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People v. Thibodeau

Supreme Court of New York, Fourth Department

June 9, 2017

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
GARY THIBODEAU, DEFENDANT-APPELLANT.

          LISA A. PEEBLES, FEDERAL PUBLIC DEFENDER, SYRACUSE, FOR DEFENDANT-APPELLANT.

          GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO, FOR RESPONDENT.

          PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, AND SCUDDER, JJ.

         Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Oswego County Court (Daniel R. King, A.J.), dated March 2, 2016. The order denied the motion of defendant to vacate a judgment of conviction pursuant to CPL 440.10.

         It is hereby ORDERED that the order so appealed from is affirmed.

         Memorandum:

         Defendant appeals from an order denying, after a hearing, his CPL 440.10 motion seeking to vacate a judgment convicting him upon a jury verdict of kidnapping in the first degree (Penal Law § 135.25 [3]). Defendant's conviction arises from the April 3, 1994 abduction of the victim from the convenience store where she worked in the Town of New Haven. The victim has not been heard from since then, nor has her body been found. Defendant and his brother were jointly indicted for the kidnapping but were tried separately, and the People's theory of the case was that they had abducted the victim using a van owned by defendant's brother. Defendant was tried first, beginning in May 1995, and convicted. His brother was subsequently acquitted. We affirmed the judgment of conviction on defendant's direct appeal (People v Thibodeau, 267 A.D.2d 952, lv denied 95 N.Y.2d 805).

         In February 2013, a woman named Tonya Priest gave a sworn statement to the police alleging that James Steen told her in 2006 that he, Roger Breckenridge, and Michael Bohrer had abducted the victim using a van, brought her to Breckenridge's residence, killed her, and disposed of her body and clothes at a nearby cabin. Steen also allegedly told Priest that Breckenridge's onetime girlfriend, Jennifer Wescott, had been present when they brought the victim to the residence. In March 2013, Priest placed a recorded telephone call to Wescott, and Wescott seemed to confirm that Steen, Breckenridge, and Bohrer had brought the victim to the residence in a van. Wescott, however, made other seemingly contradictory statements during the call, including that she had, in essence, surmised well after the fact that the victim had been the person in the van, and that, as far as she knew, defendant had killed the victim. When interviewed a few days after the call, Wescott told the police that she had lied to Priest, that she and Breckenridge never lived where Steen allegedly said the victim had been taken, and that she did not have any relevant information about the case. Megan Shaw, who was married to Priest's former husband and had discussed the case with Priest, gave her own statement to the police in 2013 alleging that Steen told her in early 2010 that he had helped dispose of the victim's body after she was killed by members of a motorcycle club.

         In 2014, defendant's appellate counsel reviewed the file kept by the trial attorney for defendant's brother and found documents concerning the victim's status as a confidential informant (CI) for the police. Those documents established that a deputy had lost the victim's "CI file, " which included her personal information and a photograph, in late 1991 in the parking lot of the same store from which she was abducted in 1994, that another deputy had recovered the file about a month later, and that an investigator had located it in storage about a week before defendant's trial began. Defendant's trial counsel asserted in an affidavit that he had not seen those documents or the CI file itself (collectively, CI information), and that he could have used the CI information at trial to establish that other people had a motive to harm the victim.

         Defendant moved in July 2014 to vacate the judgment of conviction based on the People's alleged Brady violation in failing to disclose the CI information (see CPL 440.10 [1] [h]), and based on newly discovered evidence (see CPL 440.10 [1] [g]). Defendant also contended in his reply papers that he was actually innocent. County Court conducted a hearing on the motion.

         With respect to the Brady claim, defendant's trial counsel testified that he had not seen any of the CI information. The trial prosecutor, by contrast, testified that the deputies' reports concerning the victim's status as a CI and the loss of her file had been made available to the defense in December 1994, and that the investigator's report and CI file had been disclosed the day after the investigator found the file in storage.

         With respect to the newly discovered evidence claim, Priest's 2013 statement and a transcript of her recorded call to Wescott were admitted in evidence, but defendant declined to call Priest as a witness at the hearing. Shaw testified consistent with her 2013 statement, and defendant called several other witnesses to testify to admissions allegedly made by Steen, Breckenridge, and Bohrer. In some of the alleged admissions, the declarant described participating in the disposal of the victim's body. In others, the declarant said that he had done something to the victim without specifying what he had done, e.g., "I'll do you as I did [the victim], " and "I will never see a day in prison for what we did to [the victim]." In the remaining alleged admissions, the declarant said things to the effect that defendant did not commit the crime or that the victim would not be found, but did not directly connect himself to her disappearance.

         Defendant also presented the testimony of William Pierce, who testified that he saw a man strike a woman in the head near a van at the store on April 3, 1994, and that he believed, after seeing a photograph of Steen in the newspaper, that Steen was the man he saw. Pierce further testified that the van he saw was not the van owned by defendant's brother. Pierce admitted, however, that he had not reported his observations at any time prior to July 2014, that even then he had initially believed that defendant was the man he saw, and that he had been shown a photo array containing a photograph of Steen from 1988 and was unable to identify him. Pierce had also estimated that the man he saw was 35 to 45 years old. Defendant was 40 years old in April 1994, and Steen was 23.

         Steen, who was sentenced to life in prison without parole in 2011 for killing his wife and his cousin in September 2010 (People v Steen, 107 A.D.3d 1608, lv denied 22 N.Y.3d 959), testified at the hearing, as did Breckenridge and Bohrer. They each denied abducting the victim or making the admissions attributed to them, and Steen and Breckenridge further testified that they did not know Bohrer in 1994. Wescott testified that she did not know anything about the crime, and that she was 17 years old in April 1994 and did not meet Breckenridge until later that year. There was testimony at the hearing that Priest "always wanted to be the center of attention, " and that the police did not think she was credible in light of "discrepancies in her story" and attempts on her part to link the death of her second husband in 2010 to the abduction of the victim; that Breckenridge was likewise known as "a talker" and "an attention getter" who was not to be taken seriously; that Bohrer was mentally unstable and obsessed with the case; and that the motorcycle club referenced in Shaw's testimony did not exist until 2000.

         The court denied defendant's motion, concluding, inter alia, that the CI information had been disclosed to his attorney, that the alleged third-party admissions were inadmissible hearsay rather than declarations against penal interest, and that Pierce's testimony was not credible. The court did not specifically address defendant's actual innocence claim.

         We reject defendant's contention that the court erred in denying that part of his motion alleging a Brady violation. The record supports the court's determination that defendant failed to establish that the CI information was suppressed by the People (see People v Carrasquillo-Fuentes, 142 A.D.3d 1335, 1339, lv denied 28 N.Y.3d 1143; People v Ulrich, 265 A.D.2d 884, 884- 885, lv denied 94 N.Y.2d 799; see generally CPL 440.30 [6]; People v Fuentes, 12 N.Y.3d 259, 263, rearg denied 13 N.Y.3d 766). The conflicting testimony of defendant's trial counsel and the trial prosecutor with respect to whether the CI information was disclosed, as well as the competing inferences to be drawn from documentary and other evidence bearing on the issue, presented an issue of credibility that the court was entitled to resolve in favor of the People (see People v Cox, 297 A.D.2d 589, 589, lv denied 99 N.Y.2d 557; see generally People v Campbell, 106 A.D.3d 1507, 1508, lv denied 21 N.Y.3d 1002). In view of our determination, we do not address the court's alternative grounds for rejecting defendant's Brady claim.

         We also reject defendant's contention that the court erred in denying that part of his motion alleging newly discovered evidence. The decision whether to vacate a judgment of conviction based on newly discovered evidence is addressed to the sound discretion of the motion court (see People v Backus, 129 A.D.3d 1621, 1623-1624, lv denied 27 N.Y.3d 991; People v Deacon, 96 A.D.3d 965, 967, appeal dismissed 20 N.Y.3d 1046), and "[i]mplicit in [this] ground for [vacatur] is that the newly discovered evidence be admissible" (People v Tankleff, 49 A.D.3d 160, 182 [internal quotation marks omitted]; see Backus, 129 A.D.3d at 1624).

         First, we conclude that the court was entitled to determine, in view of the circumstances of Pierce's identification of Steen, that his testimony was simply not credible (see People v Jimenez, 142 A.D.3d 149, 157; People v Britton, 49 A.D.3d 893, 894, lv denied 10 N.Y.3d 956; People v Watson, 152 A.D.2d 954, 955, lv denied 74 N.Y.2d 900). A hearing court's credibility determinations are "entitled to great weight" in light of its opportunity to see the witnesses, hear the testimony, and observe demeanor (People v Smith, 16 A.D.3d 1081, 1082, lv denied 4 N.Y.3d 891; see People v Hincapie, 142 A.D.3d 886, 886; see generally People v Bleakley, 69 N.Y.2d 490, 495), and we do not agree with the dissent that Pierce's testimony presents an appropriate situation for us to substitute our own credibility determination for that of the hearing court (cf. Tankleff, 49 A.D.3d at 178-179).

         Next, we conclude that the court properly determined that all of the alleged third-party admissions were hearsay not within any of the exceptions to the hearsay rule and were therefore inadmissible (see generally People v Brensic, 70 N.Y.2d 9, 14, remittitur amended 70 N.Y.2d 722; People v Meadow, 140 A.D.3d 1596, 1598, lv denied 28 N.Y.3d 933, reconsideration denied 28 N.Y.3d 972). The hearsay exception for declarations against penal interest applies where (1) the declarant is unavailable to testify; (2) the declarant was aware when making the declaration that it was contrary to his or her penal interest; (3) the declarant had competent knowledge of the relevant facts; and (4) there is "sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability" (Brensic, 70 N.Y.2d at 15; see People v Shortridge, 65 N.Y.2d 309, 312; People v Settles, 46 N.Y.2d 154, 167). "The fourth factor is the most important' aspect of the exception" (People v Shabazz, 22 N.Y.3d 896, 898). Where a declaration is offered to exculpate the defendant, the standard of admissibility is "more lenient, " and " [s]upportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true' " (People v Soto, 26 N.Y.3d 455, 462; see People v Pierre, 129 A.D.3d 1490, 1492; Deacon, 96 A.D.3d at 968).

         Even assuming, arguendo, that the willingness of Steen, Breckenridge, Bohrer, and Wescott to testify at the motion hearing does not preclude the applicability of the exception for declarations against penal interest (see People v Oxley, 64 A.D.3d 1078, 1083-1084, lv denied 13 N.Y.3d 941; cf. People v Sanchez, 95 A.D.3d 241, 247-248, affd 21 N.Y.3d 216), we conclude that the exception is inapplicable. Several of the alleged admissions did not contain enough incriminating detail to show that the declarant was knowingly speaking against his or her penal interest (see generally People v Castor, 99 A.D.3d 1177, 1180-1181, lv denied 20 N.Y.3d 1010), or that he or she had competent knowledge of the underlying facts. More significantly, defendant failed to establish that the alleged admissions were reliable (see People v Velazquez, 143 A.D.3d 126, 135, lv denied 28 N.Y.3d 1189; People v Bedi, 299 A.D.2d 556, 556, lv denied 99 N.Y.2d 612; People v Wallace, 270 A.D.2d 823, 824, lv denied 95 N.Y.2d 806).

         Wescott's statements in the recorded call, in particular, made little sense on their face, and she recanted them shortly thereafter (see People v Buari, 50 A.D.3d 483, 484, lv denied 11 N.Y.3d 735; People v Pugh, 236 A.D.2d 810, 811, lv denied 89 N.Y.2d 1099; cf. People v Bellamy, 84 A.D.3d 1260, 1261-1262, lv denied 17 N.Y.3d 813). Even assuming, arguendo, that the court could have reasonably concluded that Wescott truthfully implicated Steen, Breckenridge, and Bohrer in her statements to Priest and then testified falsely at the hearing in an attempt to avoid the consequences of those statements, we conclude that the court was entitled to instead resolve the issue of Wescott's credibility in favor of the People, thereby concluding that her hearing testimony was credible and her initial statements to Priest were not (see generally Smith, 16 A.D.3d at 1082). Unlike our dissenting colleague, we do not believe that Wescott's statements to Priest "bore persuasive assurances of trustworthiness" that would render them admissible despite their hearsay nature (Chambers v Mississippi, 410 U.S. 284, 302).

         Apart from Pierce's testimony, which we have concluded that the court properly discredited, there was no evidence independent of the alleged admissions that tended to link Steen, Breckenridge, or Bohrer to the crime (cf. People v DiPippo, 27 N.Y.3d 127, 137-140; Oxley, 64 A.D.3d at 1082). Moreover, most of defendant's witnesses came forward only after the case attracted renewed media attention in 2014 (cf. Tankleff, 49 A.D.3d at 181-182); most of the alleged admissions were made long after the crime and defendant's conviction (see generally Shortridge, 65 N.Y.2d at 313); many of them were inconsistent with each other (see People v Feliciano, 240 A.D.2d 256, 257, lv denied 90 N.Y.2d 1011; People v Nicholson, 108 A.D.2d 929, 930; cf. DiPippo, 27 N.Y.3d at 138); and, as described above, the hearing testimony cast significant doubt on the credibility of at least Priest, Breckenridge, and Bohrer (see People v Penoyer, 135 A.D.2d 42, 44-45, affd 72 N.Y.2d 936; People v Thompson, 148 A.D.2d 763, 764, lv denied 74 N.Y.2d 748; see generally Shortridge, 65 N.Y.2d at 313). "[T]here is no rule requiring the automatic admission of any hearsay statement" (People v Hayes, 17 N.Y.3d 46, 53, cert denied 565 U.S. 1095), and " [c]orroboration of a hearsay declaration is not furnished by merely producing additional hearsay testimony' " with no indicia of reliability (Matter of Comstock v Goetz Oil Corp., 11 A.D.2d 847, 847; cf. Chambers, 410 U.S. 284 at 300-301). Although defendant presented evidence that trained dogs detected the possible presence of human remains near a "collapsed structure" in the general area where Steen allegedly told Priest the victim's body was buried, no remains were actually found there, and we conclude that the evidence regarding the dogs is too equivocal on its own to show a reasonable possibility that Steen's alleged admission to Priest might be true.

         In our view, the alleged weaknesses in the People's trial proof identified by the dissent do not tend to establish that the alleged admissions were reliable. In any event, we conclude that there was compelling circumstantial evidence at trial placing defendant at the store on the morning of the crime. It is undisputed that defendant's brother was there, and, whereas defendant testified at trial that he was not in his brother's company that morning or the previous night, the People presented testimony that defendant and his brother were together at a bar the night before the crime and the van owned by defendant's brother was at defendant's home shortly after the crime was committed. As the hearing court noted, there is no comparable evidence concerning Steen, Breckenridge, or Bohrer.

         In view of the inadmissibility of the alleged third-party admissions, we conclude that the court properly determined that the newly discovered evidence was not "of such character as to create a probability that" the verdict would have been more favorable to defendant if it had been received at trial (CPL 440.10 [1] [g]; see Backus, 129 A.D.3d at 1624-1625; Bedi, 299 A.D.2d at 556; People v Jones ...


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