This is a proceeding wherein the defendant has moved for relief pursuant to C.P.L. §440.10(1)(b),(c),(f),(g) and (h). She was convicted after a jury trial of one count of sodomy in the second degree, one count of sodomy in the third degree (both as to complainant CB), bribing a witness (DM), and four counts each of criminal impersonation and falsely reporting an incident. The jury acquitted with respect to a second bribery charge and a charge of tampering with a witness both relating to DM and was unable to reach a unanimous verdict as to alleged sexual offenses against DM.
The court denies the motion to vacate judgment.
In November 1082, CB was born. According to his testimony, defendant’s sex relationship with her began when he was thirteen, as he was graduating from the Montessori school owned by defendant’s family. Defendant, on the other hand, argued that her sexual relationship with CB began only after he reached the age of consent. According to DM, defendant’s sexual relationship with him began in 2001, when he was twelve, shortly after he arrived at the school. DM left the school in March 2002.
The relationship between CB and defendant ended in December 2004 or January 2005. From that time through March 2005, defendant, using the name LV, made a series of false complaints against CB, who had become a police officer, to the Civilian Complaint Review Board and police officials. DM was present for one of the calls, at the end of January 2005, and, as the recording shows, defendant tried to get him to participate. Defendant also made false 911 calls, which twice brought the police to the apartment where CB was living with family. CB heard a recording of one of the calls and recognized defendant’s voice. Several weeks later, at the end of April 2005, CB disclosed the underage sexual relationship to a superior.
DM testified at his deposition that the prosecutors promised him immunity for the criminal activities he admitted, at the hearing he testified as he had at trial that there was no promise of immunity. He had come on his own to assume well before trial that he would not be prosecuted. This testimony was credible and consistent with a credible testimony that there was no promise of immunity. Based on the credible evidence at the hearing, the court finds that there was no promise of immunity, implicit or explicit.
The court rejects the defendant’s assertion that the prosecutor who interviewed DM before the hearing engaged in deplorable witness manipulation. The court observed that DM is well educated and he was particularly changeable in reporting past conversations, possibly conflating his assumptions and inferences from whatever source with what was actually said, unless asked questions which made him distinguish carefully. From the credible evidence, encouraging DM to distinguish carefully between promises, predictions and assumptions is what the prosecutor did during the pre-hearing interview. There was no misconduct.
The defense argues that the court should consider DM’s deposition testimony on the immunity issue for its truth. In People v Settles, it was held that this is impermissible. In addition, the court factually rejects the argument that the deposition testimony, under the circumstances present here, was sufficiently trustworthy and reliable to satisfy defendant’s burden of proof. For example, defendant argues that DM was not led at the deposition into saying he had a promise of immunity.
Defendant argues that the court erred at trial by sustaining objections to cross-examination questions about whether the prosecutors had asked for details of DM’s prior crimes. The court finds that his argument is not properly raised on this motion. The court finds that this argument has its defects. The record reflects that when the court suggested at trial that DM’s state of mind about whether he might be prosecuted could possibly be relevant to credibility, if connected; defense counsel neither responded nor asked for clarification nor asked to make an offer of proof.
Defendant contends in her motion that contrary to DM’s testimony at trial, one of the prosecutors actually tried to get one of the charges against him in Connecticut dismissed. The argument asserts that DM’s suspicion — that defendant deliberately set him up for the probation violation charges by sending anonymous letters and photographs to his probation officer — predated his decision to accuse defendant and to cooperate with the D.A.’s office and accordingly was highly probative of a motive to falsify. The court agrees that there should have been disclosure.
DM testified at the hearing that he told C he was angry at defendant because he believed defendant had instigated the violation of probation proceedings and that he asked C to investigate and report to him because he thought the information that defendant set him up could help him get some of the more serious specifications dismissed. The court finds that with this, it is possible but highly unlikely that this suspicion could have developed in the very short time period between the violation of probation arrest and DM’s accusation of defendant on February 27. The court finds that there is no convincing evidence that either suspicion predated DM’s accusation of defendant.
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