milwaukee incidents in another significant way.
Based upon the proffer of evidence provided by Defendant at the hearing, it appears that neither of the
victims from Milwaukee knew Bohrer prior to the incidents. He was a stranger. As Defendant argued at the

54

hearing, Bohrer had interacted with Heidi on many occasions prior to her abduction while he was shopping at
the D&W.
Further, the trial courts preclusion of the Milwaukee incidents is supported by the physical and
temporal distance between those two incidents and Heidis abduction on April 3, 1994. Cf People v.
DeMeo, 139 A.D.2d 758 (2nd Dept. 1988) (three incidents occurred within two days of each other at the
same location, with the third incident taking place within hours of second incident). Moreover, given the
time and distance between the incidents, there is no rationale basis to conclude that Heidis kidnapping was
part of the same common scheme or plan as the Milwaukee incidents.

c People v. Fiore, 34 N.Y.2d 81, $1

(1974).
Since the underlying facts of Heidi Allens kidnapping are so dissimilar to the Milwaukee incidents,
Defendant did not establish a sufficient modus operandi that would have permitted the hearing court admit
evidence of the out-of-state convictions to establish his identity as the perpetrator in this case. For this
reason, this Court should affirm the lower courts decision and deny the relief requested. See People v.
Capozzi, 152 A.D.2d 985, 985-86 (4th Dept. 1989); People v. Scott, 93 A.D.3d 1193 (4th Dept. 2012); see
also People v. Coleman, 186 A.D.2d 509 (1st Dept. 1992); People v. Clarkson, 78 A.D.3d 1573 (4th Dept.
2010).

B.

The Court properly precluded Defendant from introducing other items of evidence

Defendant complains that the hearing court improperly denied the admission of various types of
evidence, which are summarized as follows: (i) various documents written by Michael Bohrer about the case
and found in his possession; (ii) a profile report done by the FBI; (iii) evidence of bracelet found in the
mailbox of the victims cousin; and (iv) testimony of Bohrer s brother John Bohrer. The hearing court
correctly noted that all of the proffered evidence was either too speculative, immaterial, unreliable,
based upon hearsay, or, moreover, irrelevant.
Defendant links the first two pieces of evidence into one argument, claiming the writing and the FBI
profile are proof that Bohrer committed the crime. The hearing court ruled the writings were inadmissible
because they were hearsay and not within the declarations against penal interest exception to the hearsay
55

rule. By linking the FBI profile and the writings, Defendant attempted circumvent the hearsay exclusion by
arguing that writings show that Bohrer acted in conformity with the FBI profile. This argument still fails
because profile type testimony is almost universally precluded and would be inadmissible at trial. People v.
Berrios, 150 Misc.2d 229, 230-31 (Bronx Sup. Ct. 1991); see also People v. Neer, 129 AD2d 829, 830

(3T(

Dept. 1987) lv. denied 70 NY2d 652 (1987). Notably, in Berrios, the court cited to 17 other states and 4
federal circuit courts that have precluded profile-type testimony based upon the fact that such testimony
infringes upon the province ofthejury. 150 Misc.2d at 231-32.
When used properly, a profile report is an investigative tool that helps law enforcement look for
certain types of behaviors or characteristics that may be associated with an offender. A profile report may be
the reason that law enforcement focuses upon a particular individual, but investigators must still establish
evidence that connects the suspect to the crime. Since more than one person may fit a particular profile, the
report is not predictive as to whether a specific individual committed the offense. For this reason, the court
properly precluded the profile report from being received as evidence.
Moreover, throughout these proceedings, Defendant has argued that Steen, Bohrer, and Breckenridge
kidnapped Heidi Allen due to their involvement in illegal drug activity and her status as a confidential
informant. However, in order to make Bohrers conduct more closely match the behaviors described in the
Van Zandt profile report, Defendant modified his position and suggested that Bohrer had a sexual motive for
abducing Heidi Allen. In his appellate brief, he writes, If the kidnapping involved a sexual motive, the
report indicated that the kidnapper would keep a souvenir such as jewefry taken from the victim. See
Defendants Brief, p.1 04. Likewise, in arguing for the admissibility of his prior convictions, Defendant says
that there was an apparent sexual motive for those crimes. $

at 101.

Defendant has produced no evidence suggesting that Heidi was kidnapped for sexual reasons. No
witness has indicated that she was sexually assaulted prior to her death. In the absence of any such
testimony, it was proper for the court to preclude that Van Zandt report. Defendants attempt to now ascribe
a sexual motive in the absence of any supporting evidence highlights the danger of using profile evidence
and supports why courts exclude profile testimony at trial.
56

Defendant argues that he should have been allowed to present testimony from Melissa Adams, a
cousin to Heidi Allen who claimed that she received a bracelet belonging to Heidi in her mailbox some years
after the abduction. The hearing court precluded such evidence, in part, because there was no proof set forth
that it was in fact Heidis bracelet. Further, there was no evidence of who put the bracelet in Adamss
mailbox. Defendant suggests that since Bohrer possibly overheard a conversation about the bracelet that it
can be inferred that he placed the bracelet in the mailbox. The inference is speculative at best and does not
establish that Bohrer possessed the bracelet at any time.
Furthermore, nothing in the trial record shows Heidi was wearing a bracelet at the time of her
abduction, and Defendant did not make a proffer to establish that fact at the hearing. If Heidi was not
wearing the bracelet that day, then the appearance of the bracelet thereafter is irrelevant. Although
Defendant understandably wants the a jury to speculate about the appearance of the bracelet, the hearing
court properly precluded this evidence to avoid inappropriate conjecture.
Defendant contends that the court erred in not allowing him to call John Bohrer as a witness. In the
affidavits from John Bohrer, he states that he remembers a person named Thumper when I lived in Mexico,
NY. While James Steen goes by the nickname Thumper, the affidavit contains no description that would
allow this court to conclude that he was referring to Steen. Even if this court were to accept that hes
referencing Steen, there is no indication that Michael Bohrer met him. Since John Bohrer moved to the
Town of Mexico before his brother, it is possible that he met Thumper on his own. Further, even if this
Court were to accept the Defendants invitation and conclude that Michael Bobrer asked his brother to go in
to the D&W convenience store on some unknown date in 1992 or 1993 to see if the broad was working
there, that evidence would not help a jury resolve this case. First, that incident is too remote in time from
the events of April 3, 1994 to be relevant. Secondly, John Bohrer does not provide a name or description of
the broad, so it speculative to presume he is referencing Heidi Allen. Further, even if Michael Bohrer
asked his brother to see if Heidi was working that day, its irrelevant to these proceedings. Defendant wishes
to introduce this evidence so that he may ask a jury to speculate as to Michael Bohrers motives. Perhaps he
wanted to know if she was working because she made good sandwiches.
57

For the foregoing reasons, the hearing court properly ruled on these evidentiary issues, and
Defendant was not unfairly prejudiced by the preclusion of such evidence. As the Court of Appeals has
recognized, a trial court is generally granted broad discretion in making evidentiary rulings precluding or
admitting proffered evidence and, absent an abuse of that discretion, its decisions should not be disturbed on
People v. Aska, 91 N.Y.2d 979, 9$ I (199$) (its important to rivet the jurys attention on the real

appeal.

issues at trial without undue diversion to collateral matters).

C.

The Hearing Court thoroughly considered the third-party culpability evidence

presented by Defendant and properly examined the admissibility of claimed
third-party admissions.

The hearing court thoroughly examined all of the third-party culpability evidence presented by
Defendant and properly examined the admissibility of the admissions that were attributed to Steen,
Breckenridge, and Bohrer. The courts analysis was anything but mechanical. Rather than analyzing each
statement in isolation, the hearing court considered the totality of the evidence, examining whether there was
admissible and sufficiently reliable independent evidence to corroborate any of the claims. The court found
that the supposed admissions failed to meet the standard for declarations against penal interest. Moreover,
many of the statements failed to meet general evidentiaiy standard for admissibility, finding the proffered
testimony to be speculative or irrelevant. A.60-72.
As the court correctly set forth, in order for a hearsay declaration to be admitted as a statement
against penal interest, it must meet four prerequisites: 1) That the declarant must be unavailable to testify by
reason of death, absence from jurisdiction, or refusal to testify on constitutional grounds; 2) The declarant
must be aware at the time of its making that the statement was contrary to his penal interest; 3) The declarant
must have competent knowledge of the underlying facts; and 4) There must be sufficient competent evidence
independent of the declaration to assure its trustworthiness and reliability. A.60-61 $ People v.
McFarland, 10$ A.D.3d 1121, 1122

(4th

Dept. 2013). The hearing court properly found that Defendant failed

to establish each of these prerequisites. Accordingly, this Court should affirm its decision and deny the relief
requested.
58

As the Court of Appeals has stated, While a defendant has a constitutional right to present a
defense, the right to present a defense does not give criminal defendants carte blanche to circumvent the rules
of evidence. People v. Hayes, 17 N.Y.3d 46, 55 (2011). However, when a defendant is seeking to
introduce exculpatoiy evidence, court apply a less strict standard when reviewing declarations against penal
interest, admitting such statements if there is a reasonable possibility that such statements may be true.
Chambers v. Mississippi 410 U.S. 284 (1973); People v. Settles, 46 N.Y.2d 154, 169-70 (1978); People v.
Oxley 4 A.D. 3d 1078

(3rd

Dept. 2009), lv. den. 13 N.Y.3d 941 (2010). Defendant failed to meet even the

lower standard, and the hearing court properly found that the statements are inadmissible and therefore do
not constitute newly discovered evidence. A.72, citing People v. Tankleff 49 A.D.3d 160, 182 (2 Dept.
2007); cf People v. Deacon, 96 A.D.3d 965

(2d

Dept. 2012) leave granted, 19 N.Y.3d 1025 (2012), and

appeal dismissed 20 N.Y.3d 1046 (2013).

Initially, the court properly held that Defendant failed to establish the first prong for admitting the
statements as declarations against penal interest since Steen, Breckenridge, and Bohrer all testified at the
hearing. A.62, comparing to People v. Soto, 26 N.Y.3d 455 (2015). The People submit that the hearing
courts legal conclusion is correct. The People are mindful, though, that a strict application of hearsay rule
on this prong might be disproportionate and infringe upon a weighty interest of the accused.

Oxley 4

A.D. 3d at 1083, citing to United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261 (1998) (per se rule
against admission of polygraph evidence is permissible); quoting Rock v. Arkansas, 483 U.S. 44, 56, 107
S.Ct.2704 (1987) (per se rule against excluding all hypnotically refreshed testimony is impermissible). In
Oxley, the court found that declaration against penal interest made by another were admissible, even though
third party was available to give testimony and actually testified, albeit outside of the jurys presence. 4
A.D. 3d 1083-84.
In its final analysis, the hearing court primarily focused upon the fourth prong, examining whether
there was sufficient credible independent evidence that would provide an indicia of reliability to the alleged
hearsay declarations of Steen, Breckenidge, and Bohrer. A.62-72. It is in this regard that this case is most

59

distinguishable from Oxley, which is why this hearing court was justified in reaching a different conclusion.
See People v. Oxley, 64 A.D.3d 1078, 1084.
In Oxley, the Appellate Division, Third Department, considered whether the trial court erred in
refusing to allow evidence of third-party culpability in a murder trial, which included admissions made by a
third-party (Chase) that were exculpatory to defendant.

64 A.D.3d at 1082-84. Medical evidence

showed that the victim was beaten in the head with multiple blows, causing death by blunt force trauma.
Hours after the victims death, police found a baseball bat in the defendants basement. The bat had the
victims hair and blood on it, as well as forensic evidence that was consistent with Defendants DNA. See
Oxley, 64 A.D.3d at 1079-80.
As part of its proffer outside of the presence of the jury, defendant explained that it sought to
introduce the following evidence / testimony:
a.

A witness who would testify that she saw a man called Chase at the scene of the
crime and threatening the victim only a few hours before the murder.

b.

The same witness would testify that less than 4$ hours prior to the murder, Chase
had threatened that he would kill the victim.

c.

The same witness would testify that six months after the murder, Chase admitted to
the murder, stating that he had made good to beat the victims brains in with a bat.

d.

An inmate incarcerated with Chase would testify that Chase told him that he, and not
the defendant, committed the murder.

e.

Another inmate overheard that conversation and was willing to testify.

f.

A woman who lived with Chase would testify that a few nights prior to the murder,
she went to the victims house to get away from Chase. When Chase appeared at the
victims house, the victim refused to let Chase in and threatened Chase with a
baseball bat, prompting Chase to respond that the victim would be sorry he got
involved and that he was going to get hurt.

g.

The incident a few nights before was corroborated by a local cab driver, who
testified that he picked up a man fitting Chases description at the home
where Chase lived, drove him to the victims house and waited outside, where
the cab driver heard his fare tell an occupant of the house that he was going
to get beat.

60

After the proffer, the trial court struck the cab drivers testimony and refused to allow any of this evidence of
third party culpability, including testimony regarding Chases statements implicating himself. See Oxley, 64
A.D.3d at 1082. The trial courts decision was reversed on appeal.
In reversing the trial courts decision, the Oxley court explicitly noted that the third-party hearsay

testimony bore persuasive assurances of trustworthiness and was supported by non-hearsay evidence.
64 A.D.3d at 1084. The Court held that the quantum and quality of evidence pointing to Chases
responsibility for the murder tipped the scales in favor of admitting his statements of guilt. In this case,
however, there is not substantial reliable evidence, independent of the hearsay statements themselves, that
points to the guilt of Steen, Breckenridge, or Bobrer. Thus, our case is clearly distinguishable from Oxley.
Seeid.
Unlike Oxley. Defendant has not presented any witnesses who put Bohrer or Breckenridge at the
store at the time of the offense. Although William Pierce now claims to have seen Steen there that morning,
his testimony is not reliable or credible, for the reasons previously discussed. Further, whereas Chase made a
specific threat to kill the victim less than 4$ hours prior to the murder, there is no testimony that Steen,
Breckenridge, or Bohrer made any threats against Heidi Allen prior to her abduction. Moreover, Chase had a
documented confrontation with the victim that provided him with a motive to kill, and he was overheard
telling someone at the victims home that they were going to get beat. Defendant has offered no evidence
of an altercation between Heidi Allen and any of the three men. Likewise, aside from a speculative motive
that the abduction was drug related, Defendant has not demonstrated any reason for the three men to kidnap
and kill her.

Oxley, 64 A.D.3d at 1082.

Most significantly, this case is distinguishable from Oxley because there is no forensic evidence
linking any of the three men to the abduction; nor is there evidence establishing an instrument related to the
crime. Chase specifically mentioned that he beat the victims brain in with a bat, and authorities later found a
bat that had the victims blood and hair on it. See 64 A.D.3d at 1082. In our case, Defendant sought to
establish that Heidi Allen was buried beneath a cabin on a wooded property on Rice Road; however, he has
provided no forensic evidence in support of that claim. In fact, surrounding circumstantial evidence (i.e.
61

Darcy Purdys residence) has shown that claim to be demonstrably false. Further, although Heidi Allen is
presumed dead, her remains have never been recovered. Consequently, theres no way to compare her cause
of death to the statements purportedly made by Steen, Breckenridge, and Bohrer.
The People recognize that defendant is not always required to establish that the third party was with
the victim on the day, or at the precise location, of her disappearance in order to establish the relevance of
third-party culpability evidence. The strength of evidence necessary to establish the admissibility of proof
relating to a third partys culpability depends, upon other things, the nature of the crime. See DiPippo, 27
N.Y.3d at 140, comparing to People v. Negron, 26 N.Y.3d 262, 269 (2015). Tn DiPippo, the court
understood that the defendant could not produce direct proof tying the third party to the crime scene because
the exact time and place of the crime were subject to dispute given the circumstances of the victims
disappearance and the lengthy time that elapsed before her body was discovered. Id.. However, even under
those circumstances, the Court of Appeals did not abandon the need for additional corroboration. The court
found that third partys hearsay declarations were supported by the unique modus operandi evidence, as well
other proof that connected him to the victim at the approximate time of her disappearance.

Id. at 141. Such

other proof consisted, in part, of the fact that the third party had an established relationship with the victim
and that had access to a vehicle matching the description of the suspect vehicle.

$ DiPippo, 27 N.Y.3d at

131.
This case is distinguishable from DiPippo, at least in part, because we know the location and
approximate time that Heidi Allen was kidnapped. Further, unlike DiPippo, Defendant has not shown that
three men owned or had easy access to the type of vehicle used to commit the crime, whereas Defendant was
specifically linked to the exact van that was identified by prosecution witnesses as being at the D&W store
that morning. Moreover, this case is most distinguishable from DiPippo because Defendant has failed to
proffer sufficiently unique modus operandi evidence that would clearly connect Steen, Breckenridge, or
Bohrer to this particular crime.

f. DiPippo, 27 N.Y.3d at 134 (victims were hogtied and had clothing

placed in their mouth).

62

Defendants failure to present any credible independent evidence to corroborate his alleged
admissions takes on greater significance because Tonya Priests story is directly contradicted by established
facts set forth in the record. In the version of events recounted by Priest, when the three men arrived at the
store, Breckenridge went through the front door and Steen entered through a side door and eventually
grabbed Heidi from behind the counter. See A.2417. While the D&W store has two sets of doors, shortly
after Heidi was discovered missing, law enforcement examined the store and documented that only one set of
doors was open. The door behind the counter (side door) was locked. (Tr. 1424-25) Consequently, it was
physically impossible for Steen to kidnap Heidi in the manner described by Priest.
In evaluating the reliability of the statements attributed to Steen, this Court must also review all of
the surrounding circumstances, including the fact that Defendant has offered testimony / evidence showing
that Steen allegedly made inconsistent and contradictory statements to Priest and Megan Shaw. According to
Priest, Steen claimed that the three men committed the kidnapping, killed her, and then buried her beneath a
cabin on Rice Road in the Town of Mexico A.2417-1$. According to Shaw, Steen claimed that members of
the Vicious Circle motorcycle club kidnapped and killed Heidi. In this version, Steen was, at best, an
accomplice after the fact who helped dispose of her remains on a property in the Town of Parish. (HT 75961). The blatant and significant discrepancies between the two versions calls the inherent reliability of both
statements in to question. See People v. Nicholson, 10$ A.D.2d 929, 930 (2nd Dept. 1985) (statements
lacked sufficient indicia of trustworthiness when declarant offered two different versions of what happened
and later absconded). The conflicting nature of these accounts points to the inherent falsity of at least one, as
both cannot be true. In the absence of outside evidence to provide an indicia of reliability to either, neither
version can be considered credible, as a person who lies about one story is equally capable of lying about the
other.
Based upon the nature and quality of the evidence presented by Defendant at the hearing, it is
unclear whether Steen, Breckenridge, or Bohrer actually made some of the attributed statements. For the
sake of argument, even if this Court were accept that they actually uttered each statement set forth by the
defense, the fact that the words were spoken do not render them true. As the Court of Appeals has
63

recognized, people may prevaricate, despite the consequences to themselves, to exculpate those they love or
fear, to inculpate those that they hate or because they are inveterate or pathological liars. Settles, 46
N.Y.2d at 16$. (emphasis added) Thus, the court reasoned that human motivation and personality renders
the stated reasons for permitting these declarations immediately suspect.

It is for that reason that

Defendant is required to present evidence, independent of the statements themselves, to establish their
reliability and trustworthiness.
In support of his motion, Defendant has primarily sought to establish the culpability of Steen,

Breckenridge, and Bohrer through various statements and purported admissions that they have made over the
years. Essentially, Defendant has argued that the hearsay declarations corroborate each other and point to
their validity. However, corroboration of hearsay declarations is not furnished merely by producing
additional hearsay. See Comstock v. Goetz Oil Corporation, 11 A.D.2d $47, $67 (3rd Dept. 1960), quoting
Platt v. Lee, 9 A.D.2d 799 (3rd Dept. 1959). Repetition of a lie doesnt make it true.
For all of the reasons set forth above, the hearing court correctly concluded that Defendant failed to
provide independent evidence to establish the reliability of the hearsay declarations attributed to Steen,
Breckenridge, and Bohrer. There is no competent evidence to corroborate the statements attributed to them.
In the absence of any indicia of reliability or trustworthiness, he has failed to establish the necessary fourth
element to admit the statements as declarations against penal interest, thus rendering them inadmissible
hearsay.
In addition to failing the necessary fourth prong for the admission of declarations against penal
interest, Defendant also failed to establish other necessary prongs in regards to certain witnesses, as
discussed by the hearing court. A.62-72. Those witnesses are discussed individually below.
Joseph Mannino testified that Steen told him that Heidi Allen was a rat and that Steen had hauled
the van used to abduct her to Canada. (HT. 640-41). Mannino acknowledged, however, that the statement
could have been mere conjecture because Steen never explained how he knew that he had hauled the
particular van containing Heidi to Canada. (HT. 646-47). Additionally, Manninos testimony was, as the
hearing court found, inconsistent with his sworn statement. (HT. 651-52). The hearing court found, based
64

on the hearing evidence, that no corroboration existed to show the trustworthiness of this testimony. A.62-63.
Additionally, since Steen failed to set forth his basis of knowledge, the statements also failed to satisfi the
third prong for admitting declarations against penal interest.
Amanda Braley testified that she was at a party at Rodney Shaggy Wests house in 2006 or 2007
when she heard James Steen say You know me, Shaggy, Im not afraid to go to prison, Ill go for anybody,
and I can, however, tell you I will never see a day in prison for what we did to Heidi. (HT 673). This
evidence, however, was not set forth in the affidavit she gave to Defendant. (Hf 689-93). The hearing court
determined that Braley was not credible since she failed to disclose this particular statement in her affidavit
to Defendant. A.66. Braley also provided testimony regarding Roger Breckenridge. In 2002 or 2003,
Breckenridge reportedly said that he took that bitch to the scrap yard in the van, they had it crushed, and
that she was shipped to Canada. (HI 669-70). Braley claimed to believe this statement but still voluntarily
socialized with Breckenridge after hearing his statements. (Hf. 676-81). Further, while she claimed that she
believed his statement, Braley admitted that she went into the woods with Tonya Priest to look for Heidis
remains in 2006. (HT. 694-95). Searching in the woods for Heidis body directly contradicts Braleys
purported belief that Heidi had been crushed and shipped to Canada. If she did not actually believe that
Breckenridges statements, it is reasonable for the hearing court to question the reliability of her testimony or
the statement.
The hearing court concluded that Ronald Clarkes testimony regarding Steens statements that Heidi
Allen was long gone now, gone to Canada, and that the police had the wrong guys were not shown to be
based upon personal knowledge. A.67. As Clarke acknowledged, Steen did not state a basis of knowledge
for that statement. Since Steen never admitted to being involved, he simply may have been expressing an
opinion or belief on the subject based upon hearsay or speculation. (HI. 1063)
Megan Shaw testified that, on two occasions in 2010, Steen told her he disposed of Heidi Allens
body in order to be part of the Vicious Circle Motorcycle gang. (HI 759-61, 767-6 8). According to Shaw,
Steen told her that Heidis body was in a cabin in Parish, and he showed her the location on his phone. (FIT
760-61). At no point did Steen admit to kidnapping or killing her. Even accepting Steens purported
65

statements to Shaw as true, the most serious offense he could face was Tampering with Physical Evidence, a
Class E Felony. NYS Penal Law

215.40. Presuming the disposal took place shortly after the

kidnapping, the statute of limitations for the offense would have expired in 1999.
Procedure Law

$ NYS Criminal

30.10(2)(b). Consequently, the statements were not against his penal interest at the time

they were made and are therefore inadmissible.

Moreover, Steens alleged statements to Megan Shaw are directly contradicted by the testimony of
Lance Mason, a retired Deputy Superintendent for the NYS Department of Corrections and Community
Services. Mason testified that the Vicious Circle Motorcycle Club was not founded until 2000, six years
after Heidi Allen disappeared. (HT 2329-31). The hearing court found Mason to be credible and credited his
testimony. finding that Shaws testimony was not reliable or trustworthy, the hearing court correctly deemed
it inadmissible. A.6$.
Christopher Combes testified that some time in the early 2000s, Roger Breckenridge told him that
We chopped her up, put her in a wood stove and put her in a vehicle and sent her to Canada. (HI 1129-31).
Combes never told the police about the statements until the Summer of 2014 because he did not take them
seriously. (FIT 1131-34). Given the circumstances in which the statements were made, and the way in which
Combes responded to the same (or failed to), the hearing court did not believe Breckenridge made the
statements to inculpate himself. A.69. Even if those statements were contrary to Breckenridges penal
interest, Defendant has failed to provide any independent evidence establishing the reliability of those
statements as required by the fourth prong. This Court should therefore hold that such statements are
inadmissible as declarations against penal interest.
Jessica Howard testified that Breckenridge told her that Heidi Allen was a rat and would not be
found. (HI 1150-51). During her testimony, Howard acknowledged that she was under the influence of
medications and admitted that they impacted her mental faculties, including her ability to recall events from
years ago. A.69. (HI 1167-7 1). Further, as the court noted in its decision, Defendant tried to admit a photo
that Howard had taken of a photograph that she claimed showed Heidi Allen, Roger Breckenridge, and
James Steen at the same party. Defendant ultimately withdrew his request, and the photo was not admitted,
66

when Defendant learned that the female was not actually Heidi. This Court should find that the lower court
had an ample basis to find Howards testimony unreliable and untrustworthy.
Tyler Hayes testified that he met Michael Bohrer at the Liberty Bell bar in 2000, at which time
Bohrer said I know who did it and I know the whereabouts of Heidi Allens body. (HI 200-0 1). These
statements, as pointed out by the hearing court, were not admissions that Bohrer was involved in the
abduction. A.71. Without some kind of admission of wrongdoing by Bohrer, Hayess testimony does not
fall within the declaration against penal interest hearsay exception.
Finally, Danielle Babcock testified that Bohrer made her uncomfortable by telling her, her sister, and
a coworker that he would do us like he did Heidi. (HT 632, lines 20-25). Babcock did not take the
statements seriously and never reported them to the police because she thought they were vague threats.
(HI 635). Accordingly, the hearing court did not view these statements as reliable or trustworthy enough to
warrant admission at a trial. A.72. Furthermore, the statement attributed to Bohrer does not have a clear
meaning and is subject to multiple interpretations. A jury would be left to speculate what he meant. Even if
the statement indicates that the Bohrer had malicious feelings about Heidi Allen, to the extent that the
statement is speculative, this Court should conclude that it would be inadmissible at trial. See People v.
Winchell, 129 A.D.3d 1309, 1312 (3rd Dept.), lv. den. 26 N.Y.3d 973 (2015) (court properly precluded
statement of thfrd party who expressed interest in robbing the victim at some point).
A review of the hearing courts decision shows that the court carefully analyzed all of the evidence
and evaluated it against accepted evidentiaiy standards. The court considered whether the prospective
evidence was irrelevant, speculative, or too remote to be probative. Further, the court looked appropriately
assessed whether Defendant had satisfied the standards for introducing third-party culpability, including
whether the hearsay statements attributed to Steen, Breckenridge, and Bohrer could be properly admitted as
declarations against penal interest. In all instances, the court found that the proffered evidence was
inadmissible under one or more evidentiary rules. Finding that the evidence could not be admitted at trial,
the court correctly ruled such evidence did not constitute newly discovered evidence under CPL
A.72, citing to Tankleff, 49 A.D.3d at 182.
67

440.10.

Given the hearing courts ability to observe and assess the witnesses, the courts credibility
determinations should be given great weight and should not be disturbed unless clearly erroneous. $
People v. Stokes, 212 A.D.2d 986 (4th Dept.), lv. den. 86 N.Y.2d 741 (1995), citing to People v. Prochilo, 41
N.Y.2d 759 (1977). Likewise, since trial courts have broad discretion in making evidentiary rulings in
connection with the preclusion or admission of testimony, and since the hearing court did not abuse its
discretion, this Court should affirm the evidentiaiy rulings made below. See People v. Almonor, 93 N.Y.2d
571, 583 (1999), citing to Aska, 91 N.Y.2d 979.
Even if this Court disagrees with the evidentiaiy rulings of the hearing court and determines that the
newly discovered evidence proffered by Defendant would be admissible at trial, this Court should still affirm
the decision below, as the admission of such evidence would not result in a different verdict. As this Court
previously stated, the People presented overwhelming evidence of Defendants guilt at the initial trial. Such
evidence consisted of witnesses who placed Richard Thibodeaus van at the D&W store during the very brief
window during which the abduction occurred. Nancy Fabian also saw the van operating erratically on State
/

Route 104, and her description of the driver matched Defendants appearance. Despite Defendants protests
otherwise, the Peoples witnesses credibly placed Defendant with his brother (and the van) that morning.
Indeed, multiple neighbors saw Richard Thibodeaus van at Defendants residence, and other neighbors heard
a male and female screaming at the relevant time period. (Defendant has never offered any explanation for
the screaming.) Further, the credible testimony of his two fellow inmates, who received nothing in exchange
for their testimony, showed Defendant making inculpatory statements and disclosing information that only a
guilty party would know. Moreover, through the testimony of Nelson, Defendant revealed to the jury that he
had particularized knowledge of Heidi Allens abduction before that information had been made public on
television. The evidence presented at the hearing would not created reasonable doubt in a jurors mind.
For all of the foregoing reasons, this Court should affirm the denial of Defendants CPL
motion and deny the relief requested.

68

440.10

POINT W.

THE REARING COURT iNDIRECTLY ADDRESSED THE ACTUAL

INNOCENCE CLAIM WREN IT FOUND THE EVIDENCE WOULD NOT
RESULT IN A DIFFERENT VERDICT.

Admittedly, the Hearing Court did not explicitly rule that Defendant was not actually innocent.
Indirectly, the Court found that defendant was not actually innocent. However, the court stated that it was
hard pressed to see how any of the claimed newly discovered evidence presented at the hearing, if allowed at
trial, would likely result in different outcome. In holding that none of the evidence presented by Defendant
would have resulted in a different outcome, the hearing court implicitly found that Defendant failed to
establish his actual innocence, and this Court should affirm that decision. To the extent that this Court finds
that the lower courts analysis was insufficient, or should this Court chose to independently review this issue
in the interest ofjustice, it should find that he failed to establish his actual innocence for all of the reasons
discussed throughout this brief. Thus, this Court should deny his motion under CPL
affirm his conviction.

69

440.1O(1)(h) and

CONCLUSION
For all of the foregoing reasons, the hearing court correctly decided all matters of fact and correctly
ruled on all matters of law. The hearing court properly concluded that Defendant failed to establish that the
People committed a Brady violation. Indeed, the competent hearing evidence demonstrated that the disputed
documents were disclosed and that Defendants attorney actually possessed and utilized those reports.
further, after assessing the credibility and reliability of witnesses, the hearing court properly concluded that
Defendant has failed to offer sufficiently reliable new evidence that would be admissible at trial and which
would result in a different verdict. Although not directly addressed, implicit in the hearing courts final
Decision is a finding that he is not actually innocent.
WHEREFORE, this court should affirm the lower courts Decision in its entirety and should deny the

relief requested.

Dated:

January 6, 2017
GREGOThY OAKES
District AffJrney
.

Oswego County DAs Office

39 Churchill Road
Oswego,NY 13126
(315) 349-3200

cc: Lisa A. Peebles, Esq.

federal Public Defenders Office
4 Clinton Square, Third Floor
Syracuse, NY 13202

70

SUPREME COURT OF THE STATE OF NEW YORK

ppettat ibiion, fourtj 1ubicia1 1partmnt

PRESENT: WHALEN, P.S., CENTRA, PERADOHO, DEJOSEPH, AND SCUDDER, JJ.

KA 16-005 10

DEC 23 20U5
THE PEOPLE OF THE STATE Of NEW YORK, RESPONDENT,
V
GARY THIB ODEAU, DEFENDANT-APPELLANT.

Indictment No: 94-16 1

Respondent having moved for permission to file a respondents brief in excess of the
page limitation prescribed pursuant to 22 NYCRR 1000.4(f)(3) on the appeal taken from the
decision and order of the Oswego County Court dated March 2, 2016,
Now, upon reading and filing the affirmation of Mark Moody, Esq., dated December
1,2016, the notice of motion with proof of service thereof, and due deliberation having been
had thereon,
It is hereby ORDERED that the motion is granted and respondent is permitted to file
a 125 page brief, and
It is further ORDERED that the time to file and serve a respondents brief is extended
to January 18, 2017, and

it is further ORDERED that the time to file and serve a reply 1rief is extended to
February 2, 2017.

Entered: December 19, 2016

FRANcES E. CAFARELL, Clerk