PUBLIC SAFETY CENTER 39 CHURCHILL ROAD ‘OSWEGO, NEWYORK 13126 ‘TELEPHONE: (315) 349-3200 FAX: (315) 349-3212 Office of the District Attorney MARK M. MOODY GREGORY S. OAKES ASSISTANT FIRST ASSISTANT DISTRICT ATTORNEY / CORONER DISTRICT ATTORNEYS DISTRICT ATTORNEY JAMES M. NICHOLSON MATTHEW J. BELL KATHLEEN M. MACPHERSON ROBERT E. GENANT INVESTIGATOR ALLISON M, O'NEILL COURTNEY E. HAVILAND ‘THOMAS W. CHRISTOPHER CHARLES H. CIESZESKI April 29, 2016 RECEIVED Frances E, Cafarell, Clerk New York State Supreme Court APR 2.9 2016 Appellate Division, Fourth Department APPELLATE M. Dolores Denman Courthouse eUDEPA eee 50 East Avenue, Suite 200 Rochester, NY 14604 Re: People v. Gary Thibodeau — CPL 460.15 Motion Indictment No. 94-161 Appellate Division Docket No. KA 16-00510 Dear Ms. Cafarell, Please let this letter serve as the People’s response to Defendant’s Motion for a Certificate Granting Leave to Appeal pursuant to CPL § 460.15 ("Leave Application"). Enclosed herewith are an original and one copy of this letter, along with an affidavit of service. PROCEDURAL HISTORY Defendant, Gary Thibodeau, was convicted after a jury trial of Kidnapping in the First, Degree on June 19, 1995 for the kidnapping and presumed murder of Heidi Allen on EasterSunday, 1994. Defendant was thereafter sentenced to 25 years to life. He is currently incarcerated at Clinton Correctional Facility. After the verdict, but prior to sentencing, Defendant filed a CPL § 330.30 motion alleging that the People failed to disclose Brady material, specifically the diaries of the victim. This motion was denied by the Trial Court. In 1996, Defendant filed his first CPL § 440.10 motion alleging prosecutorial misconduct and newly discovered evidence. Both allegations involved claims that a People’s witness, Brittany Link, had recanted her testimony of observing the van owned by Richard Thibodeau, Defendant’s brother and co-defendant, at Defendant’s home on the moming of Ms. Allen’s abduction. After a hearing, the Trial Court denied that motion. In an appeal, combining the direct and 440.10 appeals, this Court affirmed both the conviction and the denial of the first CPL § 440.10 motion finding, inter alia, “overwhelming evidence of defendant's guilt.” People v. Thibodeau, 267 AD2d 952. 953 (4% Dept. 1999), leave denied, 95 NY2d 805 (2000). Defendant subsequently filed a Federal Habeas Corpus petition, and that petition was denied. Thibodeau v. Portoundo, 486 F.3d 616 (2 Cir. 2007) On July 30, 2014, Defendant filed a second CPL § 440.10 motion claiming: 1) newly discovered evidence would result in a different verdict; 2) that the People failed to disclose certain Brady material; and 3) actual innocence, (Defendant's Filings and Letters (DFL) | -193). Various supplemental and additional filings were made by Defendant. The alleged newly discovered evidence primarily consisted of evidence of third-party liability for three new "suspects": James Steen, Roger Breckenridge, and Michael Bohrer. At the hearing, Defendant called various witnesses Who claimed to have heard statements made by one or more of the three new "suspects." Defendant also introduced a recorded phone conversation between a civilian and Jennifer Wescott, a former paramour of Roger Breckenridge, in which thetwo discussed Heidi Allen's abduction. Defendant also offered alleged eyewitness testimony of William Pierce, who came forward, for the first time, twenty years after the crime. Mr. Pierce initially claimed to have seen Defendant commit the crime and provided a sworn statement to police identifying Defendant as the kidnapper. After seeing a newspaper photograph of James Steen, Mr. Pierce later recanted his identification of Defendant and claimed to have seen Steen commit the crime. ‘The alleged Brady violation stems from a claim that the People failed to disclose the following reports at or before the time of trial: 1. areport of Dep. Christopher Van Patten, dated December 9, 1994 (Hearing Exhibit (HE) 9); 2. a report of Dep. Michael Anderson, dated December 9, 1994 (HE 10); 3. a report of Dep. Michael Montgomery, dated December 8, 1994 (HE 8); 4, a report of Sgt. Lortie, dated April 27, 1994 (HE 5); and 5. a report of Inv. Kleist and evidence tag, dated May 16, 1995 (HE 11). As part of the original motion papers filed on July 30, 2014, Defendant included an affidavit from his trial attorney, Joseph Fahey. In that affidavit, Fahey averred that he could “say with certainty” that he had “never seen any of these reports and documents.” (DFL 134-135). Additionally, Fahey claimed in his affidavit that he had never heard of Breckenridge, Bohrer, or Steen. (DFL 135). These claims were rebuffed during the hearing, as will be discussed below On October 10, 2014, the People filed affidavits in opposition to the CPL § 440.10 motion. Acting Oswego County Court Judge Daniel King, (hereinafter Hearing Court) presided over an evidentiary hearing. The Hearing Court heard testimony from thirty-three (33) defense witness and twenty-two (22) People’s witnesses. At various times during the pendency of thehearing, Defendant filed motions to offer additional evidence or call additional witnesses. The Hearing Court ruled on these motions on March 26, 2015 (Court Correspondence and Decisions (CCD) 6-10), ané April 7, 2015, (CCD 11-20). On April 6, 2015, the parties agreed to an adjournment to further investigate certain information. On November 2, 2015, the Hearing Court closed the proof and denied the outstanding defense motions to offer additional evidence ot call additional witnesses. (CCD 21- 40) On March 2, 2016, the Hearing Court issued a final Decision denying Defendant's CPL § 440.10 motion on all grounds. (CCD 42-105). Defendant now seeks a Certificate Granting Leave to Appeal pursuant to CPL § 460.15. THE HEARING COURT'S DETERMINATION THAT THE PEOPLE DISCLOSED ALL. DOCUMENTS CONCERNING THE VICTIM'S ALLEGED “CONFIDENTIAL, INFORMANT” STATUS IS CORRECT IN ALL RESPECTS In its final Decision, the Hearing Court found that the People complied with the requirements of Brady v. Maryland and provided Defendant with all information regarding Ms. Allen’s alleged status as a “confidential informant.” The Court further ruled that the disputed documents and Ms. Allen’s alleged “confidential informant” status did not constitute exculpatory material. Finally, the Court held that information regarding Ms. Allen's information card being dropped more than 26 months prior to her abduction was too remote and speculative, rendering it inadmissible. Accordingly, the Hearing Court found that Defendant suffered no prejudice. (CCD 7, 19-22) Defendant takes exception with each of these findings and alleges that the Hearing Court erred in all respects.In paragraph 45 of the Leave Application, Defendant currently contends that the following material is exculpatory and was not disclosed: 1. the report of Dep. Christopher Van Patten date stamped as received by the Sheriff's Department on December 9, 1994 (HE 9); 2. the report of Dep. Michael Montgomery, dated December 8, 1994 (HE 8): 3. the May 16, 1994 report of Inv. Nicholas Kleist (HE 11); and 4, material that Defendant designates as Ms. Allen’s “Cl file” (HE 11A). As noted previously, in his initial motion filed on July 30, 2014, Defendant claimed that he did not receive these four documents, as well as two others. Those two other documents were (i) Dep. Michael Anderson’s report dated December 9, 1994 (HE 10); and (ii) a report written by Sgt. Roy Lortie dated April 27, 1994 (HE 5). It appears that Defendant is not challenging the Hearing Coun’s determination relative to these two reports. Since Defendant has made no argument regarding these two documents (HE 5 and HE 10) in his Leave Application, the People infer that Defendant now concedes that he in fact received those items and/or was aware of the information contained therein at time of trial. The People believe this Court should interpret this Leave Application in the same manner and should affirm the Hearing Court's determination, as the People proved at the hearing that Defendant was aware of the information and had possession of the Anderson and Lortie reports. (Hearing Transcript (HT) 141-42, 921-24). In fact, the People demonstrated that the ten (10) page police report containing the Lortic Report (HE 5) was used by Defendant at his trial, a fact that Fahey ultimately acknowledged at the hearing. (HT 921-24) In any CPL § 440.10 motion, the defendant bears the burden of proving by a preponderance of the evidence that the challenged materials were not tured over, and the Hearing Court correctly determined that Defendant has failed to meet that burden. People v.Urlich, 265 AD2d 884 (4" Dept. 1999) leave denied 94 NY2d 799 (1999); see also CPL § 440.3066). THE HEARING COURT'S DESCRIPTION Defendant takes issue with the Hearing Court’s finding that the “constant references by defendant that Ms. Allen was a ‘confidential informant’ is misleading and inaccurate.” (Decision D. pg 4). Defendant's criticism is misguided and is the result of placing undue emphasis upon a particular label rather than examining the nature of Ms. Allen's contact with law enforcement. Defendant's protests about the Hearing Court's characterization of Ms. Allen alleged status is a matter of semantics, or perhaps a matter of interpretation. Defendant speaks about whether the court labeled Heidi Allen a "confidential informant" as though the label is the ultimate issue to be decided, The label placed on Ms. Allen is irrelevant. Defendant uses the term "confidential informant" as though it has a singular meaning, which is not accurate or helpful. The term can, and often does, have different meanings to different people. For instance, the term “confidential informant” may be used to describe an individual who establishes a relationship with the police and actively purchases illegal drugs for the purpose of obtaining search warrants or for direct criminal prosecution of the sale. (Scenario 1) However, the term "confidential informant” may also be used to describe an individual who speaks to the police, confidentially, one time about a single incident but does not have a long term relationship with the police. An example of this situation may be an individual arrested with drugs on him, and who cooperates with police officers and tells them the source of the drugs. This type of “confidential informant” may or may not testify in camera in support of search warrant application. (Scenario 2)However, the term "confidential informant" may be used to describe an individual who introduces an undercover police officer to a subject of an investigation so that the officer may make a direct purchase of drugs and/or so the officer may gather more information. (Scenario 3) Likewise, the term "confidential informant" may also be used to describe an individual who provides police with general information regarding a subject who is breaking the law. The information provided by this type of “confidential informant” may be based upon firsthand knowledge (ic. "I was at a party and saw him possessing / selling drugs"), or it may be based upon rumor or innuendo (i.e. “I heard that he deals drugs"). In regards to the latter, such information may be of limited value to the officer. (Scenario 4) Rather than simply applying a broad label, the Hearing Court instead examined the actual contact that Ms. Allen had with law enforcement. What Defendant characterizes as a contradiction in the rulings is simply a matter of the Hearing Court making appropriate distinctions based upon context. To the extent that Ms. Allen met with police and provided information of the type set forth in Scenario 4, the court accurately described her as a “confidential informant" in its decision of November 2, 2015. In doing so, the court was merely acknowledging that Ms. Allen had met with police and provided limited information. More significantly, though, the court examined whether the People disclosed all of the information regarding her contact with the Oswego County Sheriff's Office to Defendant. In that regard, the Hearing Court ruled that Defendant and the co-defendant “knew of Heidi Allen's contact with law enforcement about illegal drug activities prior to trial.” (CCD 45). Whether or not Ms. Allen is labeled as a “confidential informant is irrelevant in the light of the evidence that all reports and material were properly disclosed.As the Hearing Court made clear in its Decision, the evidence demonstrated that Ms. Allen’s information “pertained to friends of hers from high school who were using drugs, and none of her information implicated defendant, defendant's brother, or Steen, Breckenridge, or Bohrer.” (CCD 44-46). Likewise, Defendant has not argued, and he has offered no evidence to show, that Ms, Allen ever bought drugs at the request of the police, provided information that lead to a search warrant, introduced an undercover officer to a suspect, or met with any individual at the request of the police. She did not engage in any of the types of activity described in Scenarios 1-3 above. In this context, and for this reason, the Hearing Court was equally accurate in its final Decision when it stated that Ms. Allen was not a “confidential informant." Consequently, the court did not contradict itself in the two rulings, but rather, the court was drawing appropriate distinctions based upon context. Essentially, Defendant wishes to elevate form over substance, asking this Court to focus upon word choice rather than whether the Hearing Counts analysis was correct. ‘THE INFORMATION WAS DISCLOSED EXHIBITS 7 AND 8 As referenced above, the label the Hearing Court placed on Ms. Allen’s status is irrelevant because the People disclosed all of the documents to Defendant. With regard to HE 7 and HE 8, the Hearing Court correctly held that the credible evidence proved that the material was tumed over. Specifically, the Hearing Court held, “despite the fact [Assistant Federal Public Defendant Randi] Bianco testified that she had not seen the three investigative reports [HE 8, 9 and 10] until 2014, the Court credits Dodd's thorough testimony that he did, in fact, provide these three reports to Fahey in December 1994.” (CCD 53). The Hearing Court based itsdecision, in large part, upon its credibility of both the trial prosecutor, Donald Dodd, and Defendant's trial attorney, Joseph Fahey. In its decision, the Hearing Court recounted Fahey’s “understandable inability to recollect certain documents which he had in his possession twenty years ago.” (CCD 48). As Fahey acknowledged at the hearing, he took no steps to review the file since Defendant's trial. He was testifying solely from his memory of events that occurred over twenty years ago. (CCD 45-46). In light of this acknowledgment, the Hearing Court's reluctance to rely upon Fahey's uncertain memory is not only understandable, but absolutely appropriate. The People ask this Court to take careful note of the fact that Fahey, in the original affidavit he provided in support of the motion, claimed he had never seen or received five documents. (DEL 133-34) OF those five documents, Fahey ultimately acknowledged that he received two of five the documents listed in his affidavit or at least was aware of the information contained therein. Specifically, the hearing evidence clearly showed that Fahey possessed and ‘was aware of the contents of HE 5 (the Lortie report) and HE 10 (Deputy Michael Anderson's narrative report date stamped December 9, 1994). Likewise, in his original affidavit in support of the motion, Fahey unequivocally asserted that he had never heard of Roger Breckenridge. As demonstrated at the hearing, Roger Breckenridge appeared on the defense witness list that Fahey submitted for trial. (HT 940). Fahey's inability to recall that Breckenridge appeared on his witness list highlights the gaps in his memory and supports the Hearing Court's assessment that Fahey’s testimony was unreliable. Importantly, the Hearing Court also recounted that Fahey did not remember receiving the Lortie report (HE 5), even though he had marked and used portions of the same ten (10) page document while cross-examining witnesses at Defendant's trial. (CCD 55). As the HearingCourt made clear in its decision, Fahey had a vague memory of the case. (CCD pg. 7). Defendant’s entire Brady argument is based upon Fahey’s memory that he did not receive the documents. The Hearing Court could not rely upon the testimony of Assistant Federal Public Defender Bianco on this issue, as she testified that she had no contact with the file prior to the ending of the trial. Thus, she had no knowledge of the contents of the file at time of trial. (CCD pg. 14) She found the documents that Defendant claims he never received in the file of Defendant's brother and co-defendant, Richard Thibodeau, These documents included HE 5, which Fahey marked and used at trial, and the HE 10, which Fahey admitted he was aware of the contents of that report. Defendant offers no explanation of why a document marked as a trial exhibit and used by Fahey at trial was not located by Bianco in his file. As the court noted, however, the answer may be Fahey’s lack of organization and the passage of time caused the reports and marked trial exhibits to be lost. (CCD 47-48). Regardless of the reason, Fahey's inaccurate recollection regarding HE 5 and HE 10 certainly undercuts the reliability of his, testimony about the other disputed documents. In contrast, the Hearing Court credited Donald Dodd's testimony that the reports were disclosed, and there was substantial corroboration for Dodd's testimony. The Hearing Court found that Dodd's testimony that HE 7 and HE 8 were tuned over was corroborated by the following: (i) the time line of creation of the documents; (ii) Dodd's notes on his copy of the reports; and ‘the fact that the reports were found in the co-defendant’s file. As set forth by the Hearing Court, the evidence showed that on December 8, 1994, a discussion was had in court about Ms. Allen’s “confidential informant” status. (CCD 49). The next day, Lt. Dean Goodsell ordered Deputies Van Patten, Anderson, and Montgomery to 10prepare the narrative reports that became HE 8, 9, and 10. (CCD 53). At some point after HE 8, 9, and 10 were prepared, Dodd reviewed them and wrote on the following notations on “MY COPY”, “HA BRADY” “CC TOT BOTH D ATTN.” (CCD 50-51) (HT 1668-1670). These notes meant “my copy,” “Heidi Allen Brady” and “carbon copied turned over to both defense attorneys.” (HT 1668-70). In paragraph 43 of the Leave Application, Defendant claims that these reports were not discovered by the defense until June 2014, Defendant fails to explain how the reports were discovered. Assistant Federal Public Defendant Randi Bianco testified that the reports were found in the file of Defendant’s brother and co-defendant, Richard Thibodeau. (HT 30-44). This file apparently had been tumed over to Richard Thibodeau by his trial attorney, William Walsh. The Hearing Court found that both the timeline of events and the finding of the reports in the co-defendant’ file corroborated Dodd’s testimony that the materials had been tured over to Defendant. Specifically, the Hearing Court held, Moreover, it would not make sense that the People would not tum over these reports shortly after they received them in light of that fact the three officers were instructed by Lt. Dean Goodsell to draft these narratives almost three years after the information was dropped. It does not make sense that Lt. Goodsell would instruct these officers to make written statements if the statements ultimately were not to be turned over. (CCD pg. 53). The discovery of the reports in Richard Thibodeau’s file corroborates the fact that the People disclosed the documents. As shown by the transcript of the December 8, 1994 court appearance, Walsh and Fahey were sharing information. (Defendant's Hearing Exhibits (DE) 41), It defies reason and common sense for the trial prosecutor, who knew the wo attorneys ‘were cooperating and sharing documents, to disclose the reports to only one of the two attorneys. To accept Defendant's claim that HE 8 and 9 were not disclosed, the Hearing Court would have had to (i) credit the demonstrably faulty memory of Fahey; (ii) believe that the aPeople and the Sheriff"s Department generated the reports a day after a court appearance discussing Ms. Allen’s alleged “confidential informant” status but then failed to disclose the same; (iii) believe that Dodd’s contemporaneous handwritten notes documents that he turned over the reports were incorrect; and (iv) believe that the documents were disclosed to counsel for co-defendant but not to Defendant. To accept this version of events, the Hearing Court would have had to disregard logic and common sense. Defendant offered no corroborating evidence to support Fahey's uncertain recollection. Rather than building an affirmative case to carry its burden, the defense primarily has sought to attack the practices of the trial prosecutor, Donald Dodd. In the Leave Application (paragraphs 68-71), Defendant complains that Dodd did not take certain additional actions at the time of the disclosure to memorialize the same. However, Dodd's failure to write a date on certain correspondence does not negate the existence of those documents, Equally, the absence of a date does not invalidate the other contemporaneous handwritten notes that he made to memorialize the disclosure. None of the criticisms set forth in the Leave Application refutes the logical and rational inferences the Hearing Court drew from the Dodd's testimony. Nor do those complaints erase the efforts Dodd made at that time. That Defendant can point to additional steps that the prosecutor could have taken to memorialize his disclosure does not mean that the documents weren't turned over. Although the People reliably established that the reports were disclosed, it must be remembered that the People have no burden of proof. Instead, Defendant bears the burden of proving by a preponderance of the evidence that the challenged materials were not tured over. People v. Urlich, 265 AD2d 884 (4" Dept. 1999) leave denied 94 NY2d 799 (1999); see also CPL § 440.30(6). Fahey’s demonstrably faulty memory and Defendant's arguments for more 12evidence fall far short of the required preponderance of the evidence. As such, there is no legal or factual reason for this Court to review the Hearing Court’s decision. To the extent that Defendant questions the Hearing Court's credibility determinations, the People respectfully submit that this Court should give great deference to Judge King, as he heard and saw each witness firsthand. As an experienced jurist, Judge King was in the best position to evaluate each witness and assess their relative reliabi ty. EXHIBITS 11 AND 114 Defendant next contends that HE 1 and 11A were never received by him. HE 11A consists of a cover letter dated May 17, 1995 and enclosures. (DE 101-111). The enclosures are a report of Inv. Nicholas Kleist, date stamped May 16, 1995 by the Oswego County District Attorney's Office, detailing the locating of paperwork referring to Ms. Allen “as a confidential informant, a photograph of her, a Sheriff's Dept. card, and paperwork with drug information, also notes from the day of abduction and a 1993 personal planner.” (DE pg. 102). The May 17, 1995 cover letter and enclosures were copied to Judge Lee Clary who presided over Defendant's trial. (DE 101). HE 11 consists of three pages: 1) the evidence log sheet dated May 23, 1995; 2) a copy of the same Kleist report contained in HE 11A but with an additional date stamp of May 23, 1995 by the Oswego County Sheriff's Department; and 3) a photocopy of the evidence bag showing the evidence tag and portions of the contents of the evidence bag. (DE 98-100). Each page of HE 11 also contains hand written notes from Inv. Terry Whipple detailing in what specific sub- folders of the Sheriff's file a copy of these documents would be filed. (DE pg. 98-100) (HT. 1502). 3BBased upon Donald Dodd’s testimony, as well as the documentary evidence showing that Judge Clary was copied on the discovery letter, both parties requested that the Hearing Court le and determine whether the material was in the trial court's file. review the trial court's The Hearing Court found, and the evidence showed, that both HE 11 and HE 11A were tumed over to Defendant. With regard HE 11A, the Hearing Court held that the evidence showed that reports had been disclosed. Importantly, in reviewing the trial court's file, the Hearing Court found “that the trial court received this same letter [referring to the letter of May 17, 1995] sent to defense counsel on May 23, 1995.” (CCD 54). The Hearing Court went on to hold that “[i]t is contrary to logic to argue that the trial court received this letter on May 23, 1995 but that neither trial counsel received it without the attached documentation.” (CCD 54). The People assert that this finding is virtually conclusive proof that the defendant received HE 11. In an effort to make the Hearing Court's clear, simple holding seem vague and ambiguous, Defendant attempts to contend that the Hearing Court never specifically said it found HE 11A and therefore the decision is erroneous. (€ 78 of Leave Application). ‘The Hearing Court found “the same letter sent to defense counsel” and held that it would defy logic “to argue that the trial court received this letter on May 23, 1995 but that neither trial counsel received it without the attached documentation.” (CCD 54) (emphasis added). Obviously, the Hearing Court reviewed the May 17, 1995 letter and it had documentation attached. Defendant essentially wants this Court to defy logic by assuming in the trial court's file: 1) that the Hearing Court found “the same letter”; 2) that the attachments to the “same letter” of May 17, 1995 were different or non-existent; 3) that the Hearing Court would not mention that, fact in its decision; and 4) the Hearing Court would deceive this Court, the public, and the parties 14by holding or at least inferring that the attachments were disclosed to the trial court. Essentially, Defendant is suggesting that Judge King deliberately deceived everyone involved in this case. Conceming HE 11, the trial court found it was disclosed in the attachments to the June 5, 1995 letter. The Hearing Court found the June 5" letter in the trial court's file. (CCD 54). The Defendant attempts to argue that HE 11 and 1A were never disclosed based upon two separate points: 1) the presence of two different date stamps on the copy of the Kleist report sent with the June 5, 1995 letter; and 2) Fahey’s testimony that he never received the documents combined with his testimony that he would have objected to such a late disclosure. ‘The Defendant's argument ignores the clear evidence supporting the Hearing Court’s decision, and requires, once again, an ad hoc adoption of Fahey’s testimony despite the clear gaps in his, memory. The Hearing Court's decision explains presence of the two date stamps on HE 11 based upon the evidence presented at the hearing. The Hearing Court wrote Investigator “Whipple testified that Inv. Herbert Yerdon and Kleist were tasked with trying to find the documentation on Ms. Allen and once they found it, they were directed to bring it immediately to the District Attomey’s Office so that it could be turned over.” (CCD 53) (HT 1503-04). The evidence and testimony of Inv. Whipple, Inv. Kleist, and Dodd explain that the Kleist report and attachments were brought to the District Attorney's Office on May 16, 1995. This resulted in the date stamp from the District Attomey’s Office on that date. Then on May 17, 1995, a letter with copies of the report and attachments, that became Exhibit 11A, was sent to defense counsel and the trial court. After taking it to the District Attorney's Office, Inv. Kleist placed the original report already containing the date stamp from the District Attorney’ office and evidence bag with the attachments in the “in box” of Inv. Whipple at the Oswego County Sheriff's Department. That 15report was then date stamped on May 23, 1995 and again sent along with other materials to the District Attomey’s Office. The end result is that this report and material were disclosed to Defendant twice. Defendant then attempts to prove non-disclosure based upon Fahey’s lack of reaction to the June 5, 195 disclosure. Fahey testified that, if the material had been turned over for the first time on June Sth, he would have asked for mistrial and sanctions, From this portion of Fahey’s testimony, Defendant argues that Fahey’s lack of objection means that the material was not turned over. The flaw in this argument is the evidence shows that information concerning, exhibit 11 was already in Defendant's possession. The only evidence that Defendant offers that materials were not tuned prior to June 5, 1995 is Fahey’s testimony. As discussed above, Fahey’s memory has clearly faded with the passing years, and his recollection cannot serve as a sufficient basis to find non-disclosure. When Fahey’s memory is compared to the documentary evidence presented by the People and the contents of the trial court's file, the explanation for Fahey’s lack of protest regarding the June 5, 1995 letter seems clear: he already knew of the information contained Defendant has the burden of showing by a preponderance of the evidence that the materials were not tumed over. People v. Urlich, supra. Once again, the evidence fails short of that burden of proof. Therefore, the Hearing Court properly determined that no Brady violation occurred because all of the questioned documents were tuned over. THE DEFENDANT. EFFERED NO PREJUDICE To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was 16suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material. People v, Fuentes, 12 NY3d 259, 263 (2009). As the Hearing Court found, the disputed documents were not suppressed, (CCD 44-53). Assuming, arguendo, that the disputed documents were not turned over, Defendant suffered no prejudice. Therefore a new trial is not warranted, The Hearing Court held that evidence of Ms. Allen’s alleged “confidential informant” status dating back more than two years before her abduction was too remote and speculative to be admitted at trial, as was the fact that her information card was dropped in the parking lot of the D&W Convenience Store more than two years before her abduction, Defendant cannot establish a clear connection between these facts and Ms. Allen's abduction, Absent any relationship, this information is irrelevant and therefore inadmissible. Defendant relies primarily upon People v. Wright 86 NY2d 591 (1995) to support the theory that the disputed information and documents were material. In considering Wright, the Hearing Court found that the facts of that case were disparate from this case, The Hearing Court found that the facts in People v. Gamble 72 AD3d 544 (1" Dept. 2010), affirmed 18 NY3d 386 (2012) more analogous to this case. In Wright, the defendant was charged with stabbing the victim after the two returned to her apartment from a bar where they met. Wright, 86 NY2d at 594. The victim and defendant told markedly different stories regarding the events that occurred at the defendant's apartment. Id, The victim claimed he undressed in front of defendant and sat on her bed. Jd. While sitting on her bed, victim testified that defendant entered the room and stabbed him with a knife. Id. In contrast, the defendant testified that while at the apartment the vietim entered her bedroom naked and told her, “1 want to... you.” Id. During the trial, the location of the vietim’s clothing and why the victim did not immediately go the hospital or the police after being stabbed became focal points of the trial. With regard to the clothing, a police 7officer testified that he found certain clothing items inside and within the entranceway of the bedroom. Id. The officer’s report, however, stated the clothing was found outside the bedroom. Id, With regard to the victim’s reluctance to go the hospital or the police, the prosecutor argued at that the victim didn’t trust the system or that the police were not his “friends.” Id,, at 598 ‘After the defendant was found guilty of Assault 2" she learned that the victim had been an informant for the investigating police department. Id., at 595. ‘The Court of Appeals held the victim’s status as a police informant was material and relevant because “the outcome of this case turned on whether the jury believed [vi account of an unprovoked attack or defendant's claim that [victim] entered the bedroom naked planning to rape her.” Id., at 597. The Court of Appeals found that had “defendant been armed with the knowledge that [victim] was an informant for the same police department (that investigated the case], she could have presented the jury with a motive for [the police] to favor [vietim].”" Id., at $96, With regard to the victim’s failure to go to law enforcement after the assault because the vietim did not “expect justice from the system,” and because the police were not his “friends,” the Court of Appeals held that “evidence that [victim] had, in fact, provided the police with information on prior occasions would have effectively refuted the prosecutor's proffered justification for [victim's] behavior.” Id. at 597-98. The facts in Wright showed clear contemporary connection to the trial. The victim’s active, contemporaneous status as a confidential informant in Wright made that status relevant and material. The Hearing Court found, and the evidence clearly established, that Ms, Allen was not in any way an active “confidential informant. (CCD 45-46). The meeting Ms. Allen had with members of the Oswego County Sheriff's Department and the accidental dropping of her information card took 48place over 26 months before her abduction. (CCD pg. 45-46. In this way, Wright is dissimilar from this case, Additionally, the importance the informant evidence in Wright hinged on the potential Brady impact on the credibility of the victim. Wright did not argue, as Defendant has argued in this case, the “confidential informant” evidence created potential third party suspects. This is difference because the where the “confidential informant” evidence is used to attack the credibility of a witness, it has a clear connection or link to the trial, Where the admissibility of the “confidential informant” evidence is based on potential third party suspects, that link or connection does not automatically exist. ‘The fact that Ms. Allen met sheriff's deputies and her information card was dropped over 2 years before her abduction makes this case virtually indistinguishable from People v, Gamble, 72. AD3d 544 (1 Dept. 2010), affirmed 18 NY3d 386 (2012). and therefore, the Hearing Court was correct that the evidence of her alleged “confidential informant” status and dropped information card were too remote to be relevant. In Gamble, the defendant, who was charged with murder, sought to introduce evidence that unknown persons may have had a motive to kill the victim. To that end, defendant sought to establish that the victim was a drug dealer, had offered to become a confidential informant, and had been beaten by unidentified persons prior approximately a year and a half before the homicide. The First Department held, and the Court of Appeals affirmed, that the trial court properly precluded the defendant from introducing such background information about the victim, holding that “this evidence was unduly speculative, and that its prejudicial effect ‘outweighed its probative value.” Gamble, 72 AD3d at 545 (citing People v. Primo, 96 NY2d 351 (2001)). Likewise, if Defendant had sought to introduce evidence regarding the dropping of 19the information card or Ms. Allen’s alleged “confidential informant” status, it would have been precluded as unduly speculative. In paragraph 92 of the Leave Application, Defendant attempts to cireumvent the remoteness and speculative nature of this evidence by arguing that the information could have spread, Defendant argues, “a result of the exposure of her CI file, an unknown number of individuals learned that Allen was an informant, . . Once established, the fact of Allen’s C1 status would prove useful to any drug dealer suspecting his operations were threatened by an informant.” In arguing this point, Defendant simply proves the speculative nature of his, argument, He cannot connect a specific drug dealer who was threatened or knew of Ms, Allen’s alleged CI status. The exact same argument could be said of the evidence in Gamble. In Gamble, the victim was a confidential informant and had actually beaten up a year and half prior to the homicide. Certainly, the person or persons who beat him could have told two friends and those two friends could have told two friends and so on. However, the “admission of evidence of third-party culpability may not rest on mere suspicion or surmise.” People v. Primo, 96 NY2d 351, 357 (2001). The argument that “any drug dealer” could have abducted Ms. Allen is exactly this kind suspicion or surmise. Defendant attempts to draw materiality of the documents arguing that they undercut the thoroughness of the investigation. Defendant argues that “if this evidence had been disclosed, Fahey would have been able to argue to the jury that the Sheriff's Department closed down Sgt. Lortie’s desired line of investigation into people Allen had provided information about because they were at fault.” (105 of Leave Application). The fatal flaw in this argument is that Defendant clearly had Lortie’s report (HE 5), and with the information contained therein, Defendant could have argued this at the trial. As the Hearing Court found, and Fahey admitted, 20Defendant had HE 5 and had marked it at Defendant’s trial as Exhibit M, (CCD 47, HT 921-24) The relevant portion of HE 5 states that Ms. Allen’s “file would include the names of dealers that ALLEN would have been involved with.” (DE 40). Defendant, for whatever reason, decided not to pursue that line inquiry. The Hearing Court found that “Fahey was well aware of the contents in Montgomery's, ‘VanPatten’s and Anderson’s reports and consciously chose not to use them because the reports would have bolstered the testimony of McDonald and Baldasaro that defendant's kidnapping of Ms. Allen was drug-related.” (CCD 58). Defendant boldly claims that as “a preliminary matter, were it actually true that the CI evidence bolstered the testimony of the jailhouse informants, the prosecution would have sought its introduction.” (107 of Leave Application). This argument only makes sense if Ms. Allen was an active informant who purchased drugs for the police or provided drug information for search warrants. Instead, she simply recounted rumors or provided information about parties where she was present with high school friends, At trial, the People introduced testimony from Robert Baldasaro and James McDonald, who testified regarding admissions that Defendant made while housed in a Massachusetts jail. Defendant told Baldasaro and McDonald that the motive behind the kidnapping was because Heidi Allen was going to screw them on some kind of drug deal, (Tr. 1544, 1630-31, 1688-89). This testimony was actually elicited by the Defendant on cross-examination. Defendant attempted to discredit Baldasaro and McDonald, in part, by embracing the innocence of Ms. Allen. The defense went to great lengths to distance Ms, Allen from any kind of drug activity. For example, Defendant cross-examined Brett Law, Ms. Allen’s boyfriend, about whether either of them had any conversations about drugs with Defendant. (Trial ‘Transcript (Tr.) 1184). In his closing, Attorney Fahey strongly emphasized that there was no 21evidence of drug use by Heidi Allen, Brett Law, or Defendant. (Tr. 3313, 3331-32). Since Baldasaro and McDonald testified that Defendant told them the abduction was linked to drugs, Defendant tried to challenge their veracity by showing that Ms. Allen had no connection with drugs. In trying to portray the testimony of Baldasaro and McDonald as a fabrication with no connection to fact, Defendant used a sound defense strategy to attack the credibility of key witnesses. If Attorney Fahey had introduced evidence of Ms. Allen's status as a confidential informant, it would have run counter to his defense theory and would have given credence to Baldasaro and McDonald's claim that Defendant was motivated to harm Ms. Allen over an issue involving drugs. In an example of revisionist history, Defendant claims that the “outcome of [Defendant's] trial turned on whether the jury believed Baldasaro’s and McDonald's testimony that [Defendant] caused harm to Allen because of drug activity they were involved in together.” (fj 112 of Leave Application). If that were true, then Defendant has only himself to blame for his conviction, since he elicited testimony about the drug motive at trial. Defendant now attempts to link the dropping of the information card 26 months prior to Ms, Allen's abduction to a random, unnamed person with motive to harm Ms. Allen. Not only is Defendant's argument entirely speculative, the attempt to make this link disregards logic. As the Hearing Court found, “it is hard to imagine how defendant could have argued and admit into ‘evidence that some unknown drug dealer had planned for two years to abduct and kill Ms. Allen in broad daylight with witnesses around.” (CCD pg. 18). Defendant's request for an appeal on the Brady issue is based primarily upon his disagreement with the Hearing Court's determinations regarding the credibility and reliability of witnesses. In seeking appeal, Defendant seeks to have this Court disregard documentary 2evidence offered by the People and the reasonable inferences that the Hearing Court made from the facts established at the hearing, For the foregoing reasons, the Hearing Court correctly ruled that the People did not commit a Brady violation, and there is no reason to grant Defendant an appeal. 23THE HEARING COURTS CORRECTLY ANALYZED THE DEFENDANT'S ALLEGED CLAIMS OF NEWLY DISCOVERED EVIDENCE AND CORRECTLY DETERMINED IT WOULD NOT HAVE CHANGED THE VERDICT Defendant argues that an Appeal is warranted because the Hearing Court: 1) failed to assess the evidence against the trial evidence; and 2) failed to “non-mechanically consider the new evidence in its totality.” (II.B. of Defendant's Motion). An appeal is unwarranted because neither argument is valid, Initially, while Defendant is correct that this Court may substitute its own credibility determination for the Hearing Court, he simply glosses over the repeated holdings of this Court that a CPL § 440.10 hearing court’s “credibility determination is entitled to great weight.” People v. Lard, 71 AD3d 1468, 1469 (4"* Dept. 2010) leave denied 14 N.Y 3d 889 (2010); People v. Smith, 16 AD3é 1081, 1081 (4% Dept. 2005) leave denied 4 N.Y.3d 891 (2005); People v. Urlich, 265 AD2d 884, 884 (4" Dept. 1999) leave denied 94 NY2d 799 (1999), Defendant's arguments consist almost exclusively of challenging the credibility determinations of the Hearing Court. ‘The Hearing Court held that it was “hard pressed to see how any of the claimed newly discovered evidence presented at the hearing, if allowed at trial, would likely result in a different outcome.” (CCD 80). Implicit in that holding is the Hearing Court assessment of the evidence set forth in the CPI § 440.10 hearing as compared to the evidence adduced at trial. While the Hearing Court did not write a voluminous tome recounting the trial evidence, it instead took more direct route and analyzed the credibility and reliability of evidence presented by Defendant at the hearing, finding it lacking in both regards. Indeed, the Hearing Court explicitly held that “there was no credible, trustworthy, or reliable evidence presented at the hearing by defendant, which links any of these three men to this crime.” (CCD 81). Essentially, the Hearing Court 24determined that the evidence presented by Defendant at the hearing was either: (i) contradictory, unbelievable, and uncorroborated (CCD 63-81); or (ii) as a practical matter, incredible as a matter of law (CCD 82-93); or (iii) simply inadmissible (CCD 92-104). ‘The Hearing Court found that the alleged hearsay statements made by the purported "new suspects,” when considered solely under the umbrella of the third party culpability standard, lacked any corroboration, (CCD 68). Defendant asserts that the Hearing Court held him to a higher standard than what is required by law, arguing that the Hearing Court essentially required him to establish the “alternative suspects guilt beyond a reasonable doubt.” (120 of Leave Application). A review of the Hearing Court's final decision shows this claim is simply untrue, Defendant argues that Hearing Court “erred by failing to non-mechanically consider the new evidence in its totality.” (Point IB of Defendant's Motion). A review of the Hearing Courts Decision, however, contradicts this assertion. Repeatedly, the Hearing Court analyzed the evidence for admissibility of the evidence, consistency with other evidence, and credibility of the witness; and often the Hearing Court analyzed it in the alternative. (CCD pg. 64-70 (examining Tonya Priest’s evidence of James Steen’s alleged statements to het); pg. 76-81 (examining the evidence regarding the recorded phone call and evidence surrounding Jennifer Wescott); pg. 81-92 (examining the testimony of William Pierce); pg. 92-99 (examining the alleged statements made by James Steen to Joseph Mannino, Amanda Braley, Ronald Clarke, and Megan Shaw); pg. 99-103 (examining the alleged statements made by Roger Breckenridge to Christopher Combes and Jessica Howard); and pg. 102-104 (examining the alleged statements of Michael Bohrer to Tyler Hayes and Danielle Babcock). Clearly the Hearing Court did not “merely engage in the mechanical exclusion of such evidence,” as the lower court apparently did in People v. Tankleff. See, 49 AD3d 160, 180 (1 25Dept. 2007). The Hearing Court systematically examined each witness, and weighed not only the witness's credibility, but assessed how the witness’s testimony integrated with the rest of the evidence presented by Defendant. Having found the evidence presented by Defendant to be lacking in admissibility or reliability, or to be self-contradictory, there was no need for the Hearing Court to expound on the trial evidence in its decision, The Hearing Court clearly applied the appropriate legal standard and held that the newly discovered evidence would not lead to a different result at trial. (CCD 80). While Defendant attempts denigrate the evidence at Defendant's trial, it is important to remember that this Court reviewed the evidence on direct appeal. On direct appeal this Court held “[t}here is overwhelming evidence of defendant's guilt ...” People v. Thibodeau, 267 AD2d 952, 953 (4"" Dept. 1999), leave denied, 95 NY2d 805 (2000) (emphasis added). The newly discovered evidence offered by Defendant is plainly insufficient to overcome reasonable evidence let alone the “overwhelming evidence of defendant's guilt.” While an extended discussion of the evidence at trial is unwarranted in this motion, the central evidence can be summarized, as follows: Ms. Allen was working at the D&W Convenience Store on Easter Sunday, April 3, 1994, (Tr. pg. 1131). Ms. Allen was wearing a pair of white canvas shoes; a pair of light blue jeans; a gray sweatshirt that said Syracuse in green and blue plaid; glasses and her hair was pulled back at the sides, (Tr. 1134), At approximately 7:42 am, John Swenszkowski was leaving the store, and he encountered Defendant's brother's van in the parking lot, (Tr. 1233-34, 1246). As he passed the van heading towards his car, he saw a white male, shorter than Mr. Swenszkowski, wearing jeans and a t= 26shirt, a ball cap pulled down over his face, weighed about one hundred forty-five pounds, and had a mustache. (Tr. 1235-36). The two men passed each other. (Tr. 1236). When Swenszkowski walked out of the store, the van was parked parallel to the store and about ten feet from his vehicle. (Tr. 1234). As he walked by the van, Mr. Swenszkowski believed the engine was on because he smelled exhaust. (Tr. 1237-1238). After he got to his car, Mr. Swenszkowski put his seat belt on and started to leave. (Tr. 1238). As Mr. Swenszkoswki went to leave, the van began to move at the same time. (Tr. 1238). The van moved about three or four feet forward. (Tr. 1238). It was less than a minute between when Mr. Swesnzkowski passed behind the van and it started to move. (Tr. 1238). Both vehicles stopped and Mr. ‘Swenszkoswki swung around the van, (Tr. 1239). After Mr, Swenszkowski swung around the van, it moved in front of the double doors at the front of the D&W. (Tr. 1239). From this evidence it can be inferred that defendant's brother, Richard Thibodeau walked into the D&W, and, while defendant’s brother was inside the store, Defendant moved the van to in front of the Daw. In the early morning hours of Easter Sunday, 1994, Christopher Bivens left his residence in Oswego at about 7:30 am, (Tr. 1287). He drove east down State Route 104 ("SR 104"). (Tr. 1288). As he drove by the D&W, there was no traflic, and “it was raining with a little snow in the air.” (Tr. 1289). On 104 in front of the D&W, Mr. Bivens slowed down to make a left turn and looked into the station. (Tr. 1291). When he looked he saw two white males, a white female, and a van in front of the D&W. One male, who was closest to the store, was holding the female. (Tr. 1293). In front of them, about five or ten feet, the other male was heading toward the vehicle. (Tr. 1293). Mr. Bivens did not recall how the female was dressed. (Tr. 1295). The van 27in the parking lot was a Chevy C-10. (Tr. 1298). He identified Defendant's brother’s van as van he saw at the D&W. (Tr. 1301-02). David Stinson lived in New Haven on SR 104 about a mile west of the D&W store, (Tr. 1397). On his way to work out at his employer's on site gym, he stopped by the D&W first, however, to get the Sunday paper. (Tr. 1398). When Mr. Stinson entered the parking lot he did not observe people in the parking lot or any vehicles moving in the parking lot. (Tr. 1399-1400). He did not recall seeing any traffic on SR 104 as he drove eastbound towards the D&W. According to Mr. Stinson, he arrived at the D&W at 7:41 am, (Tr. 1400). There was no one in the store when he entered. (Tr. 1401-02). Mr. Stinson attempted to find the clerk to tell him or her about the money on the counter. (Tr. 1399), Mr. Stinson walked outside to walk around the store, (Tr, 1405). He saw nobody on the outside of the store. (Tr. 1410). When he was outside, a marked sheriff's car was making the turn from SR 104b southbound to SR 104 westbound. (Tr. 1411). Mr. Stinson flagged the ear down, (Tr. 1411). ‘The marked vehicle was operated by Deputy Rick Curtis whom Mr. Stinson knew. (Tr. 1411). On April 3, 1994, sometime after 7:00 am, Oswego County Sheriff's Deputy Richard Curtis was traveling southwest on SR. 104B and turned right on to SR 104. (Tr. 1416). As he was turning right, a patron of the D&W store flagged him down. (Tr. 1416). The male, David Stinson, approached him advised Deputy Curtis and advised him that he went to make a purchase but no one was in the store. (Tr. 1417). Mr. Stinson got his attention at 7:45 am. (Tr. 1422) In the early morning hours of Easter Sunday, Nancy Fabian was driving her husband and daughter to her sister’s house in Heuvelton, New York. (Tr. 1718). They left their house in the City of Fulton at 7:12 am, (Tr. 1719), She drove into Mexico on State Route 3 ("SR 3"). (Tr. 1719). In the Village of Mexico, she tuned right onto SR 104 toward Interstate 81. (Tr. 1719- 281720). The intersection of SR 3 and SR 104 is east of the D&W, and just west of the intersection of SR 104 and SR 69 in Mexico. ‘The weather was overcast and hazy. (Tr. 1720). At the intersection of SR 3 and SR 104, Ms. Fabian stopped and made a right on red. (Tr. 1720-21). Before making the right on red, she looked to see if there was any traffic. (Tr. 1721). There was no traffic either direction, (Tr. 1721). After turning on to SR 104, she noticed a van, later identified as Defendant's brother's van (Tr. 1732-33), coming up behind her very fast. (Tr. 1721). She had traveled about 100 yards before she noticed the van in her rearview and side mirrors. (Tr. 1722). The van came within two or three feet of her rear bumper. (Tr. 1724). This caused her concer, and she commented to her husband, “Where did this guy come from?” (Tr. 1724). After that she said something like he is right on my ass, and the van began to swerve back and forth, (Tr. 1724). She lost sight of the van at the intersection of SR 69 and SR 104 in the Village of Mexico. (Tr. 1739). Ms. Fabian was able to observe certain features of the person driving the van. (Tr. 1726) ‘The driver was white male with a scruffy beard as though he had not shaved in a few days, and he had dark hair. (Tr. 1726, 1741). His hair was over his shirt collar in the back, and bushy. (Tr. 1729-30). This description matched the Defendant. (Tr. 2011). She observed the driver “trying to control something in the back of the van or push something down in the back of the van.” (Tr. 1729). Ms. Fabian saw him reach with his right arm and try to push something down or back. (Tr. 1729). Originally, Ms. Fabian thought the driver had a dog and was telling the dog to lie down or stop rolling around, (Tr. 1729). At one point the driver “turned completely around and that’s when he was going back and forth in the lanes because he was just trying to control whatever was going on back there and trying to control the van too and he just wasn’t doing a 29very good job.” (Tr. 1729). When the driver turned around he was not looking he was not watching the road but paying attention to whatever was in the back of the van. (Ir. 1729). Donald R. Neville, Sr. lived on Kenyon Road in the Town of Mexico. (Tr. 1779). He lived there for ten years. (Tr. 1779). His neighbor's included Defendant, the Cowens, and the Links. (Tr. 1780-81). Defendant lived on the opposite side of Kenyon Road, (Tr. 1781). At approximately 7:30 am that Easter Sunday, Mr. Neville left the house to go the Kwik Fill at the intersection of SR 69 and SR 104 in the Village of Mexico. (Tr. 1785, 1788-89). When he left the house to go to the Kwik Fill, he drove by Defendant's house. (Tr. 1785). While at the intersection of SR 69 and SR 104, where the Kwik Fill was located, he observed a few vehicles, including a van. (Tr. 1788-89). The van was turning off of SR 104 on to SR 69. (Tr. 1789). He recognized the van because he had seen it at Defendant's home before. In fact, Mr. Neville believed the van belonged to Defendant. (Tr. 1789). Richard Thibodeau’s van was observed at Defendant's home by Donald Neville, Sr. (Tr. 1797-98), and Brittany Link, (1844-45) at various points on the morning of Easter Sunday 1994, Additionally, around 9:00 am, Bill Cowen and Sue Cowen both observed Defendant speaking with to a gray haired man, who was sticking his head out of the passenger side of a van that was parked on the side of the road near Defendant's residence. Mr. and Mrs. Cowen described the van they saw that morning, which matched the description of Defendant's brother's van, but they could not positively identify the van as being the same. (Tr. 1872-76, 1880-81, 1914-19, 19: 34). Donald Scott Neville, the son of Donald Neville Sr., went outside his house on Kenyon Road around 10:30 am on Easter Sunday of 1994. (Tr. 1961). After he was outside for about 15 minutes, he heard a real violent argument coming from the direction of Defendant's residence, 30and it lasted about a half hour. (Tr. 1963-64). At one point, he went inside and came back out with his brother, Mike. (Tr. 1964). According to both Mike and Donald, the yelling and screaming continued after they came back outside. (Tr. 1964, 1984). Neither of them recognized the voices. (Fr. 1964, 1985). Robert Baldasaro and James McDonald testified on behalf of the People. Both men had been incarcerated with Defendant in the Worcester House of Corrections, located in Massachusetts ("Worcester Jail"). Neither of these men received any benefit for their testimony. (Tr. 1557, 1587-89, 1697, 1707). In May of 1994, Mr. Baldasaro was being held at the Worcester Jail. (Tr, 1529). Mr. Baldasaro met Defendant about a month and a half after Mr. Baldasaro had been in jail. (Tr. 1533). James McDonald was also on the same cell block. (Tr. 1534-35). Mr. Baldasaro had a number of conversations with Defendant while they were incarcerated together. (Tr. 1535). The first conversation took place the night Defendant arrived in the cell block. (Tr. 1536). This conversation was very brief and consisted of an exchange of hellos. (Tx. 1537). Within a few days of Defendant's arrival, Mr. Baldasaro went down to Mr. McDonald's cell for coffee after breakfast. (Tr. 1538). In Mr. McDonald’s cell, they talked about why Defendant was there. (Tr. 1538-39). Defendant told him that people in New York believed that he was involved in kidnapping a girl from a convenience store. (Tr. 1539). Mr. Baldasaro asked him “what do you mean they think you're involved in kidnapping a girl from a convenience store?” (Tr. 1540). Defendant responded that he “and his brother were with her that morning and they were the last ones with her and somebody was going to find out, so they thought he was involved with it.” (Tr. 1540). Mr. Baldasaro asked Defendant if he was involved in it, and Defendant respoaded “No, 31and if I was, I wouldn’t tell you anyway.” (Tr. 1450). This conversation lasted about ten minutes. (Tr. 1540-41). After lunch that day, Mr. Baldasaro had another conversation with Defendant in Mr. MeDonald’s cell. (Tr. 1541-1542). In this conversation, Mr. Baldaraso said to Defendant, “can’t they just have you — you know, put you in a line-up and have the git! point to you and say, you know it wasn’t you that grabbed her or anything like that?” (Tr. 1452). Defendant responded “she wouldn’t be able to do that.” (Tr. 1452). Mr. Baldaraso asked why not, and Defendant responded, “Because she is dead.” (Tr. 1542-43). When asked how he knew that, Defendant replied he just knew. (Tr. 1542-43). The next moming after breakfast, Mr. Baldaraso and Defendant had another conversation in Mr. MeDonald’s cell. (Tr. 1543-1544). Mr. Baldaraso said to Defendant that since she was taken out of the store maybe they can check for fingerprints to see who grabbed her. (Tr. 1544). Defendant responded “They can’t check for any fingerprints because there wasn’t any struggle. Whoever she knew — left with, she must have knew.” (Tr. 1544), Mr. Baldaraso asked Defendant how he was involved in this anyway; and Defendant replied that he and “and his, brother went down to talk to her because she was upset and they wanted to try and straighten things out, that she thought that they were ~ Gary was going to try to screw her about something and she was really upset so they went down ~ they wanted to have a conversation with her.” (Tr. 1544). Mr. Baldasaro believed that Defendant was going to screw the gir! out of something. (Tr. 1630-1631). Defendant continued, saying, “they got in the van, they drove up by the woods by his house, they talked to her, Gary got out at his house, his brother drove this girl back to the store and dropped her off and then remembered he forgot to get cigarettes.” (Tr. 1544). When his brother “went back to get cigarettes, there was nobody at the store.” (Tr. 1544). Defendant 32did not say what his brother’s name was. (Tr. 1545). Defendant did say they took his brother's van to the store. (Tr. 145). Defendant told Mr. Baldarso that in the wooded area behind the house the girl was really upset and he tried to calm her down; and when he finally calmed her down, he got dropped off at his house. (Tr. 1545-46). After that, his brother dropped her back off at the store. (Tr. 1545-46). Defendant also said, “that his brother went back to his house and called Gary up on the phone and told Gary that it was just on the news that somebody was ~ that the girl that they were with was just taken out of the convenience store. (Tr. 1546). Within the next three days, Mr. Baldaraso had a conversation in the doorway of Defendant's cell. (Tr. 1548). Several times before this conversation, Mr. Baldaraso asked him if they found the girl, and did she show up to clear him. Defendant would just reply that she was dead and they would not find her. (Tr. 1549). When Mr. Baldaraso was standing in the doorway of Defendant's cell, Defendant was on his bed tying his sneaker, and Mr. Baldaraso asked Defendant “how did she die?” (Tr. 1550). Defendant responded that she “had been bashed in head with a shovel and she was mutilated.” (Tr. 1550), Mr. Baldaraso asked Defendant how he knew, and Defendant responded “Well, they are accusing me of doing it. If I was going to do it, that’s how it would have been done.” (Tr, 1550). Mr. Baldaraso walked away without any further conversation at that time. (Tr. 1551-1552). About two days later, Mr. Baldaraso and Defendant had a conversation in Mr. McDonald's cell. (Tr. 1553). Defendant appeared upset, and told Mr. Baldaraso that “the police in New York were messing with him, and he had to hurry up and get out of here.” (Tr. 1553). ‘There was another conversation, where Defendant came back to his cell and looked uptight. (Tr. 1582). Mr. Baldasaro asked Defendant what was wrong and Defendant said that ‘New York police were still messing with him and had found his furnace. (Tr. 1582). Defendant 33went on to say that they found bones and some clothing in it. (Tr. 1582-83) Defendant said that the bones were chicken or squirrel bones and the clothing was an old carpet he was burning. (Tr. 1583). Defendant asked “if I did burn somebody in a furnace, they wouldn’t be able to tell, is that correct?” (Tr. 1484). Mr. Baldasaro responded that teeth do not burn. (Tr, 1584). On the day Defendant was released, he told Mr. Baldasaro to keep his mouth shut about everything he told him, (Tr. 1558). Defendant never mentioned the name of the git! involved, (Tr. 1553-1554). James McDonald was incarcerated in the Worcester Jail for a D.U.I. on May 25, 1994 and was released on July 8, 1994. (Tr. 1647). Mr. McDonald met Defendant in C block of the jail. (Tr. 1659). A few days after Defendant arrived in C block, Mr. McDonald had a conversation with Defendant in his cell (Tr. 1661). Robert Baldasaro was present as well. (Tr. 1661). The conversation was about why Defendant was in jail. (Tr. 1662). Defendant said he was being held on drug charges and that there was no bail. (Tr. 1662). Additionally, Defendant said he and his brother were being investigated for the disappearance of a girl in New York at a convenience store. (Tr. 1662). When asked why he was being investigated, Defendant said that they went to the store early that morning to purchase cigarettes. (Tr. 1663). Defendant said they went to the store in his brother's van. (Tr. 1663). A few days later, Defendant, Mr. Baldasaro, and Mr. McDonald had another conversation in Mr. McDonald's cell. (Tr. 1663). In this conversation, Defendant said that the gir! had been killed with a shovel. (Tr. 1665). Mr. McDonald asked who the shovel belonged to, and Defendant said it was his shovel. (Tr. 1666). Defendant described the shovel as an Army fold up kind of shovel. (Tr. 1666). Defendant told McDonald that he hit the girl in the head with the shovel. (Tr. 1667). In this conversation, or one a few days later, Defendant told Mr. McDonald 34that they would never find her. (Tr. 1667-69). Defendant told Mr. McDonald that this girl was into coke and they did coke together. (Tr. 1688-89). Additionally, evidence at the trial showed that Defendant knew Ms. Allen had been abducted from the D&W before that information was released to the general public. David Nelson, a defense witness, testified the Defendant called him at about 9:30 am the morning of the kidnapping and told him that Heidi Allen was missing from the D&W Convenience Store, specifically mentioning her by name. Notably, a local CBS affiliate, WIVH-5, aired the first public news report about a missing girl between 10:30 am and 10:45 am on Sunday April 3, 1994. (Tr. 3246-3249). Ms. Allen’s name was not broadcast at that time. Through this defense witness, the jury learned that Defendant knew of Ms. Allen's abduction an hour before any information bad been made public. In the chart Defendant provided to this Court setting forth the trial evidence, Defendant fails to mention, among other things, Defendant's knowledge of Ms. Allen’s name and the fact she was missing prior to any public disclosure of that information. Defendant instead attacks the credibility determinations of the Hearing Court because the Hearing Court did not comport with their desired result. In so arguing, and in an effort to find corroboration where none exists, Defendant distorts and exaggerates the evidence from the hearing. For example, in an effort to link the three individuals he accuses of the crime--James Steen, Roger Breckenridge, and Michael Bohrer--Defendant cites the hearing testimony of Eat! Russell. Defendant claims that Mr. Russell testified that “all three suspects were connected to ‘Tom Martin and he had witnessed their presence together prior to 1993 at Martin’s social gatherings. (H.T. 1457-58).” (§ 127 of Leave Application) In truth, Mr. Russell's testimony was far different than what Defendant claims, as he never put these three "suspects" together. 35,The People ask this Court to examine Mr. Russell's testimony, beginning on line 8 on page 1455 until the end of his direct testimony on page 1458, (The People have gone back to 1455 to eliminate any argument of a mistake in page citing). This Court will see that Mr. Russell testified as follows: Q.Now, do you know an individual by the name of Tom Martin? A. Yes, Ido. Q. How do you know Tom Mactin? A. Him and I have been friends for probably twenty years. Q. And did you ever work for Tom Martin? A. Yes, I did. Q. How long did you work for him? A. A couple of years. Q.Do you remember what year? A. Late eighties to early nineties would be between eighty-eight and ninety-two, somewhere in that time frame. Q. Now, do you know an individual named Roger Breckenridge? A. Yes, ido. Q. And how do you know Roger Breckenridge? A. I met him through his brother Rodney when he - - when he was older after I come home from the service and also when he worked with Tom Martin Q So Roger Breckenridge worked for Tom Martin when you worked for Tom Martin? ‘A. Yes, ma’am. Q. And do you recall what year that was again? ‘A, Would have to have been well, late eighty-nine to somewhere around ninety- two or ninety-three, Q. Now, did you know an individual named James Steen? A. Yes, Ido. Q. How did you know him? A. He is my wife’s cousin. Q. And when did you first meet Mr. Steen? 36A. Probably shortly after I got out of the service at a Stevens family reunion. Q. Now, when you were working for Tom Martin, did you ever see Roger Breckenridge or James Steen in any kind of social setting? A. Once in a while, yes. I'd see Roger more than I would see Jay. Q But you saw them together back in the early nineties? A. Yes, off and on. Q. Now, did you know an individual name Michael Bohrer? A. [know of him, yes. Q. And was he -- I’m sorry, strike that. When you were working for Tom Martin, did you see Michael Bohrer? A. 'd seem him once in a while, yes, ma’am. Q. Now, Jennifer Westcott, do you know Jennifer Wescott? A. Yes, I do. Q And when did you first come into contact with Jennifer Wescott? A, Would have to have been late eighties, early nineties again, ninety-one, ninety- two, somewhere in there. Q. And when you met Jennifer Westcott, was she with Roger Breckenridge? A. Um hum. Q And could you tell the Court what you remember about Roger Breckenridge and Jennifer Wescott? ‘A. Well, I remember seeing them once in a while together. We had a party at Tom Martin’s once, they were there, and we thought, | emphasis we thought, Roger was serving her aleohol because she was under age and he was asked to take her off the property. Q. And this was --- (OVERRULED OBJECTION) Q. This party would have been before 1993? A. Yes. Q. And how did you know it was before 1993? A. Because in 1993 my middle daughter was born, my aunt died and we moved to the Town of Lacona. Q So you weren’t around that Oswego County group after you moved to Sandy Creek? A. Offfand on I was, yeah, I'd come down, my wife and I would drive down, we'd see her parents and visit them for once in a while, 37Q. But as far as hanging out social you weren’t doing that. A.No. Q. Now, and you recall seeing Roger Breckenridge hanging out with Jennifer Wescott before you moved to Sandy Creek in 1993. A. Um hum, Q. You have to say yes for the record. A. Yes, ma’am, Tapologize, Your Honor THE COURT: That’s fine. Q. And you met Michael Bohrer through Tom Martin? A. Yes, ma’am. MS. PEEBLES: No further questions. (HY 1455-58). Contrary to the embellishment of Defendant in his Leave Application, Mr. Russell never testified that James Steen was connected to Tom Martin. More importantly, he never put Michael Bohrer at Tom Martin’s social gatherings. In fact, he never put James Steen and Roger Breckenridge together at Tom Martin’s social gatherings. It is this kind of misrepresentation of the testimony that forms the basis of much of Defendant’s claim that the Hearing Court was factually incorrect. Additional examples of this type of distortion is Defendant's claim that Michael Bohrer admitted his involvement in Ms. Allen’s abduction to Tyler Hayes. ({] 122(i) of Leave Application) Mr. Hayes testified that Mr. Bohrer told him that the Defendant and his brother were “not the ones that did it. He says 1 know who did it and I know the whereabouts of Heidi Allen’s body.” (HT pg. 200-01). According to Mr. Hayes, in a later conversation that same evening, Mr. Bohrer said he had “been dealing with this too long and he didn’t want to deal with it anymore.” (HT pg. 201). Even if this Court were to accept the testimony of Mr. Hayes at face value, the statements that he attributes to Mr. Bohrer are not an admission of personal involvement. Indeed, on cross- 38examination, Mr. Hayes acknowledged that Mr. Bohrer did not say that he was involved in the murder of Ms. Allen. (HT pg. 209). Defendant's continues in this pattern of exaggeration and distortion by attempting to portray Jennifer Wescott as an accomplice to the three new "suspects" that he has offered up. Specifically, Defendant claims that “the alternative suspects (Steen, Breckenridge, Bohrer, and Wescott)...” were linked. (4 122(iii) of Leave Application). Defendant never actually bothers to explain what exactly Ms. Wescott did to directly participate or “solicit, request, command, importune, or intentionally aid that person or persons to engage in that conduct” and did so with the state of mind required for the offense.” (Penal Law § 20.00). For the sake of argument, even if every word that both Ms. Priest and Ms. Wescott said in the recorded phone call were true, and even if everything Ms. Priest says Mr. Steen told her was true, all that Ms. Wescott did was be home when the other three brought Ms. Allen there. (See Ms, Priest’s statement of 2/28/13 at Defendant's Letters and Filings (DLF) pg 29-31 and HE 35 (a transcript is at DLF pg 45-56). As the Criminal Jury Instruction states “mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with a perpetrator of a crime, does not by itself make a defendant criminally liable for that crime.” (CJI2d[NY] Penal Law § 20.00). Instead, the alleged accomplice must solicit, request, command, importune, or intentionally aid with the intent to commit the crime. Even if this Court were to accept all of the evidence in the light most favorable to the Defendant, he cannot point to any evidence that shows Ms. Wescott participated in the abduction and presumed killing of Ms. Allen. Defendant has tried to portray Ms. Wescott as an accomplice in order to justify admitting the recorded phone call. Otherwise, the recorded phone call is a 39hearsay conversation between two witnesses that does not fall under any recognized exception, such as a declaration against penal interest. With regard to Wescott herself, the recorded phone call between her and Tonya Priest is 0 contradictory and wholly inconsistent that the Hearing Court correctly gave it no weight. In support of his motion, Defendant has selectively chosen portions of the recorded conversation with Ms. Wescott, highlighting only those statements that implicate or relate to Steen, Bohrer, and Breckenridge. Defendant has argued that Ms. Wescott’s statements regarding these three men must be true because she did not know she was being recorded. However, Defendant has completely ignored the fact that in that same recording, Ms. Wescott stated that, as far as she knew, the Thibodeaus were responsible for the abduction and murder of Ms. Allen. If this Court were to accept Defendant's logic, this recorded phone call equally implicates Defendant. Thus, the self-contradictory nature of the phone call ultimately makes it unreliable, as the Hearing Court concluded. Defendant claims the new witnesses and evidence warrant a new trial because a reasonable probability exists that it would result in different verdict. However, upon closer examination, the evidence offered in support of the motion is woefully lacking in credibility and reliability, and much of it is simply inadmissible. For example, Defendant apparently desired that William Pierce’s testimony be accepted by the Hearing Court without question. In 2014, Mr. Pierce came forward for the first time and told investigators he had witnessed Defendant abduct Ms. Allen, (HT. 976-77, 1008-011). Mr. Pierce indicated that he saw a news report of Defendant in 1994 and was certain that he had seen Defendant in the D&W parking lot abducting Heidi Allen on Easter of 1994, (HT. 1010). After coming forward and identifying Defendant as the perpetrator, Mr. Pierce saw a photograph of 40James Steen in the newspaper. The photograph was taken around the time Steen’s arrest in 2010 for murder and showed Steen in a jail uniform, Upon seeing this suggestive photograph, Mr. Pierce came to believe that Steen was the person he saw in the D&W parking lot. (HT. 977-78). ‘The fact that Mr. Pierce, in a short period of time, identified two separate individuals (including the defendant) of committing the same crime certainly calls his credibility and reliability in to question. That fact alone is enough for the Hearing Court to conchide that Mr. Pierce’s testimony would not have changed the verdict. Mr. Pierce’s credibility and reliability, however, is further diminished because he was simply wrong on certain immutable facts when he testified. He testified that the woman he saw get struck in the parking lot of the D&W was wearing a black or blue puffy coat. (HT. 985-87). The trial testimony is quite clear that Ms. Allen was not wearing anything close to a pufly blue coat. (Tr. 1134, 1192-93, 1230-31, 3249). Ms. Allen was wearing blue jeans and gray sweatshirt that said Syracuse in green and blue plaid. (Tr. 1134, 1230-31, 3249). Of course, Defendant may argue that “there was a coat at the D&W she could have put on when she went outside.” (HT 2281). This argument, though, is pure speculation because there is no evidence in the trial of the existence of such coat in the D&W. Additionally, Ms. Allen had blonde or light brown hair (Tr. 1192-93, 1231). The woman Mr. Pierce testified he saw on Easter Sunday had “dark hairy” it wasn’t “black, but it wasn’t real t.” (HT. 985). If Mr. Pierce in fact witnessed the events he described, the woman he saw and Ms. Allen appear to be two different people. Of crucial importance, however, is Mr. Pierce’s description of the weather and road conditions at the time of the Ms. Allen’s abduction. The Hearing Court found, “Pierce testified that there was three to six inches of slush on the road that morning, yet the pictures from the D&W only show a partially wet road, not one that was covered in inches of slush.” (CCD pg. a93) (page and exhibit references omitted) (HT 980 (Exhibit UU)). Exhibit UU of the D&W was a picture reflecting the conditions of the D&W around 8:20 am on April 3, 1994. (HT. 2274-75), While the copy of the picture enclosed with the Defendant’s motion is very dark, it shows, as the Hearing Court found, a wet road and no slush. (CCD pg. 83). With regard to the weather conditions at the time, Mr. Pierce testified it was sunny because he remembered having his sunglasses on. (HT 983) (CCD 83). Initially, Defendant attacks the Hearing Court's factual determination because the “account of slush on the road matched the testimony from the prosecution’s own trial witnesses.” (4136 of Leave Application). Defendant, in an another attempt to distort and exaggerate the evidence, then cites three witnesses (Donald Neville, William Cowen, and Brittany Link) who testified about the weather and road conditions at different times or different locations than Ms. Alllen’s abduction. Donald Neville testified about the road conditions and weather at Defendant's house on Kenyon Road (Tr. 1786), and on near the Kwik Fill at the intersection of SR 104 and SR 69. (Tr. 1810). Defendant apparently combines Donald Neville, Sr. with his son, Donald Scott Neville, when he cites page 1962 of the trial transcript. Donald Scott Neville testified about the road conditions near Defendant’s home on Kenyon Road at 10:30 am. (Tr. 1962). Similarly, William Cowen testified about the road and weather conditions near Defendant's home on Kenyon Road at about 8:35 am. (Tr. 1868-70). Finally, Brittany Link testified about the weather conditions on Kenyon Road when she woke up. (Tr. 1846). Itis a widely known and common experience to the residents of Oswego County that weather and road conditions may differ wildly within the county, and the weather may rather suddenly change in the same area. Defendant has attempted to take witness accounts of weather 42conditions from locations that are several miles from the D&W, some of which were more than an hour after the kidnapping, to bolster the otherwise unreliable testimony of Mr. Pierce In contrast, the witnesses who were near the D&W immediately before or after Ms. Allen’s abduction describe weather conditions as being nothing like that described by Mr. Pierce. Mr. Swenszkowski, who passed Richard Thibodeau’ van on the way to the D&W, testified that the weather was “kind of drizzly, raining on and off, not too warm.” (Tr. 1225). Mr. Wiltse, who arrived just before Mr. Swenszkowski, described the weather as pouring rain, (Tx. 1205- 1206). Mr. Biven's, who witnessed the abduction and identified Richard Thibdoeau’s van as the one involved, testified the weather as “raining, a little snow in the air. It was a bluish hazy day.” (Tr. 1289). Likewise, Inv. Herbert Yerdon testified that he arrived at the D&W at 8:20 am and that the weather was nasty, cold with a light rain, (HT 2274). He identified HE UU as a photograph depicting the D&W as it was at the he arrived on April 3, 1994, (HT 2274-75). Inv. ‘Yerdon did testify that later that day, after he had been at the D&W for a while, it began to snow and started covering everything up. (HT. 2275-2279). No one who was at or near the D&W in 1994 at the relevant time describes the road and weather conditions as sunny with slush on the road. Mr. Pierce's account is contradicted by the reliable testimony of several other witnesses, all of whom testified closer in time to the actual event. As Mr. Pierce has no other verifiable fact correct, it strains sound logic, common sense. and good judgment to accept the accuracy and reliability of his 20-year old identification of a person he saw for about 20 seconds from approximately 60 feet away. (HT. 1017-1020). Defendant attempts to justify Mr. Pierce's failure to come forward for over 20 years claiming that “it was not until 2014 that Pierce had any need to come forward.” Mr. Pierce offered various explanations about why he did not come forward or get involved in the most 43highly publicized case in Oswego history, and they are generally contradictory. Initially, Mr. Pierce said he thought he witnessed a domestic dispute between two Hispanic migrant workers, and he did not want to get involved. (TR 986-88, 1000-002). Later, Mr. Pierce testified he saw the newspaper coverage of the case, and drew a beard on the picture of Defendant and was certain at that time it was Defendant. (HT 1005-1010). Therefore, he did not come forward 20 years earlier. (HT 1005-1010). Finally, Mr. Pierce offered that “I figured there was so many people that saw the incident that one of them should have gone forward too, and if they'd stepped forward, I'd have stepped forward. At the time, I didn’t want to get involved.” (HT 1013). Mr. Pierce’s credibility is undermined because his explanation that he did not care about the domestic incident is contradicted by the fact that he drew a beard on Defendant's picture showing concesn that he wanted to confirm the police had the right guy. His satisfaction that the police had the right guy contradicts his final explanation that he would come forward once other people did. Mr. Pierce’s various contradictory explanations only serve to undercut his credibility. ‘The Hearing Court had ample evidentiary support and justification for holding thet to give any credence to Mr. Pierce's identification of Steen would be to “ignore common sense and discredit previous judicial reliance upon vast scientific research” regarding the reliability of eyewitness identification testimony. The Heating Court carefully examined the evidence Defendant put forth and made appropriate credibility determinations that should be accorded great weight, especially because those conclusions have overwhelming support in the tecord of both the hearing and the trial transcript. For the foregoing reasons, the Heating Court correctly decided defendant's new evidence claim and denied his motion on that ground, 44THE HEARING COURT PROPERLY RULED ON ALL OF THE EXCLUDED ‘TESTIMONY BECAUSE THE EVIDENCE WAS EITHER REMOTE OR IRRELEVANT Defendant contends he was denied Due Process when the Hearing Court denied the request to present certain evidence. Each category of evidence will be discussed in turn. CRIMINAL HISTORY OF MICHAEL BOHRER ‘The Defendant seeks to admit the criminal history of Michael Bohrer as it relates to: (@ a 1981 criminal conviction for unlawful imprisonment from Wisconsin; (ii) a disorderly conduct conviction from 1980 in Wisconsin; (iii) a 1985 case of an assault on a woman in her home in Beacon City, New York, in which no one was ever arrested; and (iv) the alleged sexual, emotional, and physical abuse of his children. Initially, Defendant called Mr. Bohrer and attempted to impeach his own witness about a prior criminal conviction, The Hearing Court prevented Defendant from doing so under People vy. Sorge, 301 NY 198 (1950) Defendant next attempted to call the victim of the 1981 unlawful imprisonment offense that occurred in Wisconsin. In the alternative, Defendant sought to enter documents relating to the criminal conviction into evidence. Defendant claims that this evidence showed Bohrer had motive, the know-how, the wherewithal, and experience to brazenly and forcefully kidnap a young female. (§ 146 of Leave Application). Additionally, Defendant claims all of this evidence is “relevant because it was similar in nature to the Allen abduction. (§| 147 of Leave Application), ‘The Hearing Court ruled that the Defendant had failed to establish any relevance of the evidence, other than to prove propensity to commit a crime, The Hea 1g Court found that Defendant failed to establish “a train of facts or circumstances as tend clearly to point out [someone] besides the [defendant] as the guilty party.” (CCD 33-34). Defendant offers no 45explanation of how either the Beacon City assault or the alleged sexual abuse of Bohrer’s children is evidence of anything other than propensity. There is no allegation that Ms. Allen was assaulted in her home or that Bohrer was related to Ms. Allen as a child and sexually abused her. With regard to the two Wisconsin convictions, Defendant failed to show any link or relevance to this case other than Bohrer had a conviction for unlawful imprisonment and disorderly conduct. The Hearing Court found there were no unique facts linking the Wisconsin crimes to Ms, Allen. (CCD 27). Defendant failed to establish any distinguishable modus operandi that would allow a jury to conclude that Mr. Bohrer committed this offense based upon the unique facts of the Wisconsin offenses. ‘Al the heart of Defendant's argument is the desire to introduce propensity evidence. Defendant essentially argues that because Bohrer was convicted of unlawfully imprisoning one ‘woman, that fact is automatically admissible in Defendant’s case to prove an alternative suspect. obvious on its face: it The problem of admitting such evidence based upon e link of this nature i would mean that anyone with a prior conviction of an arguably similar offense automatically creates an alternative suspect. The Hearing Court said it better when it wrote, “If Defendant were allowed to admit a conviction based on these broad facts, i.e. that Michael and John Bohrer followed a woman in a parking fot around 1:00 am and attempted to put her in their car, then defendant would be casting involving anyone who lived in or around the vicinity of Oswego County in 1994 and who had a prior ten to fifteen year old out-of-state false imprisonment conviction involving a woman.” (CCD 27-28), OTHER EVIDENCE ALLEGEDLY CORROBORATING BOHRER’S CULPABILTY, Defendant challenges the Hearing Court’s denial of the admission of: (i) various documents written by Michael Bohrer about the case and found in his possession; (ii) a profile 46report done by the FBI; (iii) evidence of bracelet found in the mailbox of a cousin of Ms. Alllen’s; and (iv) testimony of Bohrer’s brother John Bohrer. The Hearing Court found all of the evidence “either too speculative, immaterial, unreliable, based upon hearsay, or, moreover, irrelevant.” (CCD 31). Defendant links the first two pieces of evidence into one argument, claiming the writing and the FBI profile are proof that Bohrer committed the crime. (4 154-156 of Leave Application). The Hearing Court ruled the writings were inadmissible because they were hearsay and not within the declarations against penal interest exception to the hearsay rule, (CCD 18-19). By linking the FBI profile and the writings, Defendant attempts to get around the hearsay by arguing that writings show that Mr. Bohrer did what the FBI profile said the perpetrator would do. This argument still fails because a profile type testimony is almost universally precluded. People v. Berrios, 150 Mise.2d 229, 230-31 (Bronx Sup. Ct. 1991); see also People v. Neer, 129 AD2d 829, $30 (3"! Dept. 1987) lv. denied 70 NY2d 652 (1987). Defendant then argues that he should have been allowed to present testimony from Melissa Adams, Ms. Allen’s cousin, that she received a bracelet belonging to Ms. Allen in her mailbox some years after the abduction. The Hearing Court found that there was no proof set forth that it was Ms. Allen’s bracelet and no evidence of who put it Ms. Adam’s mailbox. (CCD 38-39). Defendant claims that Ms. Adams clearly identified the bracelet as Ms. Allen’s and that because Mr. Bohrer possibly overheard a conversation about the bracelet that it can be inferred that Mr. Bohrer put the bracelet in Ms. Adam’s mailbox. The inference is remote because Ms ‘Adams does not know when the bracelet was left. How can the inference be made that Bohrer left the bracelet when we have little or no idea when it was left? 47Furthermore, Defendant points to no reliable testimony that Ms. Allen had the bracelet on when she was abducted. Nothing in the trial record shows she was wearing a bracelet. If Ms. Allen did not have the bracelet on her on April 3, 1994, then her abductor could not have put it Ms. Adam’s mailbox. Defendant contends an appeal is warranted because he was not allowed to call John Bohrer. The attachments to the Motion on Appeal contain three affidavits from John Bohrer. ‘They are located at pages 595-596, 742-743, 846-47 of DFL. At page 743, John Bohrer says he “remember{ed] 2 person named Thumper when I lived in Mexico, NY.” The affidavit on 742-43 contains no description of “Thumper” nor a statement that Michael Bohrer actually met “Thumper.” While James Steen is known to be called “Thumper,” the lack of description requires an assumption or speculation to show that John Bohrer means James Steen. Likewise, the affidavit on 742-43 does not state that ael Bohrer met “Thumper” and therefore requires additional speculation to infer that Michael Bohrer met “Thumper.” Given that John Bohrer moved to Mexico before Michael Bohrer, according to paragraph 4 of that affidavit (DLF 742), it could be equally speculated that John Bohrer met “Thumper” on his own without Michael Bohrer's knowledge. In the third affidavit given by John Bohrer (DLF 846-47), John Bohrer states that he lived in Mexico “not far from a convenience store” and he and Michael went to the store at some point in 1992 or 1993 to “see if the broad was working there.” (DLF 846). No description of the store or the “broad” is given. Given the complete lack of specificity in John Bohrer’s affidavits, any potential evidence offered by John Bohrer would amount to speculation. ‘The Hearing Court, therefore, properly ruled the evidence inadmissible. 48APPLICATION OF THE STATEMENT AGAINST PENAL INTEREST HEARSAY, EXCEPTION Defendant argues the Hearing Court mechanically applied the declaration against penal interest exception to deny the admission of certain statements offered by Defendant. As the Hearing Court correctly set forth, an admission of a statement against penal interest has four prerequisites: 1) That the declarant must be unavailable to testify by reason of death, absence from jurisdiction, or refusal to testify on constitutional grounds; 2) the declarant must be aware at the time of its making that the statement was contrary to his penal interest; 3) the declarant must have competent knowledge of the underlying facts; and 4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability. People v. McFarland, 108 AD3d 1121, 1122 (4"* 2013). Defendant contends that an appeal is necessary because the Hearing Court's application of the penal interest exception limited its right to present a defense. ({ 162-171 of Leave Application). The Hearing Court found that Defendant failed to satisfy any of the prerequisites. (CCD 94). Defendant also argues that Hearing Court failed to apply a less strict standard because the Defendant was offering exculpatory evidence, citing, among other cases, Chambers v. Mississippi 410 US 284 (1973) and People v. Oxley 4 AD 3d 1078 (3"" Dept. 2009). “While a defendant has a constitutional right to present a defense, the right to present a defense does not give criminal defendants carte blanche to circumvent the rules of evidence.” People v. Hayes, 17 NY3d 46, 55 (2011). ‘The Hearing Court held, and the evidence showed, that none of the proffered statements had a reasonable possibility that the statements might be true. cf, People v. Deacon, 96 AD3d 965 (2™ Dept. 2012) leave granted, 19 N.Y.34 1025 (2012), and appeal dismissed 20 N.Y.34 1046 (2013). 49Initially, it is beyond question that Mr. Steen, Mr, Breckenridge, and Mr. Bohrer all testified at the hearing. Therefore, the first prong on all of these statements is unsatisfied. The statements of James Steen set forth in the written statements of Tonya Priest lacked any independent evidence assuring its truthfulness and reliability. As set forth by the Hearing Court, almost every important fact in Ms. Priest's statement is either directly contradicted by established facts or is lacking in corroboration. In her statement, Ms. Priest claimed that the three new "suspects" took Ms, Allen to Rice Road, where Jennifer Westcott lived with Roger Breckenridge. Ms. Allen was then beaten to death and carried across Rice Road to a cabin. The cabin was located in a clearing far back in the woods and to get to it Steen had to cross some railroad tracks. They then cut Ms. Allen up and put her under the floor boards of the cabin. (DFL 29-30). ‘The Hearing Court held that evidence presented contradicted Priest’s statement on almost every key point. Specifically, the cabin was not located in a clearing in the woods. (CCD 65- 66). More significantly, Ms. Wescott did not live on Rice Road. (CCD 77-79). The People presented the testimony of Darcy Purdy, who continuously lived at the referenced Rice Road address throughout 1993 and during all of 1994, including at the time of her wedding in September of 1994. (HT 2132-48). Ms Purdy’s testimony was corroborated by documentary evidence in the form of mail and a wedding registry from the church where Ms. Purdy got married. (HT 2132-48). While a cadaver dog indicated around the cabin, no remains were found, and the Hearing Court appropriately concluded that “whatever human odor the dog obtained, it did not belong to Ms. Allen’s remains.” (CCD 69) Investigator Joe Lisi from the Onondaga County Medical Examiner's Office testified that he had been on two other forensic excavations of cites before 50where cadaver dogs indicated the presence of human remains and none were found. (HT. 2185- 96). To the extent that Ms. Priest’s statements are directly contradicted by known facts, Defendant has failed to provide sufficient corroboration independent of the statement to satisfy the fourth prong for admitting declarations against penal interest. In this aspect, it’s also important to note that Ms. Priest was not called testify at the hearing, Defendant simply chose to admit the written statements that she had provided rather than having her testify and be subject to cross-examination so that the court could properly evaluate her credibility and reliability. Joseph Mannino testified that Steen told him that Ms, Allen was a “rat” and that Steen had hauled the van used to abduct her to Canada. (HT. 640-41), Mannino acknowledged, however, that the statement could have been mere conjecture because Steen never explained how he knew that he had hauled the particular van containing Heidi Allen to Canada. (HT. 646-47). Additionally, Mannino’s testimony was, as the Hearing Court found, inconsistent with his sworn statement, (HT. 651-52). The Hearing Court found, based on the hearing evidence, that no corroboration existed to show the trustworthiness of this testimony. (CCD 95). Additionally, because the Steen’s statements fail to explain his personal knowledge, the statements also failed to satisfy the third prong for admitting declarations against penal interest. Amanda Braley testified that in 2006 or 2007, she was at a party at Rodney “Shaggy” West's house, when she heard Steen say “You know me, Shaggy, I’m not afraid to go to prison, T'll go for anybody,” and “I can, however, tell you I will never see a day in prison for what we did to Heidi.” (HT 673). This evidence, however, was not set forth in the affidavit she gave to Defendant. (HT 689-93). The Hearing Court determined that Ms. Braley was not credible for failing to disclose this particular statement in her affidavit to Defendant. (CCD 95). Ms. Braley 51also provided testimony regarding Breckenridge, Ms. Braley believed Breckenridge was involved in Ms. Allen's disappearance, but still voluntarily socialized with him after hearing, Breckenridge’s statements, (HT. 676-81). In 2002 or 2003, Breckenridge reportedly said that “he took that bitch to the scrap yard in the van, they had it crushed, and that she was shipped to Canada.” (HT 669-70). While Ms. Braley testi ied she believed that statement, she admitted that in 2006 she went into the woods with Tonya Priest to look for Ms. Allen’s remains. (HT. 694- 95). Searching in the woods for Ms. Allen’s directly contradicts and undermines her purported belief in Breckenridge’s supposed statement that she was taken to Canada and crushed. If Ms Braley did not actually believe Breckenridge's statements, it is reasonable for the Hearing Court to question or discount the reliability of the same. ‘The Hearing Court concluded that Ronald Clarke’s testimony regarding Steen’s statements that Ms. Allen was “long gone now”, “gone to Canada”, and that the police had the wrong guys were not shown to be based upon personal knowledge. (CCD 99). As Clarke acknowledged, Steen did not state a basis for knowledge and may have been expressing an opinion or belief on the subject since he never admitted to being involved. (HT. 1063) Megan Shaw testified that, on two occasions in 2010, Steen told her he disposed of Ms. Allen’ s body in order to be part of the Vicious Circle Motorcycle gang. (HT 759-61, 767-68) According to Ms. Shaw, Steen told her that Ms. Allen’s body was in a cabin in Parish, and showed her the location on his phone. (HT 760-61). At no point did Steen admit to killing or abducting Ms. Allen. At most he admitted to disposing of Ms. Allen’s body and would at best be guilty of Tampering with Physical Evidence in violation of Penal Law Section 215.40. At the time the alleged statements were made, the statute of limitations would have expired, and therefore the statements were not against his penal interest. 52Additionally, Steen’s alleged statements to Megan Shaw are directly contradicted by the testimony of Lance Mason. Mr. Mason testified that the Vicious Circle Motoreycle Club was not founded until 2000, six years after Ms. Allen disappeared, (HT 2329-31). The Hearing Court credited Mr. Mason’s testimony. (CCD 59). The events described by Megan Shaw simply could not be true. Christopher Combes testified that Roger Breckenridge told him that “We chopped her up, put her in a wood stove and put her in a vehicle and sent her to Canada.” (HT 1129-31). Combes himself testified that he did not take the statements seriously. (HT 1131-34). The Court found that the statements lacked credibility because Combes himself did not believe them. (CCD 60). Again, the Defendant has failed to provide any evidence establishing the reliability of those ‘statements. Jessica Howard testified that Breckenridge told her that Ms. Allen was a “rat” and would not be found. (HT 1150-51). Ms, Howard was under the influence of medications that she admitted impacted her mental faculties, including her ability to recall events from years ago. (CCD 60) (HT 1167-71). The Hearing Court, wi ample support in the record, declined to give her testimony credibility, ‘Tyler Hayes testified that Bohrer, in a conversation at the Liberty Bell bar in 2000, said “I know who did it” and “I know the whereabouts of Heidi Allen’s body.” (HT 200-01). These statements, as pointed out by the Hearing Court, are not admissions that Bohrer was involved in the abduction of Ms. Allen, (CCD 62). Without some kind of admission of wrongdoing, Mr. Hayes's testimony does not fall within the statement against penal interest hearsay exception. Finally, Danielle Babcock testified that Bohrer made her uncomfortable by saying he was going to do us like he did Heidi. (HT 632). Like so many other defense witnesses, Ms. Babcock 53did not take the statements seriously because she thought they were “vague threats.” (HT 635). Therefore, the Hearing Court did net view them as reliable or trustworthy enough to warrant admission at a trial. (CCD 63), The Hearing Court applied appropriate evidentiary standards and correctly ruled that none of the offered statements are admissible. As courts have recognized, “Implicit in th{e] ground for vacating a judgment of conviction is that the newly discovered evidence be admissible.” People v. Tankleff, 49 AD3d 160, 182 (2™ Dept. 2007). To the extent that Defendant failed to satisfy multiple prongs for admitting hearsay statements as declarations against penal interest, the Hearing Court correctly found that such statements could not be received as evidence at trial, which necessarily means that such evidence would not change the verdict. For the foregoing reasons, an appeal is unnecessary. THE HEARING COURT INDIRECTLY ADDRESSED THE ACTUAL INNOCENCE. CLAIM WHEN IT FOUND THAT A DIFFERENT VERDICT WOULD NOT RESULT. Admittedly, the Hearing Court did not explicitly rule that Defendant was not actually innocent. Indirectly, the Court found that defendant was not actually innocent when it held: “The Court is hard pressed to see how any of the claimed newly discovered evidence presented at the hearing, if allowed at trial, would likely result in different outcome.” (CCD 39). If none of the evidence would have resulted in a different outcome, then the People fail to see how Defendant established actual innocence. To allow an appeal on this basis would be promoting form over substance. 54CONCLUSION For all of the foregoing reasons, the Hearing Court correctly decided all matters of fact and correctly ruled on all matters of law. The Hearing Court properly concluded that Defendant failed to establish that the People committed a Brady violation. Further, after assessing the credibility and reliability of witnesses, the Hearing Court properly concluded that Defendant has failed to offer new evidence that would be admissible at trial and which would result in a different verdict. Implicit in the Hearing Courts final Decision is a finding that Defendant is not actually innocent, For these reasons, there is no reason for this Court to Grant a Certificate of Appeal, and the People respectfully request that this Court deny the requested relief. GREGORY S. OAKES District Attomey ce: Lisa Peebles, Esq. 55.