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The court agrees…. con’t

In the case at bar, the criminal court assumes the most stringent standard in People v Vilardi, that is, the “reasonable possibility” standard to apply.

Defendant’s contention fails because of the lack of evidence that DM’s suspicion predated his decision to accuse defendant and to cooperate with the D.A.’s office. There was no evidence at the hearing that on 27 February 2006, DM harbored either the suspicion suggested to him by F or the suspicion that defendant purposely set him up for a violation of probation. The defense post-hearing memorandum recognizes the crucial importance of this evidence; without it, the Brady violation is not material.

At trial, the major argument in the defense summation about DM and CB’s motive began with the proposition that once they made up the story there was no taking it back but then on 27 February 2006, he completely abruptly changed his story. The real motive at issue at trial, from the defense point of view, was the one at the time DM first made his accusation. Subsequent motivations were of course relevant, but diluted by the prior consistent accusation, made on February 27.

The timely disclosure of DM’s suspicions of defendant’s role in his probation violation would have given the defense additional fodder for cross-examination. In the end, however, these suspicions, whenever it arose, are only cumulative to the other demonstrated motives. DM testified at trial that even before he was arrested for violating probation, and before he accused defendant of sexual misconduct, he started ignoring her calls and telephone-record evidence showed there were hundreds of them because he got tired of her calling and bugging him to come down to the city.

As the People argue in their post-hearing memorandum, defendant chose at trial not to pursue further DM’s obvious annoyance at defendant. The information that DM developed suspicions about defendant’s deliberately causing his violation of probation, when DM was fully aware of the many other reasons for his probation violation, adds little, if anything, to his already-established motives to testify against her.

Defendant argues that the prosecutor violated due process by not correcting DM’s denial that his email referred to the New York prosecutors’ helping him get leniency in Connecticut. Indeed that is the natural reading of the email and C therefore telephoned DM to emphasize that she could not help him in Connecticut. DM explained otherwise at trial that by this phrase he meant it was up to him, if he did his community service and drug treatment and so on, he would get a better sentence.

The court finds that there is no due process violation. The prosecutors could not have actually known his testimony was a lie, if it was one. The prosecutors were not bound to be mind readers. The argument that the prosecutors had a due process duty to correct DM’s testimony is without merit, and because it is based on the trial record, it is not properly before this court in this post-judgment proceeding.

Defendant further argues in her post-hearing memorandum that the prosecutor deliberately misled the jury in her summation on the issue of DM’s motive to lie, by arguing that he had none. Again, the record conclusively demonstrates that the prosecutor did not so argue. First of all, the prosecutor’s arguments on the motive issue were a fair response to defense counsel’s extensive arguments that DM testified falsely due to his motivations as held in Layton v Phillips. The further prosecutorial “axe to grind” reference directed the jurors to DM’s demeanor, which, the prosecutor argued, was sad and almost resigned. Notably, there were no objections to these “axe to grind” arguments at trial.

Contrary to the defense contention, a full review of the summation demonstrates that the prosecutor’s argued that DM was testifying truthfully notwithstanding his conceded motives. Aside from being without merit, this defense argument depends almost entirely on matters of record, and is accordingly not properly before this court in this proceeding.

Given the nature of the Brady violation with respect to the known but undisclosed prior bad act, i.e., the courier information, in the context of this trial the undisclosed information is not material, not only because the information was vague, but also because it is so similar to the disclosures already provided: the information withheld is merely cumulative of equally impeaching evidence introduced at trial as held in United States v Spinelli. The prosecution in this case disclosed many prior bad acts, as well as DM’s desire to get out of jail and minimize his jail exposure and his intention to sue defendant and the school. The additional bad act of acting as a courier, and the additional reason for being angry with defendant, would have made little or no difference.

The 440 motion asserted a Brady violation because the prosecutors failed to disclose that DM used money provided by them for meals to buy and use drugs and alcohol with his friends. According to DM’s testimony at the hearing, however, he did not disclose this misconduct to the prosecutors. As DM never disclosed this information to prosecutors, they could not disclose it to the defense.

Defendant argues that the convictions should be vacated because of the egregious pattern of misconduct that occurred in this case and because had the jury developed doubts about Brook’s credibility in light of disclosures about how DM had been handled, it might in turn developed doubts about the CB-SA relationship, including whether CB had acted maliciously and even violently toward SA. SA’s conduct, viewed in such a different light, might not have appeared criminal. As previously discussed, the alleged pattern of misconduct depends in great part on misreadings or partial readings or the record. No such pattern has been established by the proof in this proceeding or by the record, and the naked speculation that the jury might have engaged in nullification needs no further discussion.

For the foregoing reasons, defendant’s motion to vacate the judgment in this sexual abuse is denied.

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