Thibodeau Decision

8/20/2019 Thibodeau Decision

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At

a

Term of

County Court

held in and

for the

County

of Oswego a t Oswego New York

on the ~ day of March 2016

PRESENT:

HON.

DANIEL

R. KING

Acting County

Court

Jus t i ce

STATE OF NEW

YORK

COUNTY

COURT

OSWEGO

COUNTY

THE

PEOPLE

OF THE STATE OF NEW YORK

agains t

GARY

THIBODEAU

Defendant.

===========================================

CPL §440.10

Decision

KING,

J .

:

DECISION

AND ORDER

ORDER

Defendant

moved

th i s

Court

on

July

25

2014

to

vacate

his judgement of convict ion

entered

agains t him on

August

7

1995.

Defendant

argues

tha t his convict ion should be vacated

based on

the fac t tha t newly

discovered evidence

which could

not

have been discovered

dur ing t r i a l

would have

resu l t ed in a

favorable verdic t

for

defendant

CPL §440 . lO[ l ] [g ] ) ,

and tha t

because

the People fa i l ed

to provide Brady

mater ia l , the People

obta ined

defendan t s

convic t ion

through fraud and



m isrepre

sen ta t ion

CPL §44

0.10 [1] [b]

and [h]) .

D

efendant

sp ec i f ica

l ly

a l l eges

th a

t

the

Peop

le s

fa i lu

re to

d i s c lose m a

ter ia l Brad

y

evidence,

inc

luding th

e f u

l l

scope

of infor

mat ion

concer

ning A l len

s

s ta tus

as

a

co

n f id en t i a l

info

rm ant and

the

fac t

th

a t he

r inform

ation w

as publ ic ly exposed

,

v io

la ted Brady

to such

an

exten

t tha t

d

efendant sho

uld be gran

ted

a new

t r i a l .

F

urther ,

the in t roduc t i

o n of

newly

d iscov

ered eviden

ce,

t ha t

being

sta tem ents

about

M s. A llen s

kidnapping

made

by

th ree

men

, James

Steen

,

R

oger Breckenr

idge and

Michael Boh

rer,

would

r e s

u l t in a b e

nef i c ia l

outcome

and, th

e re fo re ,

defend

ant should

be grante

d

a

ne w t r i

a l . Defenda

nt a lso

contends tha t

s ta te

ments

m

ade

by Stee

n ,

Bre

ckenridge

and Boh

rer c o n s t i

tu t es e

vidence of

th i rd -p a r t

y

c u lpa

b il i ty

w

hich

w a

rrants a new

t r i a l .

Procedu

ral

Hist

ory

Defendant

was

convic ted a f t e r

a jury

t r

i a l

in

·Oswego

C

ounty

of f i r s t

-d e g r e e kidnapping

in

1995. Therea

f te r ,

de

fendant

appe

aled h is

conv ic

t ion,

a

s well as two o

rders th a

t ,

fo llowin

g

a

hear ing ,

deni

ed

h is

motion t

o vacate t

ha t judg

ment pursu

ant to

CP

L 440 .10

1) b),

c), ( f ) ,

g) and

h). T

he A p

pella te D iv

ision,

Four

th Departm

ent, a

ff i rmed d efendan t

s

co

nvict ion

see Pe

ople v.

Thi

bodeau, 2

67 AD2d

952 [1999]

), leave t

o app

eal was de

nied 95



NY2d 805

[2000]

and

denia l of habeas corpus was aff i rmed by

Thibodeau v. Portuondo, 486 F3d

61

[ ~ Cir . 2007].

As a resu l t

of

defendant s ins tan t motion, a

hearing

was held

dur ing the

months

of January, February,

March

and

Apri l

2015.

At the end of tes t imony in Apri l 2015,

both

pa r t i e s

requested an

adjournment pr ior

to the

c lose

of

the

hearing for

the

purpose of considering addi t ional discoverab le mater ia l and

potent ia l

witnesses.

n

November

2,

2015, t h i s

Court

i s sued

a

dec is ion

which

denied

add i t iona l

witnesses t e s t i fy i ng

and

evidence being presented

a t the hearing.

Both pa r t i e s

provided

t he i r

f ina l memorandums

of law to

t h i s Court for

cons idera t ion

before

the

Court i ssued

i t s

dec is ion

on the ul t imate

issues presented

a t the hearing.

Confident ia l

Informant: Brady

The Court wil l address the al leged Brady v io la t ion with

respect

to

the conf iden t i a l

informant

argument in

th ree

par t s .

Defendant

argues tha t he was not aware tha t

Ms

Allen was·

a

conf iden t i a l informant, and such evidence was Brady mater ia l

which the People

fa i l ed

to turn over.

Second, defendant

al leges

t ha t even i f Ms

Allen was not

used as a confident ia l

informant ,

the

People withheld

the f ac t

tha t

her

pedigree informat ion

with

3



code name and f ingerp r in t s was dropped in

the

D W

parking

l o t

in

1992

and

those fac t s

were

Brady

mater ia l .

Last ly, defendant

argues

tha t the

People

committed a

Brady v io la t ion by not

d isc los ing

the

nar ra t ive repor ts

by the

of f i c e r s involved in

re t r i ev ing Ms

Allen ' s informat ion from D W or the index

card

which

displayed her pedigree informat ion.

Based

upon the

hearing. record, both defendant ' s

a t torney,

now

Judge Fahey, and defendant ' s brothe r ' s at torney,

now

Judge

Walsh,

knew

of

Heidi

Allen ' s

contac t

with

law

enforcement about

i l l e g a l drug ac t iv i t i e s

pr ior

to t r i a l .

I t should also be noted t ha t

the

cons tant

references

by

defendant

tha t

Ms

Allen was

a

confident ia l

informant

i s

misleading and inaccura te .

Deputy Michael Anderson s repor t

s ta rk ly cont radic ts defendant ' s a l l ega t ion and c l a r i f i e s Ms

Allen ' s s ta tus with law enforcement:

Mafter the meeting was

over,

pa t ro l

expressed no i n t e re s t in using Al len as

an informant

as

she had no t rue informat ion tha t could

be

useful

to us.

Allen

was

never

formal ly s igned up

as

a

confident ia l

informant

and

the

case was never worked but l e f t

inac t ive .

(Exhibi t 10) .

Moreover,

Ms

Allen ' s informat ion

to

law enforcement in

1991

per ta ined to

f r iends

of hers

from high

school

who

were using

drugs ,

and

none

of her informat ion impl ica ted defendant ,

4



de fendan t s b ro the r , or Steen, Breckenr idge or Bohrer .

Furthermore, when Ms. Allen disappeared in Apri l o f

1994, Deputy

Chris topher

VanPatten who, along wi th Sgt . Roy

Lor t i e , had in te rv iewed Ms. Allen

in

1991 about the p o s s i b i l i t y

of be ing an informant ,

had no r eco l l e c t i o n

of

her being

used as

an informant u n t i l Sgt .

Lort ie

reminded

him

t ha t they met with

her

in 1991.

Judge

Fahey knew of Ms.

A l len s

a l leged CI s t a t u s

and

had

discussed it

with

Walsh

in

December

of

1994

HT p.

127

l i nes

7-13)

. Fahey

s t a t e d t h a t

the unde rshe r i f f

and

the

l i eu t en an t

of

the Oswego County S h e r i f f s Department ~ o n t e n d e d t h a t t he re was

no f i l e with

respec t

to

Heidi Allen being

an

informant

and

t ha t

whatever in fo rmat ion she

provided

was

not involving the

Thibodeausn HT

p. 127

l i n e s

18-20).

During

cross

examination,

Fahey

was

ques t ioned

about

other discoverab le documentation and hi s witness list

Q. Now

p r io r

to coming here

and

p r i o r to giving

your

a f f ida v i t s ,

had

you taken

any

s teps to

look

through

the

f i l e

t h a t you had

in

t h i s case

- -

A.

No.

Q.

- - s ince

the

t r i a l ?

A. I d o n t have

the

f i l e so

the

answer i s no.

Q.

So you ve never gone through

on your

own to

5



determine whether

any

of these

we

re discuss ing here today

are

f i l e , i s t ha t

accurate?

A Yes, t h a t s accura te .

documents

t ha t

ac tu a l l y

in the

Q We re so le ly here - - y o u r e so le ly here

based

on

your

own memory,

i s t h a t

accurate?

A Yes. HT

p. 921 l ines 5-18)

Also,

Judge Fahey

t e s t i f i e d

in good f a i t h

t h a t he could

not r e c a l l c e r t a i n documents he rece ived , for example

the

Lor t i e

repor t , even though he

had

i n fac t

rece ived

the document p r i o r to

t r i a l and had prev ious ly marked it as defense

Exhibi t M in

an t i c ip a t i o n

of

using

it a t t r i a l :

Q. Now i you could

t u rn to the

bottom

of

page

nine and page t en on

Exhibi t

5 which you

have

in

f ron t of

you, i s t ha t

the Roy Lort ie repor t?

A. Yes.

Q

So

you

marked

a t

t r i a l

an

exh ib i t

t ha t

has

t en

pages t ha t on

the

bottom

of

page seven

discusses

the

- -

discusses what t ime Deputy Cur t i s showed up

on the scene , and

then a t

the

bottom

of page e igh t

discusses the height and weight of Heidi

Allen ,

and

on page

nine

and t en h ~ the Roy Lor t i e

r epor t . I s n t it qui t e poss ib l e t h a t Exhibi t M i s

the same exh ib i t t ha t you hold i n f ron t of you?

A I t

i s .

HT p. 924 l i nes 9-20)

Judge Walsh t e s t i f i e d

t ha t the re

was a voluminous

amount

o f

i n v es t i g a t i v e repor t s which he and Fahey main ta ined

in

t h e i r separa te

boxes

of

f i l e s .

With

respec t

to each c o u n s e l s



organiza t ion of tha t

mater ia l ,

Walsh t e s t i f i e d

tha t

Fahey

had

brought him to h is a t t i c

before the

t r i a l and

Walsh saw the

condi t ion in

which

Fahey

kept

his f i l e s :

Q. Okay, and what

was the

condi t ion of his f i l e

when you saw t t ha t

day?

A

Well, t was

I

would say t was loosely

organized but t was t was so big

tha t

he

had

t

spread

out a l l over

his

a t t i c . I

mean

t was a

very la rge

room t ha t

t was in , and t was jus t -

there were

papers

everywhere. HT p.

1602

l ines

19-24)

Thus,

based

upon

Fahey

s

understandable

i nab i l i t y

to

recol lec t ce r ta in documents which

he

had in

his

possession twenty

years

ago, t

cannot be he ld

tha t the People committed a

Brady

v io la t ion based

upon the

fac t tha t Fahey

did

not

r eca l l having

received those documents pr ior

to

t e s t i fy i ng a t the hearing and

in sp i te of his admit tedly vague

memory

of

the

case.

Arguendo, even

i f t h i s

Court bel ieves tha t defendant

was not

w r ~

of Ms Al len s

in te rac t ion

with law enforcement

in

1991

or

tha t

her information had

been

dropped in

the

D W parking

l o t in

1992,

defendant

was

provided

th i s

mater ia l by

the

S h e r i f f s Department

and

the Dis t r ic t Attorney s Office .

The three repor ts defendant claimed

he

never received

were th ree nar ra t ives provided by deput ies

who

were involved in

the recovery of

Ms

Al len s information from the D W parking l o t . ·

7



Those three repor ts were the

s tatement

of Deputy Michael

Montgomery,

(Exhibi t

8), the s tatement of

Deputy

VanPatten

(Exhibi t 9 and the

s tatement

of

Deputy Michael Anderson

(Exhibi t

10

Former ADA Dodd t e s t i f i e d on di rec t

examination

tha t ,

as a

r e su l t

of Fahey s argument in,

cour t

on December 8, 1994, and

the comments he made to the Post tandard a t tha t t ime, Dodd met

with Fahey

on December 14,

1994 and

turned

over, in

par t , the

th ree depu t ies

narra t ives

as well

as

severa l

b o x e ~

of

discovery:

From my

di rec t reco l l ec t ion f i r s t , tha t on

December

fourteen, 1994, Attorney Fahey,

Judge

Fahey subsequently ,

came to

the

Di s t r i c t

Attorney s

Office .

I met with

him

in person a t the

Di s t r i c t

Attorney s

Office .

At tha t meeting was

Invest iga tor

Terrence Whipple who ~ s tasked and

ass igned to oversee the e n t i r e ty of the S h e r i f f s

Department invest iga t ion

repor t . On

tha t

date

for

severa l

hours,

Attorney

Fahey was allowed to

inspect

a l l

of the

Oswego

County

S h e r i f f s

Department invest iga t ion repor t which was

contained in a room within the D is t r i c t Attorney s

Office , t was

made

up of documents, photographs,

audio tapes . On

tha t

pa r t i c u l a r day,

he was

provided a

copy of the

Oswego County

She r i f f s

Department invest iga t ion

repor t , a

complete exact

reproduct ion

and

copy o ~

a l l

of the mater ia l tha t

was in the Oswego County S h e r i f f s Department

invest iga t ion repor t

on December

fourteen,

1994.

The

exhib i t tha t you

handed me, s i r , Exhibi t

12,

was the

f i l e memorandum

tha t

I

prepared descr ib ing

the procedure . HT p.

1659

l i nes 8-25)

On

cross

examination, Dodd

s pe c i f i c a l l y

addressed

the

8



t h ree

n a r r a t i v e s

as be ing

tu rned

over on December 14, 1994:

[Fahey] was provided . Ms. Bianco, again , on

December four teen th , 1994, the s ta tement of Deputy

Mike Montgomery, your

Exhibi t

8, he was

provided .

Your

Exhib i t

No.

9,

the

s ta tement

of

Deputy

VanPat ten,

he was

provided . I

d o n t

know i

t h e r e s

assoc ia ted

exh ib i t

number.

The s ta tement

of Michael

Anderson, I

be l ieve

it was

rece ived

December nine , 1994. (HT p. 1813 l i nes 5-10)

Not only did Dodd t e s t i f y to sp e c i f i c a l l y

turn ing

over

the t h ree

i n v es t i g a t i v e

repor t s , the People

in t roduced

Exhib i t

to

suppor t the

fac t

t h a t these

t h ree

repor t s were,

in

f ac t ,

turned over

in

December 1994. Exhibi t i s a photocopy

o f

VanPat ten s repor t , date stamped December 9, 1994, t h a t bears

Dodd

s

handwri t ten notes : MY

COPY HA

BRADY

CC

TOT

BOTH D

ATTN . Dodd t e s t i f i e d

what hi s

handwri t ten

notes re f l ec ted :

Q.

Showing

you again

Exhibi t

admi t ted , you were asked

some

some

of

them

are

going

to

be

a

. you wrote

some

th ings on the

exac t ly

did you

wri te?

A. In my hand, my copy, H-A.

which i s now

quest ions now

and

b i t

r e pe t i t i ve

but

top

of t ha t .

What

Q. Let

me

j u s t

s top

you

the re . H-A

s tands

for

what?

A.

Heidi

Allen .

Q.

Okay,

con t inue .

What e l s e

did

you

wri te?

A.

Brady,

C-C, carbon

copy,

T-0-T, turned over to

both

defense

a t to rneys .



Q. Now you wrote

T-0-T,

t h a t

obvious ly

anagram,

not

an anagram,

i n i t i a l s

I

guess .

had

not

tu rned t over ,

would

t he re have

d i f f e r e n t n o t a t i o n on t h e re

based

on what

with documents?

i s an

I f you

been a

you

do

A. Well,

t

was

tu rned

over .

I - - perhaps yes ,

but

I

- -

t h i s

was again

a work

product

so t h a t I knew

what t i s t h a t happened with

t h ese documents .

Q. Okay, and

b es id es

t ha t , t h e r e s othe r w r i t i n g

on t h e re?

A. Yes. n page one of rece ived QQQ in my hand

t h e r e s a high l igh ted in green ink and /or b lue ink

and /or pink

ink

ce r t a in

por t ions

o f

Deputy

VanPat ten s

r ep o r t

which was

rece ived 12/9,

1994,

page two, the same t h i n g as

to Deputy

Michael

Anderson in e i t h e r pink, blue or green.

I

put t

on these work cop ies ,

and

as

to

the t h i r d

por t ion

of the e x h i b i t , rece ived in e i t h e r

blue

o r green

ink

from Michael Montgomery.

Q. And those were th ings t h a t

you

- - you had noted

t h a t were

important

to you o t h e r

than

tu rn ing t h i s

over .

A. Yes.

Q.

Okay? And when you when you wrote Brady,

why

did you wri te t h a t on there?

A.

Because p o t e n t i a l l y

the con ten t o f t h e t h ree

documents con ta ined in format ion o r evidence

p ro p e r ty t ha t may t end to be excu lpa to ry , Brady.

Q. Was t h e re o t h e r

the

course

o f

t h i s case t ha t

mat e r i a l t h a t

you had

noted in

o f rev iewing the documents in

you

perce ived to be

p o ten t i a l

Brady

were

tu rned

over?

n

nature

t ha t

A. Yes.

Q. Now t h a t s - - you sa id t h a t was r ece iv ed

by

10



your

off i ce on December ninth , the day a f t e r

tha t ,

the discuss ion in cour t . Do you have

any

idea or

any reco l l ec t ion whether or

not

tha t

would have

been in boxes tha t were turned over

to

Judge Fahey

on December fourteenth?

A In fac t , those documents were turned

over

personal ly by myself to Attorney Fahey on December

fourteenth, 1994. They were

contained within the

Oswego County

S h e r i f f s Department invest iga t ion

report . HT pp.

1668-1670)

Dodd

also

t e s t i f i e d tha t before

defendant s t r i a l began

on

May

22, 1995, he sent

a

l e t t e r dated

May

17, 1995 to

both

at torneys

and

copied

the

t r i a l

cour t

on t h i s

correspondence

(Exhibi t

l lA).

This

May

17, 1995

l e t t e r

re ferenced the mater ia l

which

Dodd

had r ecen t ly received which was

Inv.

Nicholas

K l e i s t s

May 16,

1995 nar ra t ive ,

Ms

Al len s . index

card

and

Inv.

Van Pat ten s notes tha t were re t r ieved

from

the

D W

in 1992

(Exhibi t l lA) .

This

Court

has .no

reason to

quest ion

tha t t h i s

informat ion was

not

provided to both counsel and the t r i a l cour t

in l igh t of the fac t tha t Dodd s tes t imony underscores the

May

23, 1995

date

stamp

a t tached

to

the May 17,

1995

l e t t e r

and which

was also located in the t r i a l

cour t s

or ig ina l f i l e (See Exhibi t

l lA) .

Per

defendant s

request

to

have

t h i s

Court review

the

t r i a l

cour t s or ig ina l

f i l e ,

th i s Court

reviewed

the or ig ina l May

17,

1995 l e t t e r which was date stamp received by Jef ferson County

11



Court on May 23,

1995.

Despite the

fac t

Bianco t e s t i f i e d t ha t she had not seen

the three i nves t iga t ive repor ts un t i l

2014,

the Court c redi t s

Dodd

s thorough tes t imony

tha t

he did, in fac t , provide

these

three repor ts to

Fahey

in

December

1994. Moreover, t would not

make

sense t ha t the People

would not

turn

over

these

r epor t s

sh o r t l y a f t e r they

received

them

in l igh t of the fac t the

th ree

of f i c e r s were i n s t ruc ted

by

Lt. Dean Goodsel l to dra f t

these

nar ra t ives almost three years a f t e r the information

was dropped.

I t does not make

sense

t ha t Lt. Goodsel l

would

i n s t ruc t these

of f ice r s

to make wri t t en

s tatements i f the s tatements

u l t imate ly

were not to be

turned

over.

The fac t tha t the

May 16,

1995

document,

which was

Inv.

K l e i s t s report , was

stamped received by

the

D is t r i c t Attorney s

of f ice

on

tha t same

date ,

and

the

fac t

t ha t

S h e r i f f s

Off ice da te

stamps

tha t

same repor t a week l a t e r

on

May 23, 1995,

corrobora tes Inv.

Whipple s

tes t imony HT pp.

1503-1504)

Whipple t e s t i f i e d

tha t

Inv. Herbert Yerdon and Kle is t were tasked

with t ry ing

to

f ind the documentat ion on

Ms

Allen

and

once they

found i t ,

they were d i rec ted

to

br ing

t immediately · to the

D is t r i c t Attorney s Office so tha t t

could be

tu rned over.

Further , despi te the fac t Bianco t e s t i f i e d tha t she had

12



not

seen

the

May 1995 l e t t e r and the

a t t ached index

ca rd and

handwri t ten no tes

u n t i l 2014,

it i s c l ea r , upon a review of the

trial

c o u r t s

f i l e , t ha t the t r i a l

co u r t

rece ived t h i s same

l e t t e r sen t to defense counsel

on

May 23,

1995. I t

i s co n t r a ry

t o log ic to

argue

t h a t the

t r i a l cour t rece ived

t h i s

l e t t e r on

May 23,

1995 but

t ha t ne i the r

trial

counse l

r ece iv ed it wi thout

the a t t ached documenta t ion.

t i s

important

to note

t h a t dur ing Dodd

s

t e s t imony ,

he

r e fe ren ced

the

Peo p le s

ongoing duty to tu rn

over

discoverab le

mate r i a l s .

During cross examinat ion,

he

was ques t ioned about

tu rn ing over Ms. A l l e n s in fo rmat ion card aga in under a separa te

l e t t e r

on June

5, 1995.

A fte r

a

rev iew

o f the trial

c o u r t s

f i l e , desp i t e ques t ions from defense counse l t h a t the

June 5,

1995

l e t t e r was

not dra f t ed

on l e t t e r h ead

(Exhibi t SS)

in t imat ing

t h a t

sa id

l e t t e r and

re ferenced

mate r i a l s

were

never

sen t ,

the trial

c o u r t s f i l e conta ined

t h a t

June

th

l e t t e r on

l e t t e r h ead .

Again,

t h i s

l e t t e r underscores Dodd

s

t e s t imony

. t ha t

Exhib i t

SS

was on

a d ra f t yel low

piece o f paper and not on

l e t t e r h ead

because he wanted to save money

HT

p.

1690 l i n e s

14-

16) .

The

fac t

t ha t the

l e t t e r (Exhibi t SS) i s not p r in t ed on

l e t t e r h ead shows

t h a t

Dodd was t r u t h fu l because

hi s working

copy

13



was

in

fac t ,

on a pla in piece of paper.

I t should

be

noted t ha t

the

t r i a l

cour t ' s

f i l e has

l e t t e r s from

Dodd

on both

l e t t e rhead

and

pla in

yellow

pieces of

paper, which lends to his tes t imony

t ha t ,

s ince so much

correspondence was

being

sent in

th i s

case, he was t ry ing to save

money

in not exhaust ing l e t te rhead .

Ult imately ,

t h i s Court

cannot begin to

specula te

as to

why

appe l la te counsel

Bianco

only

found a copy of the

Kle is t

repor t in Richard Thibodeau 's f i l e

and

did

not

f ind the May

17,

1995 l e t t e r or Kle i s t ' s repor t in defendant ' s f i l e .

However

Bianco t e s t i f i e d tha t

she

did

not

rece ive

defendant ' s f i l e

un t i l

sometime

a f t e r

the not ice of

appeal

was

f i l ed but

tha t she

cou ldn ' t be ce r t a in

on

tha t , given

the

fac t t ha t she and

Fahey

were kind of shar ing the boxes because he

was

st ll involved in

the

case

a t tha t

point

HT pp.

69-70

l i nes

24-25,

1-3) .

I t

i s

en t i r e l y

poss ib le

tha t

with

the

sharing of f i l e s and uncer ta in ty

of da tes tha t the May

17,

1995 l e t t e r and the r epor t

were

misplaced.

Final ly , even

i f th i s Court

were to

take the

pos i t ion

tha t ne i the r

counsel

received the

Montgomery Report

dated

December

8,

1994 and date

stamped by

the Oswego County Sher i f f on

December 9, 1994 (Exhibi t 8),

and

the

VanPatten Report

(Exhibi t

4



9

or the An

derson Rep

ort Exh

ibit 10)

, both o

f which w

ere d te

s

tamped y t

he O

swego Cou

nty Sh e r if f on

Decembe

r 9,

1994, the

fac t th a t Ms

. A lle n

s

i

nformat ion

was droppe

d i

n

pa

rking

l o t over

tw

o years p

r ior

to her

disappeara

nce i s

too remote

and too

specu la

t ive to

have

been

a

llowed a t

t r i a l .

D

efendant

p ara l l e l s

his

a

rgument

an

d

the

People s

co

nduct

to the

fac ts

presen ted i

n

People

v. W r

ight, 86

NY2d 591

1995)

.

In Wright,

sup

ra , the

Co

urt

of

A

ppeals

overturn

ed a

d ef

endant s

convic

t ion a f

t e r hold

ing t ha t

the pro

secut ion

withheld B

rady m

ater ia l concern

ing an

assau l t

vic t im s

s t a tu

s as

a

p o l ice info

rmant .

In Wright,

a f t e r the

male

vic t im

met the

female

defendant

in

a

bar , they

went

to defendan

t s apa

rtment.

Despi te

conf l i

c t ing

s to

r i e s ab

out

the reasons

for g

oing

to

de

fendant s

apartment, defendant

s truck

the v ic t im

with

a

knife

t ha t

re su l ted

in a lace ra

t ed penis .

Defe

ndant

cla

imed

she

in ju red the v ic

t im

in se l f

defense

be

cause

he

t r i ed to rape

her . Du

ring p a

r t of the

P eo

ple s cas

e, the Peopl

e

asser ted th a t

the ma

le

v ic

t im fa i l e

d

to

seek medic

al

t rea tme

nt

because

he

bel iev ed

the

pol ice would

not

help

him once

they b

ecame

aware of

his crim

in l h is

to ry .

H

owever, the Peop

le did

n

ot

d isc lose

t

h a t the

male v ic

t im was

an

act ive

conf iden

t ial inform

ant and

tha t ,

to

t

he c

ontrary , the

15



vict im

worked close

ly w ith

the

pol ice .

The Court r

easoned t ha t

i f th

e ju

ry had le

arned tha t

the

vic t im

had a w

orking

re la t ions

h ip w

ith the

pol ic

e , h is

e f

for t s

to

circumv

ent

po l ice

discovery

mig

ht

have

appeare

d

even

m

ore suspici

ous

and

overturn

ed defe

ndant ' s

convict io

n

W

right,

supra

a t

598).

H

owever,

the fac t

s in defen

dant 's

case are

more

ap p

licab le t

o

those

pres

en ted in People

v. Ga

mble, 72 A

D3d 544

[P ' De

pt. 2010], a

ffd . 8 NY d

386

[2012].

In Gam

ble, the

A pp

ellate

D ivision

hel

d

tha t

the

t r i a l cour t :

proper ly

exerc i se

d i t s d is

c re t ion

in prec l

ud ing

backgrou

nd info

rm ation

about

one of th

e

vict im

s,

offered

by

defendant

to

show

tha t unkn

own

persons

may have

had

a m

otive

to k i l l

him. For

the

purpose

of es ta b li

sh ing , am o n

g other

th ings

,

th a

t

defendant

had a moti

ve t

o k i l l the vict

ims , th

e

People

h

ad

i

n t roduced

evidence

of a

lengthy

ongo

ing dispu t

e

between defe

ndant an

d

t

he

v

ict ims,

who l ive

d in

the

ap

artment

abov

e his . Defendan

t

s

ought

to

es tabl is

h tha t

o

ne

of

the

v ic ti

m s was a

drug

d ea ler ,

had

offered

to

become

a con f iden tial

inform

ant, and

had been

beaten by u

n ident i f ie

d

perso

ns approxim a

tely a

year and a ha l f

before th

e

homicid

e. The

t r i a l court

properly conclu

ded t ha t

th

is evidence

was unduly

spec

ula t ive ,

and

~ h t

i t s

pre jud ic i

a l e f fe c

t

outw

eighed

i t s proba

t ive

value

see People

v.

Primo, 96 N

Y2d 351

[2001])

.

Defen

dant

acknowled

ges th a t t h i s

evidenc

e did no

t

po

int

to the

c

u lp abi l i ty

of

any

par t ic

u la r th

i rd-

par ty ,

but

ar

gues th a

t t

was re lev

ant to rebu t

th

a t por

t ion of the

Peop le

's case th a

t

l in

ked

defendant

to

the

crime

by

w ay

of

m otive.

Although

the

Peop le 's

evid

ence

of motive c

lose ly co

nnected

defendant ,

in

pa r t i c u la r

, to the crime,

t

did not

op

en

the do

or

to genera l

ized , spec

ula t ive evid

ence

of

poss ib le

motives

by

un iden t

i f iab le p

ersons .

16



More

over,

apar t

from defendan

t 's tes

t imony,

the re

was no evide

nce sug

gesting th a

t someone

other than

defen

dant was

th

e

k

i l le r (Gamble

, sup

ra

a t

545).

Defend

ant s

arg

ument t ha t ,

i f

defendant

had known

of

Ms

Al len

' s conf iden t i

a l informant

s

ta tus

or

th a

t h

er inform a

tion

had been dr

opped

in the

D

W

l o t over two

years p r ior

to her

d

isappearan

ce

th

a t

s

uch in

form ation

could ha

ve b

een used

a t

t r

i a l , i s

without m

erit .

I t i s ce r t

a in ly

poss i

b le

t

ha t Judge

Fa

hey was well

awa

re of the con

tents in

M

ontgomery

s, V anPa

tten s

an

d

And

erson s

r epor t

s

an

d conscio

usly chos

e not

to use them

because

the

r epor

ts would

have

b o

ls te red the

testim

ony of

M

cDonald

and Ba

ldasaro tha t

defe

ndant ' s kidnapping

of Ms

Allen

was dru

g-re la ted .

Jus t

as Bianco

t e s t i f i e

d

a t

th

e hear ing t ha t

she kne

w

Ms A

llen ' s s ta tu

s as a po te n

t ia l in

form ant

was impor

tant , y

e t

Bianco chose

to d isregard

i t

and

not

ra ise

t

as

an

argument

on

appeal , t

h i s Court canno

t

draw the

conclu

sion

t

ha t Fahe

y did

not

ra i s

e th is

conf iden t

ial in forman

t argument a t

t r i

a l

b

ecause

the

Peopl

e never

provid

ed the dro

pped informat io

n

to him.

F i

rs t ,

Fahey t e s t i f i e

d

t ha t

he

was aware

Ms A

llen was

not

an

informant

,

so

any theo

ry

th a

t someo

ne o the

r

t

han d

efendant

kidnapped

her

becau

se she

was a

ra t

, wouid h

ave been

too

s

pecula t iv

e to

a

rgue

without any

corrobo

r t ing ev

idence.

17



Second

,

in l i gh

t of

the

f ac t th a t M

s A ll

en ' s

inform

ation card had

been,

to

use

defen

dant 's words,

pub

l ic ized

more

t

han

two

years

pr io r

to

he

r

disappeara

nce, t i s ha

rd

to

imagine how

defendan

t co

uld

h

ave argued

and

admit in to

evid

ence

th a

t som

e unknown

drug

dealer had p

lanned for two

ye

ars to abduc

t

and k i l l Ms

Alle

n

i

n broad day

light w

ith

w it

nesses ar

ound.

Kri st ine D

uell t

e s t i f i e d tha t

a

f t e r she

found the

inf

ormat ion

in the

park

ing lo t , sh

e contacted

l

aw enforceme

nt.

Duell c

laims the

o

nly person she

spoke t abo

ut th is

inc ide

n t

was

her

mother an

d

t ha t

t

hey

d

ecided. the

y would

not mak

e t known

to

anyone e l

se HT p.

1878

l i nes 2

3-24). D ue

ll 's

moth

er, Ro

berta

W

ills,

t e s t i f i e d th

a t she did spe

ak

to her d

aughter b

ut

th a t

W

ills

never

s

poke

to anyone about

what her daug

hter found.

Thus,

based

upon the

eviden

ce

a t th

e hearing,

th

ere i s no

evidence

t

ha t

e i t he r

Duell

or

W ills

disclo sed

what

information

had

been

found

in

1

992

to o the r

s in the

community

.

Contrary

t F

ahey' s

tes t imony

tha t

had

he

kno

wn Ms

Al len 's

conf iden

t ial info

rmation had be

en l e f t

in the

parking

l o t

of t

he D W more

than two

year

s

p r

io r

to

h

er

disappea

rance, he

would ha

ve argued t ha t

the

re were o th

ers wit

h

a mo

tive

to harm

her,

in keeping

wi

th

the

holding in

G

amble,

s

upra , t h i s Court

holds

th a t th

is evi

dence would

be unduly

specu

la t ive , and th

a t

18



i t s

pre judic ia l e f fec t would ve outweighed

i t s

proba t ive value.

This Court f inds

tha t , as Ms

Allen

was

not

a

conf iden t i a l

informant

for the Oswego County S h e r i f f s Office ,

there

was

no Brady mater ia l

to

turn over. However,

even i f the

fac t

tha t Ms

Allen had

provided

l imi ted informa.tion to law

enforcement about

drug

ac t i v i t y in 1991, and the People t r ea ted

tha t

aspect

as

Brady mater ia l ,

tha t informat ion,

both

the

r epor t s

from Deputies

Van

Pat ten,

Montgomery

and

Anderson

and the card

found a t

the

D W together

with

Inv.

K l e i s t s

repor t , were

turned

over to defendant

on December 14,

respect ive ly .

1994

and

in May

1995,

Final ly , even

i f the Court bel ieved tha t defendant

never

received

any

informat ion about Ms

Al len s conf iden t ia l

informant s ta tus or the invest iga t ive

repor ts ,

the informat ion

about

her card being

dropped

in

the

D W

parking

l o t

in

January

of

1992 i s too remote, too specula t ive and

pre judic ia l

for

a

t r i a l

cour t to allow in to evidence.

Uocraf t s Statement: Brady

Defendant makes a t angent ia l Brady argument

tha t

the

People fa i l ed

to d isc lose

Darlene Upc raf t s

s igh t ing

of a white

rus ty van parked

in f ront of the D W the morning

Allen

was

abducted.

I t

i s c lea r from the informat ion Upcraft provided to

19



Inves t iga to r Dale Yager

on

Apri l 7,

1994,

tha t

when Upcraft

drove

to

church a t 6:35

AM

on Easte r morning, she did not ind ica te tha t

she saw

a

white rus ty van in

the

D W parking

l o t

(Exhibi t 19)

Then, when Upcraft

drove

by

the

s to re

on

her

way home

from church

around 7:31

AM Upcraf t

d i dn t remember

seeing anything to repor t

(Exhibi t 19 and

HT p.

189 l i nes 23-25).

At

tha t t ime, arguably, Ms

Allen

was st ll in the

s to re

as her l a s t t r ansac t ion was

a t

approximately 7:42 AM.

Thus,

defendant s argument

t ha t

the People fa i l ed

to

the

d isc lose

the

s igh t ing of

another

van d i f f e r e n t than defendant s on

the

morning of Ms Al len s disappearance i s

moot

because a t

the

t ime

Upcraf t t e s t i f i e d

tha t

she saw

the

white rus ty van

on

her way to

church,

Ms Allen

would

have been

ins ide

the s tore for a t l ea s t

another hour.

Further ,

as defense counsel

was

provided

with

Off icer

Yager s

r epor t (Exhibi t 19), defense could

have

independently

followed

up

with

Upcraft about

what

she repor ted

to law

enforcement

Conclusion: Brady

Defendant received the documentat ion he requested a f t e r

the

People disc losed Ms

A l len s

contact

with law enforcement as

a potent ia l confident ia l

informant before t r i a l and he

had a

20



re

asonab le

oppor tuni

ty to

use i

t as

par t of

h is defense (com

pare

Peoole

v.

San

chez,

21 NY3d

216, 225

[20

13]). Despite

defenda

nt s

arguments

pertainin

g

to

cer ta

in

documenta

tion and

no

t having

receive

d it bef

ore t r

i a l ,

th i

s Court

f in

ds

t

ha t the Peo

ple d

id

no

t

comm

it a

Brady v io

la t ion .

Arguendo

,

ev

en i f def

endant

had moved

to vac

ate his

jud

gment

of con

vict ion under th

e argumen

t th a t

these

repor ts

and

in

dex cards co

nst i tu ted n

ewly discove

red e

vidence,

defendan

t

i s

not e n t i t le

d to

r e l

i e f on t h i s

sp e

c i f ic chal l

enge . The h

earing

record de

monstra tes

th

a t t h is

mater ia

l was d isco

verable and,

more

importan

tly, tha t

defendan

t did

have i

t in

his posse

ss ion

a t

the

t ime of

t r i a

l . There

fore, the

evidenc

e

doe

s n

ot

sa t

i s fy the

requirem e

nt t ha t it

was 'd

i scovered s i

nce the

entry of a judgm

ent

b

ased upon a ve

rd ic t of g u

i l ty a f t e r

t r i a l C

PL 440.

10 [l] [g];

see

a lso

People v.

Singleton,

1 AD3d

1020, 1021,

lv .

denied

1

N

Y3d 580

) (People

v.

Backus, 129 AD

3d 1

621, 1625 [4

th Dept.

2015]

[ in t

e rna l c i t a t i

o n s

omi t ted

.

As such

, b

ased upon the

evid

ence presen te

d

a t

the

hearin

g ,

th

is Court

f ind

s

t

ha t the

Sta t

e did

not obta in

defendan

t s conv ic t

ion th

rough frau

d

a

nd m isrep

resenta t ion

s nor

d i

d

i

t f

a i l to d

isc lose c r i t i c a l

Brady

mate

rial whic

h

wou

ld

w arrant th is Co

urt

to vacate def

endan t s judg

ment

of conv

ict ion

21



pursuant

to

PL

§§4

40.10(1)

(b) and

(h) . Accordin

gly, defe

ndant s

motion i s

DENIED

N WLY

DIS OVER

ED

EVIDE

N E

D

efendant pre

sented

evidence

whic

h

h

e

arg

ued

suppo

rted

h i s i n i

t i a l

asse r t ion

t ha t

Steen,

B

reckenridg

e and

Bohrer

kidn

apped Ms

Allen.

Howe

ver, throu

ghout the hearing

, there

has

been no

eviden

ce l ink in

g

the

t

h ree of them t

ogethe r pr io r

t

o

Ms

A llen

s disappea

rance

or on th

e

mor

ning

the reo f .

T

hen, defend

ant s t

heory turn

ed to Steen kid

napping

Ms

Allen ,

with an

other

u n ident i f i

ed

p

erson in S te

en s v

an, bas

ed

upon

an over twenty

yea

r old a llege

d i de n t i f i

c a t i on

of Steen

by

W

illiam

Pierce . T

he C

ourt w ill

a

ddress

Pie r

ce s

testim ony

fur th

e r in t h i s

dec is ion .

Final ly

, defen

dant

foc

used

the

m a

jori ty

of h i

s argumen

t

on

plac ing

Bohrer as

the suspec t

most

respons ib le

for

Ms

A llen s

abdu

ction ba

sed

u

pon

his absurd

be

havior

a f t

e r her

disapp e

arance,

unsuppor te

d emotiona

l at tachm

ent

to

the

kidna

pping

i nve st ig

a t ion

and

cri

m inal

pas t .

Pursuant to PL

440.10(1)

(g), a cour t

may vac

ate a

judgm

ent of convict i

on on

the ground

th a t [n

] ew

evidence

has

been

discovered

s in

ce

the ent ry

of a judg

ment based

upon a

verd ict

of g u i l ty a f

te r t r i a

l , wh

ich could n

ot have been

produc

ed

22



by the defendant a t the

t r i a l even with due di l igence

on his

par t

and which

i s

of

such

charac er

as

to

crea te

a probab i l i ty

tha t

had such evidence

been

received

a t the t r i a l

the verdic t would

have been more favorable to the defendant; provided t ha t

a

motion

based upon

such

ground must be made

with

due di l igence a f t e r the

discovery of

such

al leged

new

evidence . '

It

i s

well

se t t l ed

tha t

on a

motion

to

vacate

a judgment of

convict ion

based

on

newly

discovered

evidence, the movant must

es tab l i sh ,

i n t e r

a l ia ,

tha t the re i s newly discovered evidence:

(1)

which wi l l probably

change the

resu l t

i f

a new

t r i a l i s granted;

2) which

was

discovered s ince the t r i a l ;

3)

which

could not

have

been

discovered pr ior

to

t r i a l ;

4)

which i s

mater ia l ; 5)

which i s

not cumulat ive;

and

[ 6)

which does

not merely impeach

or

cont radic t the record evidence ' (People v. Smith, 108

AD3d

1075,

1076

[2013],

lv .

denied

21 NY3d

1077 [2013]

[ in t e rna l

quota t ion

marks

omit ted] ; see People v. Salemi,

309

Y

208, 215-216 [1955],

cer t . denied 350 US 950

[1956]).

Defendant has the burden of

es tab l i sh ing 'by

a

preponderance of the

evidence

every fac t

e s s e n t i a l to suppor t the motion' CPL

§440.30[6])

(Backus,

supra

a t 1623).

Defendant ' s theory

i s

based upon a

witness

who

defendant did

not put

on the

witness

s tand a t

t r i a l .

While both

23



pa r t i e s consented to Tonya Pr ie s t ' s s tatement being allowed in to

evidence ,

the Court considered

P r i e s t ' s

s tatement

and addressed

i t s

meri t

in the Cour t ' s Apri l

6,

2015

decis ion.

Again, P r i e s t ' s

c red i b i l i t y i s cal led in to ques t ion

because

she

says Steen

to ld

her in

2006 tha t he,

Breckenridge and

Bohrer

abducted Heidi

Allen.

This information

i s ques t ionable on

many

leve ls .

Both Steen and

Bohrer

t e s t i f i e d tha t

they

never

knew

one another , and

both

Bohrer

and Breckenridge

s ta ted tha t

they only met each other once.

Despite

the fac t Pr ie s t ' s

s tatement was considered

hearsay

by t h i s Court

in

i t s

previous

dec is ion ,

in

a l l fa i rness

to defendant , the

Court considered th i s s tatement

with respect to

the th i rd-pa r ty cu lpabi l i ty evidence,

yet

f inds tha t t st ll

lacks

any

meri t .

The

crux

of

Pr ie s t ' s

s tatement

i s

tha t

Steen

to ld

her

in 2006 tha t he, Breckenridge and

Bohrer

took turns bea t ing

Ms

Allen

to death,

cut up

her

body and then hid her under

f loorboards

in a

cabin in

the woods off

Rice

Road in

Mexico

(Exhibi t 35) .

Pr ies t

claimed

Steen

sa id they burned

Ms

Al len ' s

clo thes

in

a wood

s tove in the same cabin. Steen described the

cabin as being deep in the woods, a t the edge of

a

clear ing , and

a

person would have to

cross

over

a

se t of

ra i l road

t racks to get

4



t o sa id

cab in .

With

respec t to the t h i rd -pa r ty

c u l p a b i l i t y evidence,

t h i s Court , upon consent from both p a r t i e s , al lowed hearsay

tes t imony,

which w i l l be

discussed

l a t e r

in

t h i s

dec is ion ,

from

seve ra l witnesses

about the

pos s ib i l i t y t ha t James Steen , Roger

Breckenr idge

and Michael Bohrer kidnapped and

k i l l e d Heidi

Allen .

In

order to

address

the

ad mis s ib i l i t y

of

these

s ta tements , the Court has to review them as to

whether

the

ind i victual

s ta tements are

admiss ib le as hearsay excep t ions and

then under the more generous t h i rd -pa r ty cu lpab i l i ty s tandard .

Regardless of the fac t

t h a t

each of the a l l eged

suspec t s gave

tes t imony

as

defendan t s

witnesses and were

cross

examined,

other

r e l a t i v e s ,

f r iends

and acquain tances t e s t i f i e d to

d i f f e r e n t

purported admissions those three men

had made

over the

decades wi th

respec t to

Ms

A l len s

disappearance .

However,

desp i t e the ple thora of in fo rmat ion

provided by

a mul t i tude o f

sources

who claimed to

be

close to these three

suspec t s , none

of

t he i r

tes t imony can be . co r robora ted

or deemed

cred ib le .

'Whi le evidence tending

to

show t ha t

another

pa r ty

might have committed

the cr ime would

be

admiss ib le , before

such

tes t imony can be rece ived

the re must be

such proof

of connect ion '

wi th it such a t r a i n of

f ac t s

or

circumstances as t end c l e a r l y

25



to

p o i n t out someone bes ides the pr i sone r as the

g u i l t y

p a r t y '

(see Green f i e ld v. People , 85 Y 75, 89 [1881]) . Remote a c t s ,

d isconnec ted and ou t s ide of the cr ime

i t s e l f ,

cannot be

s e p a r a t e l y proved ' to show

t h a t someone

o the r

t han

t h e

defendan t

commit ted

t he cr ime

(see

i d . )

(People

v; Schulz ,

4 NY3d

521,

529

[2005]) .

'Be fo re pe rm i t t ing ev idence

t h a t

ano ther i n d i v i d u a l

commit ted

t he cr ime

fo r

which

a defendant

i s on

trial

t he cour t

i s

r equ i r ed to

de te rmine

if

the ev idence i s r e l e v a n t

and

proba t ive o f p f ac t a t i s sue in the case , and f u r t h e r

t h a t

it i s

not based upon susp ic ion o r

su rmise ' (People

v.

Oxley,

64 AD3d

1078, 1081 [2009]; see

People

v. Primo, 96 NY2d 351, 356-357

[2001]) .

Then,

the cour t must balance the proba t ive

value

o f the

evidence a g a i n s t the p r e j u d i c i a l e f f e c t

to t he

People

and may,

in

an

e x e r c i s e

o f

its

d isc re t ion ,

exclude

r e l evan t

evidence

t h a t

w i l l

cause

undue pre jud ice , delay

the

trial o r confuse o r

mis lead

the

ju ry ' (Oxley, supra a t

1081;

see Primo, supra a t

356-357) Although

a

trial

cour t has ' b road d i sc r e t i o n

to keep

the proceed ings with in manageable l i m i t s and

to

cu r ta i l ·

exp lo ra t ion o f c o l l a t e r a l m at te r s ' (People v. Hudy, 7 3 NY2d

40,

56 [1988]; see

Holmes v. South

Caro l ina , 547

US 319

[2006]) ,

' t h e

trial

c o u r t ' s d i sc r e t i o n in

t h i s area i s

c i rcumscr ibed by

the

26



defendant s

cons t i tu t iona l

r igh t s to present

a

defense and

conf ront

his

accusers

(Hudy,

supra a t 57;

see

Chambers v.

Miss iss ippi , 410 US

284 [1973];

People v. Robinson, 89

NY2d 648

[1997]; People v.

James,

242 AD2d 8 ~ [1997] ) (People v.

Thompson, 111 AD3d 56, 64 [ nd

Dept.

2013]

[ in t e rna l

c i t a t i ons

omit ted] ) .

Defendant

presen ted severa l witnesses

who

t e s t i f i e d to

s ta tements

made

to them a f t e r

Ms

Al len s disappearance

these

past twenty years . However, se t t ing as ide the hearsay s tatements

for the moment

and

address ing

them

under the t h i rd -pa r ty

c u lpa b i l i t y standard,

none of

these

s tatements

were

corrobora ted

by

independent evidence.

In examining

with

spec i f i c i ty

Steen s

a l leged

s tatements to

Pr ies t ,

Chief Inves t iga to r

Haumann, from

the

Federa l

Publ ic

Defender ' s

Office ,

t e s t i f i ed

a t

length

the

extent

of the

two

cabins

he

located and searched where

Pr ies t

ind ica ted

contained

Ms

Al len s remains.

Haumann

found

two

cabins: one in

June 2014

and

one in Ju ly

2014.

The

f i r s t

cabin

was

off

the

western end of Rice

Road · toward Route 11.

The cabin appeared

uninhabi table ,

with

some metal and wood on the

s ides

of the

s t ruc ture and some

type

of f loor ing .

Haumann

t e s t i f i e d tha t he

to re

up

the

remaining f loor boards with

a pickax

which

yie lded

27



negat ive r e su l t s .

However, Haumann

spoke with

a

neighbor,

Mr.

Donegan,

who

confirmed tha t the

cabin

had been demolished pr ior

to

Ms.

Al len s disappearance.

The

second

cabin

was

loca ted a t

the

eastern end of Rice

Road. This was the same

cabin t ha t

Je_remy and

Nicole

Powers

went

to search

for Ms. Al len s remains.

In

con t ras t

to P r i e s t s

asser t ions , the cabin was

in

th ick brush in

the woods,

not near an open

f i e ld .

Further ,

Haumann

t e s t i f i e d tha t

the

cabin was not near any ra i l road

t racks , t did not contain

a wood

stove and t did

not

f i t the

descr ip t ion of the

cabin provided by

Pr ies t .

Dog

handler

Kathryn Bamford

and

her

dog,

Hawk

were

brought in to search

the

s i t e

of th i s

second

cabin.

Bamford

s ta ted

tha t

her dog indicated

a

spot where

human remains

could

have

been. Regardless

of the

accuracy of

the dog s

ind ica t ion

for human

remains

a t the

second

cabin, Haumann s test imony was

tha t t h i s cabin

did

not f i t

the

descr ip t ion provided by Pr ies t .

Therefore , t h i s

Court

i s led to be l ieve t ha t

whatever

human

odor

the dog

obtained,

t did

not

belong

to

Ms.

Al len s remains.

Joseph Lis i ,

a

forens ic i nves t iga to r employed by

Onondaga County Medical Examiner s

off i ce , pa r t i c ipa t e d in

excavat ion a t t h i s

second

cabin on

June

29, 2014. e s ta ted tha t

28



he

had

par t i c ipa ted

in two other

inves t iga t ions where

the

cadaver

dogs had indicated

the

presence

of

h u m ~

remains but t ha t

none

were

found.

In

t h i s

case,

the

excavators dug down about

twenty

nine inches

under the

foo tp r in t

of the

cabin and reached

a

hard

packed

l eve l

or layer of

c lay tha t

was

undis turbed

across the

e n t i r e area .

Inves t iga to r Lis i a lso descr ibed

the condi t ion

of

the

cabin as

being in

a

heavi ly wooded

area

not near any r a i l ro a d

t r acks ,

cont ra ry

to

P r i e s t s asse r t ions .

Deputy

Chief Medical

Examiner

Dr. Laura Knight and

another doctor

from

the Onondaga

County

Medical

Exam iner s Off ice

came to

the

second

cabin

to perform

a

forens ic

dig

of

the

area .

The

foo tp r in t

of the cabin was

div ided

in to four quadrants

in

which

the

d i r t was s i f t e d , yet no

human

bones

were

found. Dr.

Knight

also

t e s t i f i e d

t ha t she has

been

assigned to cases in

which

the

cadaver

dogs

have

indica ted the

presence

of

human

remains, yet no such remains

were

recovered.

Defendant s t h i rd -pa r ty cu lpab i l i ty evidence presen ted

a t the hear ing i s in s t a rk con t ras t

to

the under lying fac t s in

People

v.

Negron, 26

NY d

262

[2015].

In

Negron,

supra ,

defendant

f i l ed a PL §440

.10 motion under

the theory tha t the

People had

v io la ted

t he i r Brady obl igat ions

by

f a i l i ng to

d i sc lose

in format ion

about

another suspec t s

a r re s t

and

29



possess ion o f .45 ca l i b e r ammunition

c lose in

t ime

t o de fendan t s

a r r e s t

fo r

the

i n s t an t cr ime.

Negron

contended t h a t the People

a l so misled

the

court about

d e fen d an t s t h i r d - p a r ty c u l p a b i l i t y

defense .

After an ea r ly morning road rage i nc iden t ,

Neiron was

i d e n t i f i e d

as

the man

who shot another

ind iv idua l

in the l eg . In

add i t ion to

the

vict im, t he re

were four other witnesses

to

the

even t .

Three of the wi tness , who i n i t i a l l y

f l ed a f t e r

the

i nc iden t but re tu rned a f t e r pol ice a r r ived ,

s t a t ed

t ha t Negron

en te red a

s p ec i f i c

apartment bui ld ing on the same s t r e e t where

the

shoot ing

occurred .

One witness

descr ibed

Negron as

having

f a c i a l

h a i r

and s t a t ed t ha t

a 1999

Chevrole t Monte Carlo was

d r iv en

by the suspec t .

The

pol i ce loca ted the

Monte

Carlo

and

a f t e r

r ea l i z in g t was st ll

warm to

the

touch surmised

t h a t

the

vehic le

belonged

to

Negron

who

res ided

in

the

same

apar tment

b u i l d i n g

to

which the

suspec t

had f l ed .

When Negron spoke with

the

pol i ce t ha t same

day

he

s t a t ed

he

was

the so le opera to r

of

t

and

re tu rned

home

about two hours p r i o r to the shoo t ing . n

ensuing search o f hi s veh ic le y ie lded no evidence of the cr ime.

With respec t to i d e n t i f i c a t i o n evidence

only the

vic t im could i den t i fy Negron as

the

perpe t ra to r .

wo

of the

wi tnesses i d e n t i f i e d o t h e r

i nd iv idua l s i n

a

pol i ce

arranged

30



l ineu

p and one

w itn

esses

w

ho

viewed

N

egron

a t a show

up, s t a t

e d

Ne

gron w

as

not

the

m

an he

sa w

sh

oot th e

vic t im.

At

t r

i a l

d

efense

counse l sought

to in t rod

u ce evidenc

e

t h a t

a

th i rd -p

a r ty ,

Fernando Caban, ha

d

commi

tted

th e

sh oo ti

n g

as

Caban c l o s

e l y m

atched th

e

d e s c r

ip t ion o

f Negron,

l iv ed in

th e

same apart

ment b u i ld i

n g and

was ar res te

d the fol low

ing

day fo r

we

apons posses

s ion .

The

P

eople ob jec ted b

y a rgu i

ng th e r e

was no

c lo

se res

em blance

b

etween the

two

o

the r t han

t h e i r e t

h n i c i ty

and

fu r

the r argued

th

a t t was i r re

l e v a n t t

h a t Caban

had

been

a r r e s t ed

th

e

next

day

for weapon

s p o ss

ess ion

a

s the

weapon

ha

d

no

t

been used in

th e sh

oo t ing , despi te

t

h e

fa

c t t had

b

een

fo

und

on

th

e roo f

o f

a

b ui ld

ing

n

ext to

th e

apar tmen t

complex.

The

t r i a

l cour t

r e jec t

ed de fen d a

n t s argumen

t.

The Cour

t o f Appeals

rev e

rsed th e o r

de r

o f the

Ap p e l l a te D ivis ion, g ran ted

d e fenda n t s PL

§440

.10 m otion

and

vaca ted de fen

dan t s

judgm

ent o f conv ic

t ion .

T

he

Court

h eld :

Caba

n

did bea r a

g en e ra

l resemb l

ance to th e d e

sc r ip t ion

o f t

h e

p e r p e t ra

to r ,

l iv

e d in

the

same

b

ui ld in g and

w

as ar res te

d

in c lose

pr

ox imity

to the t ime

of t

h e

offen

se f

o r

p o

ssess ing

wea

pons and

I t should

be noted th at the t r i

a l

court w

s

fo

und

to

h ve applie

d the incorrec

t

st n

d rd in asse s s

in g th

e th ird par t

y c u l p a b

il i ty ev idence which

w

s ddressed

y the

Court o f Ap

peals

The Cour

t a l so

h

eld defenda

n t f a i l e d

t

o

rece

ive

me ningful

r e p r e sen

tat ion .

31



ammun

ition (inclu di

ng the t

ype of

ammu

nition used

in the

shooti

ng) under

circums

tances evincing

a consciousn

ess of g u i l

t .

T

his e

vidence

can

not

be c lass i f

ied

as

' [ r ]emote

' or

'd isco

nnected '

fro

m

the cr

ime

a t is 'sue

(compare Peopl

e v. Schulz,

4

NY3d

521, 529 [2005])

(Negron, supra a t 26

8-269).

v io la t ion

:

F

ur ther the C

ourt a

ddressed the

People 's

al lege

d

Bra

dy

d

efendant

argues t ha t

the Peo

ple fa i led

to

tu rn

ove

r Br

ady evidence

tha t

w

ould

ha

ve

been

supp

ort ive of his

th

ird -pa r ty

c u lpa b

i l i ty

defense

in pa r t ic

u la r , informa

tion

concerning

the

circumstan

ces of

C

aban's a r re

s t

and h is

p

ossess ion

o

f

.45

ca l ibe

r ammun

ition.

The

t r i a l

ass i s

tan t

(who was als

o prosecut

ing Caban

an

d

.w

as qu i te

f a mi

l iar with

the c

ircumsta n

ces of

h is

a

r res t )

in

addres sing

defenda

nt 's th i rd-p

a r ty

c u lpa bi l i t

y

a

p p lica t ion

character i

zed

Ca

ban's a

r re s t

as

i

r re le va n t

and

his conne

ction with the

shootin

g

as

tenuous a t

b e s t .

The

prosecu to

r a ls

o

at

tempted t

o

p

or t ray defe

ndant 's

app l i

c a t ion as

a

m

ere attem

pt

to pin th

e

c

rime

on another

ind iv idua l who l ived in

the

same

building

and

happened

to

be

of the sam

e

e t

hn ic i ty ,

a l l w

hile

aw

are t ha t

defe

nse counsel

was not fu l

ly fami l iar

with

the relev

ant

i

nformat ion

surro

unding Caban's

a r r

e s t .

U

nder

Brad

y, th

e

p rosecu t

ion 's fa i lu re

to

d is

c lose to the def

ense evidence

in i t s

possess

ion

both f

avorab le

and m

aterial

to the

defense

e n

t i t l e s the defenda

nt

to a new

t r

i a l (Pe

ople

v.

V

ilard i,

76

NY d

67

,

73

[1

990]) .

[W

]

he

re a

defendant

makes

a

spec i f i c

request

for a

document,

the m a

te r ia l i ty

elemen

t i s es tab l

i shed

provid

ed

the re e x is

ts

a

reasonab

le p o s s i b

i l i ty

tha t t

would have cha

nged th

e

re s

u l t

of the

proceedi

ngs

(

People

v. G arre t

t , 23 NY3d

878,

891-892 [2

014]) .

32



i n s t an t

Here, where the evidence aga ins t

defendant

was fa r

from overwhelming, the re

i s

a reasonable

p o s s i b i l i t y t ha t

the

verd ic t

would

have

been

d i f f e r e n t

if

the informat ion about Caban

had been

di sc losed .

There

was no

phys ica l

evidence

ty ing

defendant

to

the shoot ing and

only

one out

o f

the

f ive

eyewitnesses i d e n t i f i e d defendant as

the

perpe t ra to r .

The

evidence of. Caban'

s 4 5

c a l i b e r

ammunition

was p la in ly favorable to the defense.

In other words, t h i s

informat ion would have added

a

littl

more

doubt to

the

j u r y ' s view

of the

evidence and it i s reasonably poss ib l e t ha t

a

littl more

doubt

would have been enough (People

v. Hunter , 11

NY3d

1,

6

[2008] ) (Negron, supra

a t

269-270

[ in t e rna l

c i t a t i ons

omit ted]) .

With

respect ' to the f ac t s

before

the Cour t in the

case the

evidence presen ted

i s too remote and

disconnected to show t h a t

someone other

than defendant

kidnapped

Heidi

Allen .

None of

the

witnesses

can

c red ib ly place

Steen,

Breckenr idge or Bohrer a t the D W the morning Ms. Allen

disappeared. None of the

witnesses t e s t i f i e d

to

the f ac t t h a t

Steen, Breckenr idge or Bohrer had

a

van

s imi l a r

to the one seen

t h a t morning a t the s to re .

None of the witnesses can t i e Steen,

Breckenr idge or Bohrer as being

toge ther

the

morning

before o r

during

the

morning

Ms

Allen was

kidnapped.

None 'of the

wi tnesses

can prove t ha t Steen,

Breckenridge

or Bohrer were more

than

s o c i a l

acquaintances ,

and

even

Steen

and

Bohrer

both

admit

t ha t

they

did not

meet

one another .

Steen t e s t i f i e d t ha t he

knew

Breckenridge from

school ,

33



used

drugs

with

him, and

cons ide red him

a

soc ia l

acquain tance .

Steen

sa id

he never met Bohrer, but knew t h a t

hi s

wife had

purchased a computer from

Bohrer.

Breckenr idge

a l so

s t a t e d

t ha t

he knew Steen from school

and

did drugs with him, and he only met

Bohrer

once and did not hang

out

with him. Bohrer

s t a t ed

t h a t he

did

not know

Steen and t h a t

he

had met Breckenr idge once,

th rough

·

hi s f r i end

om Mart in .

Moreover, d es p i t e whatever s ta tements

can

be

a t t r i b u t e d

to

Steen, Breckenr idge o r

Bohrer

with respec t

to

what happened to

Ms.

Al len

o r where

her

body i s loca ted ,

a l l

t h ree men were

ques t ioned by

defendant a t

t h i s hear ing and denied any

involvement

in

abduct ing

Ms. Al len from the

s to r e .

The

Court r ea l i z e s t h a t t h e re was

littl chance

o f

Steen,

Breckenr idge or

Bohrer

admi t t ing to kidnapping Ms.

Allen

o r

being

invo lved

in

dispos ing o f

her

a f t e r

the

f ac t ,

if

they

had,

in f ac t ,

been

involved in those

ac t s .

Thus, the

Court

co n s id e r s

the

o t h e r

wi tnesses

tes t imony

pe r t a in ing to

S t e e n s ,

Breck en r id g e s o r

Bohrer s a l l eg ed

s ta tements ,

desp i t e the fac t

the t e s t imony

i s hearsay,

in suppor t o f

d e fen d an t s t h i rd -p a r t y

c u l p a b i l i t y defense .

However, with respec t to severa l witnesses

t e s t i f y i n g

to

s t a t emen t s

made

by

Steen , Breckenr idge o r

Bohrer ,

none of

34



those

s ta tements

can be

corroborated .

The witnesses t e s t i f i e d

t ha t Ms

Allen

was e i the r chopped up , burned

in

a s tove

or f i r e

p i t , bur ied undernea th f loor

boards in

a camp,

or

t h a t her body

was

in

a van which was salvaged

in

Canada.

There

i s no proof as

to how Steen , Breckenridge or Bohrer were d i r e c t l y r e l a t e d to Ms.

A l len s

kidnapping other

than hearsay

evidence

of

vague

s ta tements as to

why Ms

Allen

was

k i l l ed

and

t h a t

she

was dead.

Even

those s ta tements

are

not cons i s ten t .

Defendant

places a l o t

of

weight on

the

tes t imony

of

Je n n i f e r

Wescott

and

her

recorded phone c a l l with P r i e s t .

Wescott

responded to P r i e s t s s ta tement t h a t Steen , Breckenr idge

and Bohrer showed up

a t

t he i r house on Rice Road with Ms

Allen

in the

van:

Pr ies t :

But

he

[Steen)

j u s t

to ld

me t ha t

him,

[Steen) , .Michael

Bohrer

and uh Roger

had

t aken uh

Mike 's

van

to

the

s to re

and

t h a t

they

grabbed

her

from the s to re

and

they brought

her

to

your house

and um

he sa id t h a t

you

i ~ f l i p

out when

you

guys

got t he re and uh you know I

s tuck

up fo r you

and

I

d o n t

blame you

fo r

f l i pp ing out

uh and

bas ica l ly

t h a t s

what

he had

sa id

had happened.

Wescott :

m

uh.

Pr ies t : Right . Did you even know t h a t

i s

was

Heidi

t h a t they

brought t he re

and t h a t t h i s i s

what

they

were

going

to

do?

Wescott : Nah, uh

Pr ies t : Had no

clue,

they

j u s t

showed up with her?

35



Wesc

ott: Ye

ah.

P

r ies t : What a

bad

p

os i t ion fo r

you

scar

ed the sh i t

out of you

?

probably

Wescott :

Well

it s

not

even

b ri

n g

h

er in th

e house

,

they

v

an. (De

fense

Sxhi

bi t

35)

they

d i d n t e

ven

made her

sit in the

W

hile

Westcott

l a

t e r t

e s t i f i e d a t the

hear ing th

a t she

l i ed to

Pr i e s t durin

g

th

e

phone ca l l ,

the Court

i s

still l e f t to

res

olve the c r e d

ib i l i t y of

Wescot t '

s

resp

onse

th a t the

th ree

men

showe

d up with

Ms A l

len

in

a

van

a t th

e house.

I t has b

een

es tab

li s h ed th roug

h Steen

and B ohrer ' s t

e st imony

th

a t

in

199 4

Ste

en a

nd Bohr

er

d

id

no

t know

one

an

o ther ,

t hus

, how coul

d they

have

been to ge the r

in

1994 with Ms

Allen?

F ur the

r , ev

en i f the

Court w

ere to c red i t

W escott

'

s

s ta temen

t about Ms

Allen being

in t

he

van

a t the

house,

it does

not

prove t ha t

M

s Allen

was

dead a t the

t ime and

t h a t the

th ree

men t he r e a

f te r

k i l l e d her a t

a

cabin

and e i the r

bur i

ed her u

nder

f lo

o r boards or

drov

e

h

er in a

van to

Canada a f t e r

she

was

ki l l ed .

At

bes t , ev

en if her

s tatem

ent i s

the

t r u th ,

defendant

h

as p rese

n ted no cr

ed ib le ev

idence

o

ther

than

t h i s

s ta tement

as

to

what

h

appened

with

Ms

A llen

and how the

th ree

sp

e c if ica l ly

were

invo lved .

Wesc

ott t e s t i f

i e d t

h a t

in

A pril of

1994, when she

was

seventee

n ,

she

l iv e

d on Coun

ty R

oute

38,

H

ast ings w ith her

36



parents

HT p.

1399

l i n e s 2-4) . Spec i f i ca l ly , with

respec t

to

re s id ing on Rice Road,

her tes t imony

on cross examinat ion i s as

fo l lows:

Q.

Now Ms. Peebles

asked

you a ques t ion about

Rice Road.

Did

your mom

or

your dad ever l i ve on

Rice

Road in

the

Town

of

Mexico?

A. No.

Q.

Have any

of

your r e l a t i v e s l ived

on

Rice Road

in the Town of Mexico?

A. No.

Q. Have you ever s tayed

the

n igh t

or

spent the

n igh t · a t a res idence on Rice Road in the Town of

Mexico?

A. No. HT

p.

1399 l i nes

5-14)

Wescott

a l so

t e s t i f i e d

t h a t

she went a long wi th the

conversa t ion

P r i e s t wanted

to

have

about the

kidnapping

to

give

Pr ies t a t t en t ion

and

t h a t

she even

l i e d

to

P r i e s t

about being

subpoenaed

to

t e s t i f y a t

the Thibodeaus

t r i a l :

Q.

Were you ac tu a l l y subpoenaed to

go

in to cour t

fo r e i the r

of

the Thibodeaus?

A. Th a t s a

l i e .

I wasn t .

Q.

Why

did you say t h a t you were subpoenaed to go

to

t e s t i f y

fo r the

Thibodeaus?

A. I t o ld Tonya

a ·

1ot

of

l i e s as I sa id .

HT

p.

1412 l i nes 11-16)

Moreover,

Darcy

Purdy

s

tes t imony con t rad ic t s P r i e s t s

37



cla im

tha t Wescott

and Breckenridge l ived

a t the home on

Rice

Road a t

the

t ime Ms. Allen was

kidnapped.

Exhibi t

84,

which

i s

the

l ease

Darcy

Purdy

executed

on December 9,

1992, was

in t roduced in to evidence. Based upon tha t

lease , Purdy

t e s t i f i e d

tha t she cont ipuously

l ived a t t ha t proper ty

on

Rice

Road

from

January

of 1993

through

the

end

of 1995 HT p.

2141

l ines 2-4) .

Purdy

t e s t i f i e d

t ha t when she

was

marr ied

in September

of 1994, she

was

st ll res id ing a t tha t loca t ion and

had a

r ehear sa l barbeque the re .

The copy of the r e g i s t ry

book from

what was St. Michael s Parish re f l ec ted Purdy s Rice Road address

when

she was

marr ied (Exhibi t

CCCC .

Further ,

mai l ,

s pe c i f i c a l l y

a

1995

ca ta log

and

a 1995

vacat ion

planner , which

Purdy

cla ims

she rece ived a t

the Rice Road

address , were

ente red in to

evidence

(Exhibi ts EEEE

and

FFFF, respect ive ly) . Fina l ly , Purdy t e s t i f i e d

to

a

l e t t e r

t ha t

she

mailed

to

her

mother

from

her

Rice

Road

address which

bears

a pos t mark of May

5,

1994 (Exhibi t GGGG .

Thus, Purdy s tes t imony

con t rad ic t s P r i e s t s

cla im tha t

Breckenridge and Wescott l ived

on

Rice Road in Apri l o f

1994

and

t ca l l s in to quest ion Wescott s sta tement to

Pr ies t tha t

Ms.

Allen was

brought

to her res idence in a

van

in 1994.

Defendant ca l l ed Deb Vecchio

and

Brian Mensch to prove

tha t around

Apri l of 1994 Wescott and Breckenridge were e i the r

38



l iv ing

a t

the t r a i l e r on

Rice Road or

vis i t ed

Wescott

s mother

there . However, Vecchio

repeatedly

guessed a t the t ime frames in

which Purdy and Wescott l ived a t the

residence

on

Rice

Road and

provided no documentat ion to suppor t her tes t imony. Mensch

s t a t e d t ha t he l ived

in

the

garage behind

the t r a i l e r for

about

a

month and

tha t ,

to h is knowledge, no one

was l iv ing in the

t r a i l e r

in

e i t he r 1993

or

1994

when

he bel ieved he l ived there .

Mensch also

previous ly to ld

law enforcement he

l ived

in

the

garage

in

e i ther

1994 or 1995.

Then, P r i e s t s

s tatement about the camp s loca t ion

vac i l l a ted :

the camp was in an open f i e ld ,

the

camp

was

in

the

middle of

the

woods,

the

camp was near

ra i l road

t racks .

When

searchers , those both

lay

and profess ional ,

searched

the

two

camps for human remains, no

human

bones or remains were found.

There

was

tes t imony

per ta in ing to

cadaver

dogs

having

a

pos i t ive

h i t

on a

locat ion ,

only

to

f ind

t ha t no

human remains

were

recovered.

The

Court i s

hard pressed to see

how

any of

the

claimed

newly

discovered

evidence presented a t the hearing,

i f

allowed a t

t r i a l ,

would

l ike ly resu l t

in

a

di f fe ren t outcome.

While these

th ree

men

were in Oswego County in 1994, Steen and

Bohrer

had

never met,

and other than occasional

drug

use,

Steen

and

9



Breckenr idge were not f r i ends .

Without

more

s pe c i f i c i t y , t he re

was

no cred ib le , t rus tworthy,

o r

r e l i a b l e

evidence

presen ted a t

the

hear ing by defendant which l i nks any

of these three men

to

t h i s

crime.

These

t h ree

men engaged

in

con jure and

specula t ion

which has r e s u l t ed

in

them

being suspects in

the i n s t an t

hear ing.

Yet desp i t e

a l l the s ta tements

a t t r i b u t e d

to

these t h ree men

over

the course of the hear ing ,

t he re

has been no cred ib le

or

cor robora t ive ·

evidence

suppor t ing the re i s any t r u t h to any of

t he i r

s ta tements .

Even S t e e n s s ta tement t h a t he was t o ld tha t

he brought

the

van which con ta ined

Ms

A l len s

body

to

Canada

to be scrapped

i s uncorrobora ted

by Murtaugh who

t e s t i f i e d t h a t her

body

was

not

in

the van

hauled by Steen.

I f . t h e

Court were to

surmise

S teen s

s ta tement

as be ing

t r u th fu l ,

however

the re

i s

no

i n t en t i o n a l ac t

Steen

committed t h a t i s

in

v io l a t i o n

of the

law.

Had he in

f ac t ,

driven the van and disposed of her

body

which

was

con ta ined

within

the van

Steen

l ea rned of t h a t f ac t a f t e r t had been

sa lvaged .

There was no

c red ib le

proof a t the hear ing t ha t

he

i n t en t iona l ly drove the van which a rguably con ta ined

Ms.

A l len s

body to

Canada

to

be des t royed .

Id e n t i f i c a t i o n by

William

Pierce

Defendant

accords a

grea t deal

of

weight on Will iam

40



Pie rce ' s twenty

year

old i de n t i f i c a t i on of James Steen as

the

man

he saw

the

morning outs ide of the D W arguing with Ms. Allen .

However,

a f t e r a thorough and thoughtful

review

of Pie rce ' s

test imony, the re are severa l

s igni f icant

de t a i l s which should be

addressed tha t

underscore the

unre l i ab i l i t y

of his

i de n t i f i c a t i on

of Steen some

twenty

years from the ac tua l

event .

Fi r s t , Pierce s t a t e s

tha t ,

while

he

was stopped in h is

vehic le a t the

i n t e rsec t ion of 104

and 1048

he

saw a domest ic

dispute

· in

the parking l o t

of the

D W the

morning

Ms. Allen

was

abducted.

Pierce s t a t ed tha t , while looking across

the

s t r ee t

from his vehic le , he saw a man s i t t i n g in the dr i ve r ' s

sea t of

a

white

rus ty

van

arguing

with a woman who was

s tanding

outs ide

of

the

van. · After

the

male

dr iver

got out

of

the van, the

dr iver

came around to the

f ront

of the

van and come up

behind the g i r l ,

or

the

woman

and

he h i t

her behind

the

r igh t

ear

on

the

base

of

her

neck,

her

base

of her

skul l ,

with his

f i s t , and she folded

his

jus t l ike a

rag do l l

and

Pierce

saw t h i s man and a

passenger

open

the

passenger

s ide door

before P ie rce

cont inued

in to t r a f f i c

HT

p. 974 l ines

17-20).

Pierce

s ta ted t ha t in his own mind tha t [he] had seen

a domestic dispute , and you don ' t get - - a t

tha t t ime

you

d i dn ' t

ge t

between

a domestic

- - in

two combatants HT p.

979

l ines

19-

41



21)

What

Pierce had described can hardly be considered

a

domestic dispute but regardless

he chose

to

dr ive away

and

never

repor t what he witnessed tha t morning to law

enforcement,

l e t alone

ca l l

author i t i e s

for

the sake of the

woman who

he j u s t

saw

assaul ted .

Second,

Pierce t e s t i f i e d tha t

there

was

th ree to

s ix

inches of

s lush

on

the

road t ha t

morning

HT p.

979

l i ne 23), yet

the p ic tu res from the D W

only

show

a

pa r t i a l ly wet road,

not one

tha t

was covered

in inches of s lush

Exhibi ts

UU and ZZ). Pierce

also

s ta ted tha t he

had his

sunglasses on

because

t was sunny,

yet the p ic tu res do

not

r e f l ec t t ha t morning being

sunny.

Third, Pierce

bel ieved

law enforcement cap tured the

suspect ,

tha t

being

defendant , when

he saw

a

p ic tu re of defendant

and drew

a

beard on

him

and thought

t

was the

man he

saw

the

morning

a t

the

D W

HT

p. 1008).

Then,

in

June

of

2014,

so le ly

out of

good

wi l l in wanting

to

reassure the Sher i f f

tha t

he did,

indeed, a r re s t the

cor rec t

suspect ,

Pierce went

to

t a l k

to

the

Sher i f f .

On

July 25,

2014, Pierce spoke

and met

with

Inv.

Pie t roski

and

to ld

the i nves t iga to r tha t defendant was

the

same

man he

saw

on Easter

morning a t

the

D W twenty

years

ago.

However,

when

Pierce

met with Inv.

Pie t roski on October 28,

2014,

42



Pierce

was

not

able

to

ident i fy

e i the r defendant or Steen in

the

photo ar rays (Exhibi t

EEE

Exhibi t DDD, respect ively)

.

.

Fourth,

Pierce t e s t i f i e d tha t he changed

his mind about

defendant being

the man

he

observed

on

Eas ter

morning

when

he

saw

Steen ' s pic ture (Exhibi t

138) in the

Post-Standard

about ten

days to

two

weeks

af te r

he had made tha t i n i t i a l s tatement in

July of 2014

to Detect ive

Pie t roski (HT p. 1031 l ines

12-14)

Pierce

s t a t ed tha t

from where

his vehic le was

pos i t ioned a t

the

in te r sec t ion

to where

he

saw

the van a t the

D W,

he

was

approximately

s ix ty fee t away (HT p. 1016 l ines 2-9) .

The Court i s

well aware

of the s ign i f i c a n t

and

mult i tude of

research YJhich

has been publ ished in the recent

years about the c red i b i l i t y of

eyewitness

i de n t i f i c a t i ons .

Over the

pas t

few decades, cr iminal defendants

have increas ingly ca l l ed

on

psychologis t s to of fe r

exper t opinion test imony regarding

the

object ive

and subject ive fac tors t ha t inf luence

the

r e l i a b i l i t y

of

eyewitness i de n t i f i c a t i ons .

They

argue tha.t misident i f ica t ions

may

l ead to

fa lse

convic t ions and t ha t in ce r ta in cases , exper t s

may

of fe r the jury

much

needed guidance regard ing

how

to

assess the

r e l i a b i l i t y

of

an

iden t i f i ca t ion .

Typical ly , such exper t test imony i s based on

research

f indings from experiments tha t t e s t

how

accurate ly experiment subjects

( i . e . , witnesses )

r eca l l

faces and other

de t a i l s under

various

condi t ions . According

. to

one

commentator, the

overa l l

research findings

show

tha t

witnesses

of ten make mistakes,

tha t

they tend to make

more

mistakes in

c ross - rac ia l ident i f i ca t ions

as well

as

when the events involve vio lence , tha t e r rors

are eas i ly

in t roduced by

misleading

ques t ions

asked shor t ly a f t e r the witness has viewed the

43



happening,

and t ha t

the professedimulated

confidence of the subjects in t he i r

i de n t i f i c a t i ons bears

the

accuracy

of these

Evidence

§206, a t

880

no cons i s ten t r e l a t i on to

recogni t ions 1 McCormick,

[6th

ed. 2006]) .

Although

there

may

be

r i sks

associa ted

with

al lowing an expert

to apply

research f indings from

experiments

on the r e l i a b i l i t y of eyewitness

i de n t i f i c a t i ons

to

r e a l - l i f e

i de n t i f i c a t i ons ,

these

f indings

- produced

through

sound,

genera l ly

accepted

experimentat ion

techniques and theor ies ,

publ ished in scholar ly journals

and

subjec ted

to

peer review have

over

the years gained

acceptance within the sc i en t i f i c community. On

th i s point ,

then Judge Kaye

previous ly s ta ted tha t

[ t ]o the extent t ha t jud ic ia l acceptance i s

i nd ica t ive of general sc i en t i f i c

acceptance ,

the

emerging t rend today

i s

to

f ind exper t

ps yc ho log ic a l t e s t imony on eyewi tness

iden t i f i ca t ion suf f i c i en t ly

r e l i a b l e to be

admitted,

and

the

vas t

major i ty

of academic

commentators have

urged

i t s acceptance

[P]sychological research

data

i s by

now

abundant,

and the f indings based upon t concerning

cogni t ive

fac tors

tha t

may

a f fec t

iden t i f i ca t ion

a're qui te

uniform

and

well documented (People v.

Mooney, 76

NY d 827, 829-830 [1990,

Kaye,

J . ,

dissent ing] [ in ternal

c i t a t ions

omitted]

) (People

v.· LeGrand,

8

NY3d

449,

454-55

[2007]).

To

understand more

about

the research of

mis iden t i f i ca t ions by

eyewitnesses ,

t i s important

to understand

how a perceived event can be a l te red in a witness ' memory:

Like vis ion ,

memory

i s also

beset

by

noise . Encoding,

s torage and r e m e m ~ r i n g are not pass ive , s t a t i c processes tha t

record, re ta in , and

divulge

t he i r

contents

in an

informational

vacuum, unaffected

by outs ide inf luences . The

contents

cannot be

44



t rea te d

as a v e r i d

ica l

permanen

t

r

ecord , l i k e ph

otographs

s to red

in

a

sa fe .

On

t

he co

nt ra ry , t

h e

f

id e l i t y

of our

memo

ries

for

r e a l events

may

be compro

mised by

many fa

c to r s

a t

a l l s tage

s of

proce

ss ing , from

encod

ing through

s tora

ge ,

to the

f i n a l s tages of

r e t r i eva l .

Without aw

areness,

we re g

u la r ly

encode e

ven ts

in

a

bias

ed mann

er

and

su

bsequently

fo rge

t , rec

o n s t ruc t , upd

ate,

a

nd

d i

s to r t

the

t

hin gs

we

b

e l ieve

to

be t rue (Nat ion

al

Researc

h

Council of

th e

Nat ional

Acad

emies,

0

Id

en t i fy ing

th e C

ulpr i t

59-

60 [2

014] ) .

In

t h i s c

ase , P i

e rce ' s mem

ory

of

th e man

he

saw

the

mo

rning

a t

the D

W

was examine

d.

n d i r e c t exa

minat ion , Pierc

e

s

t a t ed th e

fol lo wing

with re

spec t to

why he did

not r

ecognize

Steen in t

h e photo array

sho

wn to him

by

Inv

.

Pie t rosk i :

Q.

Now we

re you

able

to i den t i

fy

Mr. Steen in

t ha t

ph

oto

array

?

A.

No.

Q. And

why not?

A. Well,

fo r

one

th ing I '

v e

nev

er

- - I

n

ever - -

I

d id

n ' t

- - I don ' t kn

ow

th

e

man, I never

saw him

in

my l i f e

before e

xcept fo r t h i s

one

p ic tu r e

t h a t

's

embedded

in my

mind

, and I

wouldn t r

ecognize him

i he

walk

ed

p as t

me r ig h t

here. HT

p. 977

l in

e s

15-2

3)

During

c ross exam

inat ion, the fo l

lowing

te

s t imony took

p l

ace

between Pierce

and

D i s t r i c t A ttor

ney O

akes

in

r e

l a t i o n

to

45



Pierce

viewing photo

graphs

of Steen:

Q. Mr. P ie

rce, on Ju l

y tw e

n ty - f i f th of

2014 you

met with

In v es

t iga to r P i

e t rosk i of

the

Oswego

County S h

er i f f ' s

Depart

ment

d id

n ' t you?

A I do

be l ieve

it was th i s

year .

Q Ok

ay with in t h i s p

as t year?

A Yes.

Q

Ok

ay. And

d id yo

u meet w i

th

hi

m a t the

Osw

ego

County S h e

r i f f ' s

Depar

tment?

A

Ye

s

I

di

d .

Q And you

ga

ve a s ta te

men t to

I n v es ti

ga to r

P ie tr

osk i th a t d

ay.

A Y

es I did .

Q And

he ev

en tua l ly typed

up what

it was you

to ld

him

?

A

Y

es he

d id .

Q A

n d

did

he pr in

t t ha t

o

ff

and g

ive you

a chan

ce

to

read

it

s i r ?

A. Yes

he did .

Q

. Okay

Mr.

P ierce,

I m

going to d i r e c t

yo

ur

a t t en t i o n

to a

p a r t i c u l a r

segm

ent.

A Oka

y.

Q.

Where it

says , I did g

e t a good

lo o k

. What

I

'm going to

do i s I m

g

oing to

read i

t and ask

you

to

follow

along as

I

read

it

okay?

A Okay.

Q. Mr. P ie

rce, look

ing

a t

t

h e

s

ta tement ,

d id you

46



t e l l

Inves t iga to r P ie t rosk i , I

did ge t

a

good

look

a t the d r i v e r t h a t

h i t

the woman and l a t e r

saw

on the news the pol ice had Gary Thibodeau

under

a r r e s t and I

sa id

t h a t ' s the

guy t ha t h i t

the woman a t the convenience s to re a t 104

and

1048

Eas te r

morning.n

A Um hum.

Q Is t ha t what you t o ld Inves t iga to r P ie t rosk i?

A

Yes

I

did .

Q

And

again , would you agree wi th

me

t h a t

in your

s ta tement

you ' re

b as i ca l l y say ing

you were

p r e t t y

c e r t a i n t h a t it

was

Gary

Thibodeau

when you saw it

on

the news?

A Yes I was.

Q Mr. Pierce , during 1994 and 1995 weren ' t t he re

repea ted

reques t s in the

news o r

in

the media t h a t

if

anybody

had

informat ion

r e l a t i v e

to t h i s case

p l eas e come forward?

A Only

a f t e r

I had gone and made t h i s s ta tement

t o P ie t rosk i , Detect ive Pie t rosk i , did I

see

anyth ing

in

the

paper

about

it The

t ime

over the

years

t he re was

plea for

anybody

t ha t

knew

anyth ing

to come

forward a t t h a t t ime.

Q Well

in

1994 spec i f i ca l ly , weren ' t t he re

reques t s in

the media t ha t law enforcement was

asking anybody with informat ion about t h a t

morning

to

come forward?

A Um hum.

Q But you never

came

forward a t t h a t t ime?

A Well I f igured t he re

was

so

many

people t h a t

saw the i nc iden t

t h a t

one o f them should

have

gone

forward too ,

and

if t hey 'd have s tepped forward

I ' 'd

have

s tepped forward. At the t ime I

d idn ' t

47



want to get involved. HT

pp. 1005-1012)

Then, Pierce met with Inv. Pie t rosk i in October of 2014

to

view

two

photo

arrays

which

separa te ly

conta ined

photographs

of defendant

and

Steen.

Q. And when you

[Exhibi t

DDD] you

tha t

photo.

were

shown tha t

d i dn t

recognize

photo ar ray

anybody in

A. I

don t

know

any of them. How should

I

recognize them?

Q. Okay. Well, you d i d n t recognize any of

those

people as being

the

male in the van did you?

A.

Not a t a l l .

Q.

Okay.

Now do

you

rea l i ze tha t

Mr.

Steen i s in

posi t ion number

three in

tha t photo

ar ray?

A. I wouldn t say

tha t was

Mr. Steen

tha t

I know.

Th a t s

the Steen tha t

I know ( ind ica t ing) .

Q. Number

know.

Exhibi t 138 i s the

Steen

t ha t

you

A.

Um

hum.

That s the one

tha t

I

know.

Those

are

two di f fe ren t people

as

far as

I

can see. HT p.

1035 l ines 4-17)

In t h i s case, Pie rce s , i nab i l i t y to accura te ly

i de n t i f y

the

man he

cla ims

he saw

the

morning

a t the

D W can be based

on

many fac to rs .

Leaving

aside

for

the moment

P i e rc e s

fa i lure

to

repor t what

he

observed immediately

a f t e r the

inc ident ,

o r even

within those weeks or months t ha t followed before defendant s

48



t r i a l ,

the

Court wi l l

address the

problems

with

witness

i de n t i f i c a t i ons

which

are

suscept ib le

to

a ple thora of

t a in t .

A witness '

inev i tab le i n t e rac t ions with law

enforcement

and

l egal

counsel ,

not

to

mention communications

from

j ou rna l i s t s ,

family,

and

f r iends ,

have the

potent ia l

to

s ign i f i c a n t ly

modify

the

witness '

memory of faces encountered and

of

other

event

de t a i l s a t

the

scene

of the

crime. Thus the

f ide l i t y of re t r i eved events - and

the

accuracy of i de n t i f i c a t i on

-

i s

l i ke l y

to be grea te r when

re t r i eva l

occurs

c lose r to

the

t ime

of

the

witnessed

events . The

conclusion above

has important

impl ica t ions

for

law enforcement and

the

l egal

process

and ca l l s

in to ques t ion the va l id i t y

of in -cour t : i den t i f i ca t ions

and t he i r

\

appropr ia teness as s tatements

of fac t

National Research Council

of

the

Nat iona l Academies, supra a t 65

Given the f ac t

tha t t i s

unc lear

how many

t imes

Pierce

viewed both defendant ' s and Steen 's

photographs

in

the

media over

the

pas t

twenty years ,

and the

obvious

f ac t

t h ~ Pierce

i s

claiming

tha t

he

can

now, without any shadow of a doubt, say

tha t

Steen i s

the

one he saw

the

morning a t the D W with Ms. Allen, i s

not credib le .

While Pierce may be t ry ing to accura te ly

recount

from

his

twenty year

old

memory

what he

witnessed

tha t

morning,

outs ide inf luences and

the f r a i l t y of

encoding, s torage and

49



remembering must

be

taken in to

account.

Further , the Court

has

to reconci le the fac t

tha t

Pierce did

not

ident i fy e i the r defendant or

Steen

in the photo

.arrays when he viewed them

with

Inv. Pie t roski .

I t

i s n t un t i l

Pierce sees

Steen s

unre la ted

booking

photo in the newspaper some

two

weeks a f t e r meeting with Inv. Piet roski

t h a t · Pierce

cla ims

tha t Steen i s the rea l

suspect .

However, Pierce cannot even

i de n t i f y Steen in the i n i t i a l photo ar ray shown

to

him by law

enforcement

and

claims he does

not

know Steen.

The Court understands tha t the newspaper s p ic tu re of

Steen, which

shows

Steen with a beard,

helped

Pierce to

f ina l ly

recognize

Steen these

twenty years l a t e r .

However, for t h i s

Court to wholehear tedly inves t any credence in Pie rce s twenty

year old

condi t ional i de n t i f i c a t i on of

Steen

as

Ms.

Al len s

kidnapper,

the

Court has

to

ignore

common

sense

and

d i s c r e d i t

previous j ud i c i a l

r e l i ance

upon vas t sc i en t i f i c research; both of

which d i s c r e d i t

Pie rce s

tes t imony.

I f anything can be

gained

from Pie rce s tes t imony, t

i s tha t even

Pierce

cannot

ident i fy

defendant nor Steen from

. t he i r

photographs

taken

closer

in

t ime

to Ms.

A l l e n s

disappearance (Exhibi ts

and DDD . The

Court

understands

tha t

as Pierce t e s t i f i ed , he bel ieved he saw

a bearded husky, poss ib ly

50



migrant worker of

Hispanic

orig in , argue

with

Ms

Allen

tha t

morning.

However, due

to

the fac t tha t he f a i l e d

to immediately

repor t

and document what

he observed, his fa i lure

to

ident i fy

Steen

in

the f i r s t

photo array in 2014, and

Pie rce s

unwavering

bel i e f tha t ,

a f t e r defendant

was

a r res t ed in

1994

and dur ing

the

i n i t i a l interview

with

Inv.

Piet roski

in

2014,

tha t defendant

was

the man he

saw

the

morning with

Ms Allen in

1994,

the Court

cannot

yie ld

any evident iary value to h is tes t imony

tha t

Steen s

more recent pic ture

·enables

him

to ident i fy

Steen

as the suspect

from twenty years ago.

Statements Against

Penal

In te res t

Throughout the hearing, the Court

heard

from

many

of

defendant s witnesses about s tatements t ha t Steen,

Breckenridge

and

Bohrer . made

over

the

years per ta in ing to

Ms

Al len s

kidnapping. Defendant

argues

tha t

these

various s tatements

import

the men s culpabi l i ty , which i s

evidence defendant

could

use

in his defense a t

a new

t r i a l .

Defendant

argues

tha t the s tatements made by

Steen

Breckenridge and

Bohrer

to

other

indiv iduals are

admiss ible as

s tatements agains t t he i r

penal

i n t e re s t .

The hearsay except ion of

a s tatement

made agains t one s

penal i n t e re s t :

51



has

been

recognized out of

necess i ty

and in

the

b e l i e f t h a t the s e l f - i n cu lp a t i n g natu re o f the

dec la ra t ion serves as an

adequate

su b s t i t u t e fo r

the

assurance

o f r e l i a b i l i t y usua l ly der ived from

the admin i s t ra t ion of an

oa th

and the t e s t i n g o f

the s ta tements by cross -examinat ion .

Because

these

t r a d i t i ona l guaran tees

a re

absen t

when

out -o f -cour t dec la ra t ions aga ins t

penal

i n t e r e s t

a re o f fe red , such evidence

i s

admit ted

cau t ious ly

and only a f t e r r e l i a b i l i t y i s f i rmly es t ab l i shed

(People

v.

Thomas,

68 NY2d 194,

198; People

v.

Geoghegan, 51 NY2d 45, 49; see genera l ly ,

Fisch,

Y Evidence

§891

[2d 1977]) . As wi th a l l forms o f

hearsay evidence , a determinat ion o f the

ad mis s ib i l i t y

o f a dec la ra t ion

ag a i n s t

penal

i n t e r e s t ,

·

focusing on the

c i rcums tan t i a l

p r o b ab i l i t y o f

its r e l i a b i l i t y , must

be made

b efo re it

i s

rece ived ; the tri l

cour t

must

determine , by

eva lua t ing

competent

evidence

independent of the dec la ra t ion i t s e l f , whether the

dec la ra t ion

was spoken under ci rcumstances

which

renders · i t h ighly probab le t h a t it i s t r u t h f u l

see , People v. Shor t r idge , 65 NY2d 309, 312-313;

see genera l ly , Richardson,

Evidence

§206, a t 183-

184

[Pr ince lO h ed. 1973]; Goodman Waltuch,

Declara t ions

Against

Penal

In t e r e s t :

The

Major i ty

Has

Emerged, 28 NYLSchLRev 51

[1983]; Fine ,

Declara t ions

Against

Penal

In t e r e s t in New

York:

Car te

Blanche?,

21

Syracuse

L

Rev

1095

[1970]) .

Thus, before s ta tements o f a

nonte s t i fy ing

t h i r d

pa r ty

are

admiss ib le as a dec la ra t ion

ag a i n s t

penal i n t e r e s t , the proponent must s a t i s f y

the

cour t t h a t four pre requ is i t e s are

met:

1) the

d ec l a ran t must be

u n av a i l ab l e

to t e s t i f y by

reason

of dea th , absence from the j u r i sd i c t i o n , o r

r e fu s a l

to

t e s t i f y on co n s t i t u t i o n a l grounds ; (2)

the d ec l a ran t must be aware a t the t ime of its

making t h a t

the

s ta tement

was co n t r a ry

to

h i s

penal

i n t e r e s t ; 3)

the d ec l a ran t must have

competent

knowledge

of

the

under ly ing

f ac t s ;

and

4) t h e re

must be

su f f i c i e n t competent

evidence

independent

of the dec la ra t ion to

as su re

its

t rus twor th iness

and r e l i a b i l i t y (Thomas,

supra

a t

197) (People v. Brensic , 70 NY2d 9, 14-15 [1987]

52



[ i n t e r n a l c i t a t i o n s omi t t ed] ) .

Defendant

c a l l e d many witnesses to the s t and

throughout

the

hear ing

to

t e s t i f y

to c e r t a i n

s ta tements made

s ince Ms.

A l l e n ' s kidnapping

by Steen

Breckenr idge and Bohrer .

Put t ing as ide the fac t t h a t the f i r s t prong o f the

s ta tement ag a i n s t

penal

i n t e r e s t hearsay excep t ion , t ha t the

dec la ran t

i s

unavai l ab le to

t e s t i f y ' . was

not

met in t h i s case ,

the witnesses

who

t e s t i f i e d

to

ce r t a in s ta tements made

to them

by

Steen,

Breckenr idge

and

Bohrer

f a i l

to

meet the excep t ion

under

the o t h e r t h ree prongs.

As discussed

prev ious ly ,

P r i e s t ' s s ta tements made about

the subs tance o f

Steen ' s

admiss ion

i s

whol ly unre l i ab le . Not

only

did

defendan t no t

c a l l

P r i e s t

as a

wi tness

in t h i s case ,

but

r a th e r

chose to

admit her

writ t .en s ta tement , cor robora t ion o f the

a l l eg ed

admiss ion

t ha t Ms.

Al len was b u r i ed

somewhere

out on Rice

Road under the

f loor

of

a

cabin was proven f a l se .

Joseph Mannino t e s t i f i e d t h a t

while

he

was

i nca rce ra t ed

with Steen

in the

Oswego County J a i l

in

2011 Steen t o l d

him Ms.

Allen was

a

r a t and

t h a t

Steen had hauled

the

van which

Compare with People v Soto 26 NY d 455 [2015] wherein the witness was unavailable to

t e s t i f y because

she

had invoked her

Fifth

Amendment r ight to remain s i l e n t and the

People

~ e f u s e to grant her immunity.

53



contained

her

body

to Canada to

be

sa lvaged HT

pp. 641-642).

However, Mannino t e s t i f i e d tha t

Steen

did

not

impl ica te himself

in the

d i r e c t

kidnapping of Ms

Allen,

and acknowledged on cross

examination

tha t

Steen ' s

s tatements could

have

been

mere

conjecture .

As the Court

quest ions

Mannino's

inconsis ten t

hearing tes t imony

to

tha t of his July 28, 2014

sworn

s tatement ,

and

the fac t

the re

was no

bas i s

to

corroborate

the underlying

fac ts in the s tatements made by

Steen to Mannino,

Mannino's

tes t imony

would

not

be

allowed a t

t r i a l .

Amanda

Braley

t e s t i f i ed tha t

while

she was

a t

a party

in 2006 or

2007 she

heard Steen

t e l l

another

person You

know

me,

Shaggy, I 'm

not

a f ra id to go to pr ison, I ll go for anybody and

I can,

however,

t e l l

you I wil l

never see

a

day in pr ison

for

what

we

did

to

Heidi HT p. 673).

However,

despi te

Braley ' s

hearing

tes t imony,

she

did

not

rec i t e

these

same

s ta tements

when

she

provided her sworn s tatement to defendant ' s counsel (Exhibit

K

and HT pp. 689-693). Further , Braley admit ted tha t while she

bel ieved

Breckenridge was also involved in

Ms

Al len ' s

disappearance, she continued to soc ia l i ze

with

him and Wescott.

She

also sa id she

went

with Wescott to look

for Ms Allen ' s

remains in a

cabin

in 2006, a l l

while

bel ieving

Breckenr idge ' s

s tatement tha t Ms Allen ' s

body was disposed

of in a van which

54



was d r iv en

to Canada.

Braley

a l so t e s t i f i e d t h a t Breckenr idge

s t a t ed

in f ron t

of her

and s ix

o r

seven

othe r s in 2002 o r 2003 a t a pa r ty t h a t

he

took t h a t

b i t ch

to the scrap yard in the van, they had t

crushed, · and

t h a t

she was shipped

to Canada

HT pp. 669-670).

However, on c ross examinat ion, the fo l lowing

exchange

took

place :

Q.

Okay, and you t e s t i f i e d to

ce r t a in

s ta tements

t ha t

you

heard

Roger

Breckenr idge make,

one o f

those

be ing ,

We took t h a t bi t6h to the scrap yard

in

the van?

A.

Yes.

Q.

He

d i d n t spec i fy who we?

A. No.

Q.

We was?

A.

No.

Q.

Did

he

say

how

she

came to

be

in the

van?

A. No.

Q. He

d i d n t

say t h a t he

had abducted o r kidnapped

her

from

the

s to re

did he?

A.

No.

Q.

He

d i d n t say anything about k i l l i n g her did

he?

A.

No, not in

my

presence.

Q.

He

d i d n t say anything

about

dismembering her

o r chopping

up

her body o r anything l i k e tha t?

55



A. Not

to

me.

Q. He d i d n ' t

say

anyth ing about burning

t h e

body?

A.

No.

Q. At any

poin t? He d i d n ' t

r e a l l y - - and

he d i d n ' t

s p ec i fy

whether he

had

co n tac t

with her whi le

she

was even a l i v e did he?

A.

No.

Q.

Did he say

where the van came from?

A. Nope.

Q.

Okay,

comment,

you c a n ' t

and

a t t h a t t ime you s a i d when he made a

Jen

responded

e s se n t i a l l y

say ing Roger,

be

say ing t h a t

s t u f f

or t h a t s h i t ?

A. Yeah.

Q. Okay, and Roger 's response was, That

s h i t i s

done

and over

with?

A.

Yes.

Q.

Okay,

did

you

get the

impress ion

when

he

sa id

t h a t t h a t he wasn ' t concerned about

be ing

charged

wi th i t ?

A.

Yes.

Q. You thought he was

t a lk ing

about a r ea l

i n c i d en t ?

A.

Yes.

Q.

Based

on

might

have

body?

A.

Yes.

hear ing those

words,

a c t u a l l y

di sposed

o f

56

you

thought

he

Heidi A l len ' s



Q.

Okay,

so

s ince t ha t

- - wel l ,

t h a t nigh t

then ,

you repor ted

t

to pol i ce , r i gh t?

A No.

Q The next day?

A.

No.

Q The fo l lowing

month?

A. No.

Q

Never?

A Nope.

Q.

Okay,

so

a f t e r

t h a t day, you

never

had any

other

con tac t with Mr. Breckenr idge , r igh t?

A No, I

did . ,

Q

You

did?

A.

Yeah.

Q. This man you thought

disposed

of

Heid i s

body,

him?

s incere ly and hones t ly

you

kept hanging around

A I

r e a l l y

d i d n t

have

a choice

in

the mat te r .

Q You w eren t

l i v in g

t he re

a t

t h a t poin t , r igh t?

A

Right. HT pp.

676-681

Based upon Bra ley s cumula t ive tes t imony

t oge the r

with

her

sworn

s ta tement , the

Court

f inds

t h a t

Braley

s tes t imony

regard ing Steen and Brecken r idge s s ta tements i s

not t rus tworthy

or

r e l i a b l e .

57



Ronald

Clarke

t e s t i f i e d for the

defense

tha t

Steen

s ta ted to him and his chi ldren

a

few years a f t e r defendant ' s

t r i a l

tha t Ms

Allen was long gone

now , gone

to Canada and

tha t

the po l ice had a r res t ed the wrong

people

and tha t the

Thibodeau

boys

d i dn ' t do

i t HT p. 1051).

Steen

also

to ld

Clarke

tha t he knew more about Ms Allen ' s

case

than the pol ice .

This discuss ion took place when Steen

jus t

happened

to

pop in

the

door

the same t ime

I

was

l ike

kind of discuss ing with my

boys

to

l e t

them

go

for the bicycle

r ide,

and he looked r igh t a t my

boys,

and

they were

from

me

to

you away, and he sa id , 'Oh, boys , '

he says ,

It s get t ing

l a t e and

you be t t e r l i s t en to

your

dad. '

He says , 'Look

a t

what happened

to Heidi Allen ' ·

HT pp.

1049-

1050).

However,

again,

even assuming

Steen

had

not

t e s t i f i e d

a t

the hearing,

the re

i s

nothing

to

suppor t

the

argument

tha t

Steen ' s s tatements to Clarke were more than mere specula t ion , and

were not based

on

any di rec t knowledge Steen had of

Ms

Allen ' s

kidnapping.

Megan Shaw

t es t i . f ied

tha t

Steen

to ld

her in

May

of

2010,

and

then again referenced

t he i r

conversat ion in

June

of

2010,

tha t he

disposed of

Ms

Allen and

knew tha t Ms

Al len ' s

remains were

s t rewn

about in and around

a

cabin in Par ish , New

58



York.

Shaw

claimed Steen helped

dispose

of

Ms

Allen

to curry

favor with the Vicious Circ le motorcycle

club.

However, i f the

Court were to consider admit t ing Shaw's tes t imony

a t

t r i a l ,

again, there i s

no

corroborat ion to the fac t tha t Steen was

involved in the underlying

kidnapping.

At

best ,

Steen

i s

gui l ty

as an accomplice a f t e r the fac t in disposing of Ms Al len s

body.

3

Moreover, the Court c redi t s the tes t imony of r e t i r ed

Deputy Superintendent Lance

Mason,

who

s ta ted

tha t he founded the

Vicious Circle Motorcycle

Club around

2000, and tha t the Oswego

County chapter was

not formed

unt i l 2003

or 2004.

Mason

also

t e s t i f i ed tha t

he did not

know Steen,

Breckenridge or

Bohrer and

did

not know those

three

to

be

associa ted

with the Motorcycle

Club. Thus,

based

upon the c red ib i l i t y of

Mason's

test imony,

Shaw's

tes t imony

has

been

proven

not

to

be

re l i ab le

or

t rus twor thy

and

t

would

not be admitted as a

hearsay except ion.

Chris topher

Combes

t e s t i f i e d

tha t

he

worked with

Breckenridge

and

tha t some

t ime in the

ear ly

2000s,

Breckenridge

to ld Combes

We

chopped

her

up, we put

her in

a wood

s tove

and

put

her

in a vehic le and sent

her

to Canada , however, Combes

3

The

Court should note

that

even i f there

was proof o f

the

fact ,

the

s t a t ut e o f l imi tat ions

to

prosecute

Steen

for

t h i s act has

run

See, genera l ly PL §30.30 .

59



never t o ld the po l ice about t h i s

comment

u n t i l the Summer of 2014

HT pp.

1129-1131). Combes a lso

t e s t i f i e d t h a t

he

d i d n ' t

want to

get

invo lved because

he d idn ' t take

Roger ' s words

c red ib ly

HT

pp. 1131-1132).

In

l i gh t

of the

f ac t

t ha t

Combes

did not

be l ieve

Breckenr idge to be speaking t r u th fu l ly , and only mentioned

Breckenridge 's

comment

to a f r i end of hi s who was

in

law

enforcement

the

summer

of

2014

while the

Allen i n v es t i g a t i o n

became ac t ive once more,

the Court

does

not c re d i t

Breckenr idge ' s

s ta tement

to have been made knowingly to

inculpa te

himsel f .

Jes s ica Howard

a lso

t e s t i f i e d about

the s ta tements

Breckenr idge made to

her

about Ms Allen being a r a t and t ha t

Ms Allen wouldn ' t be found. The

Court

has grea t

concern over

Howard's

tes t imony

because

t

was learned through

her tes t imony

t ha t Howard

becomes

confused

and

cannot

remember

f ac t s

because

of

the s i d e -e f f e c t s of ce r t a in medicat ions she inges t s .

She a l so

t e s t i f i e d

t ha t the

me.dicat ions

were impacting

her

a b i l i t y to

remember what was sa id many years ago and t h a t she was not

sure

of her

tes t imony HT p. 1171 l i ne 3) .

Further , defendant

t r i ed

to admit a p ic tu r e Howard

took

with her c e l l u l a r phone

of

a

photograph

which was

pos ted

on a

community

Facebook s i t e . This photograph

por t rayed two men

and

60



one

woman who

Howard

bel i eved were Ms

Allen,

Steen

and

Breckenr idge . However, defendant

did

not u l t imate ly seek to have

t h i s

p ic tu r e

admit ted once defendant l ea rned t h a t the female in

the p ic tu r e

was not , in fac t , Ms

Allen.

Given the

q u a l i f i ed

tes t imony by Howard

due

to the

e f fec t s of

her

medicat ions on

her

a b i l i t y to r e c a l l ce r t a in

events , the Court

deems her

tes t imony

unre l i ab le and not

t rus tworthy.

Tyler

Hayes

t e s t i f i e d

t h a t in 2000 he had a

conversa t ion with Bohrer in a loca l

t avern . Hayes

approached

Bohrer a f t e r

some

patrons

complained

t ha t Bohrer ' s conversat ion

about Ms

Allen was

making them uncomfortable . Hayes

at tempted

to make Bohrer want to

leave

the bar

but

ended up engaging in a

conversa t ion with him. Bohrer

t o ld

Hayes

t ha t

Bohrer knew who

did

i t

and

knew

where

Ms

Allen ' s

body

was loca ted

HT

p. 200).

After

Hayes' a t tempt to have

Bohrer

leave

the bar was

fo i l ed ,

Hayes

spoke

with Bohrer

again

in the men's room.

At t h a t t ime,

Bohrer began sobbing

and

s t a t ed

t h a t

he

cou ldn ' t

deal

with t

anymore

and

Hayes t o ld him to ca l l the

po l ice .

When he

got

home

from the

t avern , Hayes

ca l led

law enforcement

and

provided a

s ta tement to them over the phone about hi s conversa t ion with

Bohrer .

61



In

comparing

Bo h re r s demeanor a t the t avern

to

Bohre r s

demeanor

dur ing

the

hear ing ,

it i s obvious

Bohrer was

deeply ,

a l b e i t

oddly,

emot ional ly a t t ached to

Ms. A l len s

kidnapping inves t iga t ion . During Bohrer s t e s t imony ,

the

Co.urt

had

to

t ak e a

recess

in order fo r Bohrer

to compose

himsel f and

s top

cry ing . The Court was

ab le to

judge

Bohrer

s t e s t imony

f i r s t

hand

and, desp i t e

whatever

emotional

connec t ion

he has to

the i n v e s t i g a t i o n i n t o Ms.

A l l e n s

di sappea rance ,

the evidence

does

not

prove t h a t when Bohrer made these s ta tements

to

Hayes

t h a t Bohrer

was

ac tu a l l y admi t t ing to kidnapping Ms. Allen.

Thus,

Hayes t e s t imony would

not be

admi t t ed

as it i s

not.

evidence of Bohrer having confessed to the kidnapping o f Ms.

Allen .

Las t ly , Danie l le

Babcock

t e s t i f i e d t h a t when she worked

wi th

Bohrer

in

2001

and 2002,

he

would

make

comments t h a t

would

make her fee l

uncomfor table :

Q

Did he

ever say anything

to

you

t h a t

made you f e e l

uncomfor table?

A. Yes.

Q

What

did

he

say

to you?

A.

He

would

t ll

us

severa l

t imes

t h a t

he would

do

us

l i k e he did Heidi .

HT

p. 632

l i n e

20-25)

However,

Babcock

admi t t ed

t h a t Bohrer

made

these

62



s t a t emen t s in

f ron t

o f two o t h e r employees, her s i s t e r Tanya

Babcock and Alex McNab, while t hey worked with

Bohrer

a t

Medspars .

Spec i f i ca l ly , with respec t to how she f e l t about these

t h r e a t s , Danie l le Babcock t e s t i f i e d t h a t she did

not

fee l t h a t

she

was

in danger and never con tac ted law enforcement :

Q You never

repor ted

t h i s

to

the

pol i ce

though?

A. No, we j u s t thought t

was

vague t h r e a t s .

HT

p. 635

l i n e s 9-10)

Given the natu re o f Babcock s

tes t imony

t h a t she

viewed

Bo h re r ' s

s ta tements to

her

and

her

, s i s t e r and

coworker

as

a

vague

t h rea t , t h i s

t e s t imony

i s not competent evidence which would

warrant ts admiss ion a t t r i a l .

In

sum,

none

of the s ta tements a t t r i b u t e d

to

Steen,

Breckenr idge and Bohrer , which defendant seeks

to

i n t ro d u ce as

newly discovered

evidence , a re

admiss ib le

under

the s ta tement

ag a i n s t pena l

i n t e r e s t

hearsay excep t ion . I mp l i c i t in

th

[e]

ground fo r

v aca t in g

a

judgment of

convic t ion i s t h a t the newly

discovered evidence be admiss ib le (People

v.

Tanklef f ,

4 9 AD3d ·

160, 182 [2nd

Dept.

2007] ) .

There fore , d e fen d an t ' s

reques t

t h a t

h i s co n v ic t io n be vaca ted based upon such newly discovered

evidence

i s

DENIED

63



Review

of

Diar

ies

This

Court con

ducted an in

camera

review of M

s. A llen ' s

1993

and 1

994 d

ia r ie s a t de fendan t

's r

eques t ' .

This r

eques t

was

b

ased upo

n

the

be l i e

f th

a t some of

the names wri t te

n

on a

p

iece

of

pa

per

which was f

ound wit

h

the

inde

x card i

n

the

D W p

ark ing

lo

t could

ha

ve been conta i

ned

within her

d ia r ie s

and

were Brady

m ate

r ia l .

on

e of the na m

es wri t ten

on

the p ie

ce of

paper a

re

ment

ioned in the

d ia r ie s .

The foreg

oing cons t i t

u t es

the opinion, d ec i

s ion

and

order

o f

th

e Court .

ENT

ER.

D N

IEL R. K

ING

ACTING OSWEGO

COUNTY CO

URT

JUSTICE

Dated: M

arch

2,

201

6

4

I t should

be

no

ted

t h a t

Ju dge Clary

f i r s t address

ed

de

fendant s

request t

o

have

the

Court

Thibodeau Decision

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